Toothaker v. Planning Bd. of Billerica
| Decision Date | 05 November 1963 |
| Parties | Roger A. TOOTHAKER, Jr., et al. v. PLANNING BOARD OF BILLERICA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
P. Harold Ready, Lowell, for defendant.
No argument or brief for plaintiffs.
Before WILKINS, C. J., and WHITTEMORE, KIRK, SPIEGEL and REARDON, JJ.
The planning board of the town of Billerica has appealed from the final decree in the Superior Court which ruled that 'the subdivision of the petitioners' land is not subject to the 'subdivision control law' as set forth in G.L. c. 41, §§ 81K to 81GG,' inserted by St.1953, c. 674, § 7, as amended. The case was heard on a statement of agreed facts.
The plaintiffs own approximately 1,200 lots in a subdivision of over 1,800 lots on or adjacent to two public ways, Pond Street and Salem Road. The subdivision is shown on a plan recorded in 1914. Twenty-three ways are shown as within the subdivision, of which six or seven have been partically graded. The others are now partly covered with brush and trees. All save one, which has a width of sixty feet, are fifty feet in width. Several of the ways are shown with dead ends and a number of others have two-way access for their full length only as they join an unaccepted way which bounds the subdivision on the southeast. Most of the lots on the plan have frontages of twenty-five feet and areas of 2,500 square feet.
The subdivision control law became effective in Billerica on March 3, 1961. At that time 649 of the lots had been sold and were owned by others than the plaintiffs' predecessor in title who then owned all the other lots. Some of these 649 lots are now by the plaintiffs. Appurtenant to each of the 649 lots other than those fronting on a public way, is a right of way 'over the street upon which it is located either to Pond Street or [to] Salem Road.' At least one such lot is located on every way of the subdivision except four short dead-end ways at its rear.
Twenty dwelling houses have been built in the subdivision, the actual lot for each house comprising, on an average, ten of the subdivision lots. The subdivision is in a 30,000 square foot residence district zone, and the plaintiffs intend to conform to all zoning law requirements. The tract has not been registered. The building commissioner, on a ruling from the planning board, has refused permits pending compliance with the subdivision control law. 1
General Laws c. 41, § 81O provides in part: 'No person shall make a subdivision of any land in any city or town in which the subdivision control law is in effect unless he has first submitted to the planning board of such city or town for its approval a plan of such proposed subdivision, showing the lots into which such land is to be divided and the ways already existing or which are to be provided by him for furnishing access to such lots, and the planning board has approved such plan in the manner hereinafter provided. * * *'
Section 81L defines 'subdivision' as 'the division of a tract into two or more lots.' It exempts a subdivision wherein, 'at the time when it is made, every lot within the tract so divided has frontage on (a) a public way, or (b) a way shown on a plan theretofore approved in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. * * *'
Section 81FF provides in part that the 'recording of the plan of a subdivision in the registry of deeds before the subdivision control law was in effect * * * shall not exempt the land within such subdivision from the operation of said law except with respect to lots which had been sold and were held in ownership separate from that of the remainder of the subdivision when said law went into effect * * * and to rights of way and other easements appurtenant to such lots' (emphasis supplied).
The plaintiffs' tract is, plainly, a subdivision within the meaning of § 81L. Nothing in the exceptions to that definition exempts the plaintiffs' land. Nor can it be argued that the planning board lacks power under § 81O and § 81FF to regulate access to the lots of the 1914 plan. A purpose of § 81FF is to make it clear 'that plans of subdivisions [of unregistered land] in a city or town recorded prior to the going into effect of the law in such city or town shall be valid only with respect to lots held in separate ownership when the law went into effect in such city or town, and to rights of way appurtenant to such lots.' 1953...
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