Opinion
Civil Action No. 03-0082-C.
November 30, 2004.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Introduction
This is an action by three neighbors (the plaintiffs) against the O'Briens and the Gloucester Planning Board (the "Board"), alleging that the Board improperly approved the O'Briens' Roadway Improvement Plan ("RIP") which sought to extend and improve a right of way and to install a new water line under the way. The plaintiffs brought this action seeking to reverse the Board's decision of the Gloucester Planning Board (the "Board") and to prevent the O'Briens from completing construction on the way and on their property.
After a hearing and consideration of record below, this court treats the Board's Motion for summary judgment as a motion for judgment on the pleadings. For the reasons that follow, The motion is ALLOWED with a clarifying statement as further described below.
As discussed below, this case will be treated as one for certiorari under G.L. c. 249, § 4, and therefore summary judgment is inappropriate. Rather, the motion will be treated as a Motion for Judgment on the Pleadings, Mass. R. Civ. P. 12(c), as required by Superior Court Standing Order 1-96.
Background
The O'Briens own a parcel of land ("Lot 2") which is located near Dalton Avenue in Gloucester. The plaintiffs own property abutting the roadway the O'Briens seek to improve to provide access to Lot 2. The history of the ownership of the land leading up to the Board's approval of the O'Briens' RIP is as follows.
In 1969 Isabelle Lowe owned a large tract of land. That land included the area over which the disputed roadway is now proposed as well as land now owned by the plaintiffs. Isabelle Lowe submitted a plan to the Board (the "1969 plan") for an "approval not required" ("ANR") endorsement under G.L. c. 41, § 81P. The plan depicted a private way running from Dalton Avenue in a northerly direction with several subdivided lots on the easterly side of the way, including those now owned by the plaintiffs. In 1969, Lot 2, in its current form, did not exist; it was part of a larger tract (the "Naves Tract") which abutted the westerly side of the depicted way. The Board endorsed the plan ANR.
Depicted on the 1969 ANR plan (Essex County Registry of Deeds Book 114, plan 63) as "Virginia Naves."
In 1989, the O'Briens, who now owned the Naves Tract, obtained an easement from Isabelle Lowe to use the private way, as it was depicted on the 1969 plan, from Dalton Avenue to the northern boundary of the Naves Tract "for all the usual purposes for which public ways may be used in the City of Gloucester."
Isabelle Lowe did not own the Naves Tract, and that tract was not part of the 1969 subdivision plan.
In 1990, the O'Briens applied to the Board for, and received an ANR endorsement under G.L. c. 41, § 81P that Lot 2 (a subdivision of the Naves Tract) was not subject to the subdivision control laws. Lot 2, is the northern portion of the Naves Tract. It's eastern boundary abuts the westerly side of the private way. It is located approximately mid-way north along the way's depicted length. The plaintiffs' properties also abut the way (on both the east and west side) and one of them abuts the northern boundary of Lot 2. The Board endorsed the plan ANR with an additional notation that "no structure shall be erected on Lot 2 until the Planning Board finds that adequate access has been provided by an acceptable street."
Despite the depiction of the right of way on both the 1969 plan and the 1990 plan, the way has apparently never been completed. The extent to which, if at all, the way was developed in 1990 or has been developed today is not evident anywhere in the record, except that it apparently did not provide adequate access to satisfy the Board in 1990.
The statutory basis for endorsing the 1990 plan was apparently G.L. c. 41, § 81L(b), which provides that a division of a tract of land shall not be subject to the subdivision control law if every lot in the tract as divided would have frontage on a "(b) way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law . . ." Lot 2 had the requisite frontage upon the private way as it existed on the 1969 plan. The Board's 1990 ANR endorsement was not appealed.
From the record before the Court, it appears that the Board did not state its reasoning for giving the ANR endorsement. The city regulations currently state that: "In determining that the plan does not require subdivision approval under the Subdivision Control Law, the Planning Board shall state the reason why the plan is not subject to subdivision control law in the motion." City of Gloucester, Rules and Regulations Governing Subdivision of Land in Gloucester, MA. § 22.6.5. In any event, the Board's decision was not appealed.
In November, 2002, the O'Briens filed a RIP with the board seeking to extent and improve the private way to reach the proposed driveway on Lot 2. Pursuant to city regulations, the town scheduled a hearing and posted notice of the hearing in the local newspaper.
In addition, the O'Briens' counsel, Catherine A. Henry, avers that she called plaintiffs' counsel and both notified him of the meeting and discussed the merits of the RIP with him.
The hearing was held on November 24, at which the plaintiffs, who were represented by counsel, opposed the RIP application . Plaintiffs' counsel raised concerns about the O'Briens' legal right of access over the way as well as concerns about insufficient drainage and runoff resulting from the proposed improvements that would adversely affect the plaintiffs' properties. Counsel for the O'Briens argued in response that the O'Briens have a deeded easement over the private way (of which she had provided documentary proof), that there was only a very gentle grade and little anticipated runoff, that they didn't anticipate any drainage problems, that there were proposed catch basins, and that they could add more drains in the way as it is improved. There was a brief exchange of suggestions, comments, and questions between the Board, counsel, and a representative of the consulting firm that designed the RIP. From the minutes of the hearing it is unclear what, if any, technical design changes were to be incorporated into the plans submitted to the Board-aside from shortening the proposed length of the way.
