Opinion
11-P-221
03-08-2012
DAVID S. NORBERG & another v. PATRICIA L. STEFANICK.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from a Superior Court judgment pursuant to G. L. c. 41, § 81BB, that reverses a decision of the Uxbridge planning board (board) denying the plaintiffs an 'Approval Not Required' (ANR) endorsement under c. 41, § 81P, with respect to a lot on Landry Lane. The board determined that Landry Lane is not a way and that, as a result, the requirements for such an endorsement were not met. Consequently, the board concluded that the property in question is subject to the subdivision control law, G. L. c. 41, §§ 81C-81GG.
Although it was a defendant below, the Uxbridge planning board did not file a notice of appeal and thus is not a party to these proceedings.
The plaintiffs sought review in the Superior Court, where the judge found that (1) Landry Lane is a public way for the initial 816.75 feet from its origin at its intersection with Richardson Street and (2) the extension of Landry Lane in a westerly direction from the 816.75 foot point was a 'way in existence' as the term is used in G. L. c. 41, § 81L, to the southwesterly corner of lot 3 as appearing on the plan endorsed ANR in 1988. The judge remanded the matter to the board to determine whether the way is sufficient and adequate for its proposed use. The Superior Court judgment is now appealed not by the board, but by the Stefanicks, who intervened as defendants below.
Standard of review. The defendants urge us to review the trial judge's decision de novo. They do so on the ground that the trial judge relied on documentary evidence, allowing us to conduct our own independent review of the same material. However, the proof below included not only documentary evidence but also testimony from five witnesses in the course of a two-day trial. The testimony was relevant to factual questions such as the physical location of Landry Lane and its extension beyond the 816.75 foot mark.
The credibility of witnesses and the weight to be accorded to their testimony is properly reserved to the trial judge, whose function in that regard we will not usurp on appeal. In these circumstances, the appropriate standard of our review is to accept the findings of fact of the trial judge unless they are clearly erroneous. Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1408 (1996).
Public way. An existing way acquires status as a public way in one of three ways: '(1) a laying out of public authority, in the manner prescribed by statute; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use . . . coupled with . . . acceptance by the public.' McLaughlin v. Marblehead, 68 Mass. App. Ct. 490, 495 (2007).
The judge found that Landry Lane was laid out and accepted as a 'Town Road' in 1798 and that the town voted to pay compensation to the property owner of the way. See Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct. 715, 716- 717 (2001) (the lack of payment of compensation an important factor in concluding that the way at issue was not laid out as a public way). In his thorough memorandum of decision, the judge discussed the evidence before him, considering also several matters highlighted by the defendants to suggest that Landry Lane was a private way. The judge's consideration of the evidence was entirely appropriate, and his finding that the plaintiffs had met their burden of proving that Landry Lane is a public way is not clearly erroneous.
'Way in existence.' The judge found that the extension is a 'way in existence' as defined by G. L. c. 41, § 81L. He based that conclusion on the board's 1988 ANR endorsement and two building permits issued for 46 and 57 Landry Lane in 1969 and 1988, respectively. While the building permits themselves were not physically in evidence, the judge was entitled to infer that for them to be approved, the extension had to be a way in existence. The judge also considered the testimony of the witnesses and ultimately concluded that, prior to the 1959 adoption of the subdivision control law, the lane extended beyond the original 816.75 feet from Richardson Street.
The defendants characterize the board's prior actions as mistakes, which it should now be allowed to correct. We discern nothing in the record, however, that would support that assertion. See Goldman v. Planning Bd. of Burlington, 347 Mass. 320, 324-325 (1964) (planning board need not 'repeat and enhance' the effect of a previous mistake involving the same way).
Conclusion. Based on the evidence before him, it cannot be said that the judge clearly erred in finding that Landry Lane is a public way and that its westerly extension is a way in existence.
Judgment affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),