The discussion addressed concerns how the plan dealt with "curvature balance", crowning, and using a particular type of packed gravel surface to deal with drainage.
The discussion addressed concerns how the plan dealt with "curvature balance", crowning, and using a particular type of packed gravel surface to deal with drainage.
The RIP was approved by a 7-0 vote. Plaintiffs filed this action under G.L. c. 40A, § 17, seeking to reverse this decision and prevent the O'Briens from commencing construction on the road. Specifically, they challenge the RIP approval on three grounds: (1) they were not given proper notice of the hearing; (2) the Board did not make findings to support its decision; and (3) the Board gave the O'Briens permission to improve a roadway over which they had no right of access.
Discussion
1. Standard of Review/Jurisdiction
This complaint was brought under G.L. c. 40A, § 17. However, as the parties acknowledged at the hearing, this court does not have jurisdiction over a case such as this under that chapter, as chapter 40A applies to appeals from zoning boards of appeal. See G.L. c. 40A, § 17. Thus, by agreement of the parties, this court will accept the complaint as an action in the nature of certiorari pursuant to G.L. c. 249, § 4. See Stefanick v. Planning Bd. of Uxbridge, 39 Mass. App. Ct. 424, rev. den., 422 Mass. 418 (proper avenue of appeal by an abutter of approval of plan by Planning Board is under G.L. c. 249, § 4) (1995). See also City of Gloucester, Rules and Regulations Governing Subdivision of Land in Gloucester, MA. § 2.2.7.F (right of appeal of RIP decisions pursuant to G.L. c. 249, § 4). Although the parties treated the current motion as a motion for "summary judgment," such a motion is not available in a proceeding under G.L. c. 249, § 4. Bielawski v. Personnel Adm'r of Div. of Personnel Admin., 422 Mass. 459, 464 (1996). The Court thus will treat the current motion as a motion for judgment on the pleadings under Mass. R. Civ. P. 12(c). See Superior Court Standing Order 1-96.
The Court notes that review of the Board's RIP approval must proceed, if at all, under G.L. c. 249, § 4. The subdivision regulation, § 2.2.7.F, states that appeal of the Board's RIP decision may be had under either G.L. c. 41, § 81BB or G.L. c. 249, § 4. However, a city cannot confer jurisdiction on the Superior Court over subject matters not authorized by the legislature. G.L. c. 41, § 81BB does not confer jurisdiction over roadway improvement plan decisions like the one that occurred in this case. Therefore, the part of the regulation that purports to give a right of appeal of a RIP approval or denial to an abutter in the Superior Court pursuant to G.L. c. 41, § 81BB is not effective.
Under Chapter 249, section 4, this Court's review of the proceedings below is "limited to correcting 'substantial errors of law apparent on the record adversely affecting material rights.'" FIC Homes of Blackstone, Inc. v. Conserv. Comm's. of Blackstone, 41 Mass. App. Ct. 681, 684 (1996) (citations omitted). "The standard of review varies according to the nature of the action for which review is sought." Id. (citation omitted). The Board's decision will be overturned if it is arbitrary and capricious — i.e. "[t]here is no ground which 'reasonable persons might deem proper to support it,'" id. (citation omitted), is not supported by substantial evidence, Bielawski, 422 Mass. at 464, is erroneous as a matter of law, Shriner's Hospital for Crippled Children v. Boston Redev. Auth., 4 Mass. App. Ct. 551, (1976), or was procedurally deficient and materially adversely affected the rights of the complaining party.
Under the incorrect assumption that this motion fell under chapter 40A, the parties did not comply with Superior Court Standing Order 1-96. Nonetheless, the minutes of the meeting before the board and other certified documents are part of record before the court.
2. The 1990 ANR Endorsement
Under G.L. c. 41, § 81P "if a board finds that a plan does not require approval under a subdivision control law, 'it shall forthwith . . . endorse thereon or cause to be endorsed thereon . . . the words 'approval under the subdivision control law not required'. . . . Such endorsement shall not be withheld unless such plan shows a subdivision.' A 'subdivision' is defined as 'the division of a tract of land into two or more lots. . . .' G.L. c. 41, §§ 81L, as appearing in St. 1963, c. 580. However, a division of a tract of land is excluded from the definition of a 'subdivision' under G.L. c. 41, §§ 81L, if 'every lot within the tract so divided has frontage on . . . (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law. . . .' G.L. c. 41, §§ 81L . . ." Jaxtimer v. Planning Bd. of Nantucket, 38 Mass. App. Ct. 23, 24 (1995). In addition, in order for the division to receive the ANR endorsement, the way must also provide real adequate access to the proposed lot. Id. at 24-25 ("the exclusion of the lots from the subdivision control law also requires that there be an actual street with 'adequate access for fire trucks and emergency vehicles'"); Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144, 151-53 (1983) ("a lot should not get ANR endorsement "unless [the way] in fact exist[s] on the ground in a form which satisfies the goals of Section 81M" . . . a board acts "properly [in] deny[ing] an 81P endorsement because of inadequate access, despite technical compliance with frontage requirements"). See also Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807-08 (1978) ("where the lots shown on a plan bordered on a road 'not in any practical sense . . . in existence as a way,' and thus incapable of affording suitable access to the lots," the ANR endorsement must be refused), citing and quoting Retting v. Planning Bd. of Rowley, 332 Mass. 476, 481 (1955), Ball v. Planning Board, 58 Mass. App. Ct. 513, 517 (2003), citing and quoting Gates v. Planning Board, 48 Mass. App. Ct. 394, 399 (2000) (there are two categories of cases in which ANR is sought — public ways that are manageable but could be better [as to which ANR should be granted] and those where access is illusory [as to which ANR should be denied]).
This case is somewhat anomalous. The Board endorsed the 1990 plan despite the fact that adequate access apparently did not exist. The Board did not, however, totally abdicate its responsibility under G.L. c. 41, § 81M to ensure that subdivision and development does not occur in the absence of adequate access. See Perry, 15 Mass. App. Ct. at 150 ("planning boards are to administer the law 'with due regard for the provision of adequate access to all of the lots in a subdivision by ways that will be safe and convenient for travel; for lessening congestion in such ways and in the adjacent public ways; for reducing danger to life and limb in the operation of motor vehicles; for securing safety in the case of fire, flood, panic and other emergencies; . . . [and] for securing adequate provision for . . . fire, police, and other similar municipal equipment'") (citations omitted). Instead of denying the ANR endorsement outright, the Board conditioned its approval upon further compliance with the requirement that the way be improved to provide actual and adequate access. This court will not simply consider the form in which the board chose to act i.e., an ANR endorsement, but rather the substantive effect of the board's decision which was to require a demonstration of adequate access before final approval of the board would be granted. Therefore, because there was no final ANR endorsement on the 1990 plan, the Board's action was not unlawful. 3. The 2002 Roadway Improvement Plan
The Board appears to have 'borrowed' this procedure from a regulation governing road improvements in subdivisions under the subdivision control law. That regulation provides that "[w]here the street system within a subdivision does not connect with or have, in the opinion of the Planning Board, adequate access from a City, County or State (public) way, the Planning Board may require, as a condition of approval of a plan, that the developer provide adequate access . . . by making physical improvements to any existing way deemed inadequate by the Board." Rules and Regulations Governing Subdivision of Land in Gloucester, MA. § 2.5.1 (entitled "Improvements to Way of Access"). There does not appear to be an analogous regulation or statute authorizing a conditional approval in the 81P context, such as that attempted by the Board in this case. In any case, no appeal was taken from the Board's action and there is no basis for the plaintiffs' claim that it is subject to that it is subject to challenge at this time.
The 2002 Roadway Improvement Plan was submitted pursuant to Rules and Regulations Governing Subdivision of Land in Gloucester, MA. § 2.2.7, entitled "Providing Adequate Access to Existing Lots." Because the 1990 ANR endorsement was not a final approval, the 2002 RIP hearing must be considered as a preliminary step towards finalizing the ANR endorsement — i.e., if and when the O'Briens complete construction of the roadway, as approved by the Board in the RIP, they must then seek final ANR endorsement of their plan. Thus, this Court's review of the RIP hearing is narrow, focusing not on issues of adequate access or ANR endorsement, but rather, solely on whether the Board erred in approving the RIP as per the city regulations.
The Court recognizes that, by its own terms, this section would not ordinarily apply to Lot 2, as it only applies to lots which "existed prior to the date on which subdivision control was adopted by the City on December 8, 1960 . . ." Rules and Regulations Governing Subdivision of Land in Gloucester, MA. § 2.2.7. However, it appears from both the condition on the 1990 approval and the minutes of the 2002 RIP hearing that the Board intended that the O'Briens comply with this regulation. First, the 1990 condition required that "adequate access [be] provided by an acceptable street." § 2.2.7, is entitled "providing adequate access to existing lots." It provides the definition of an acceptable street as "any public or private way which, by lawful procedure, has been recognized by the City and which has, as determined by the Planning Board, sufficient width, suitable grades and site distances, adequate clearances and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land deriving frontage therefrom, and for the installation of municipal services to serve such land and the buildings erected or to be erected on such land." Second, at the RIP hearing in 2002, although there appears to have been some confusion, the minutes reflect that one Board member stated "in 1990 the ANR was granted with the condition that the applicant comply with the Subdivision Rules and Regulations, Section 2.2.7." In any event, the plaintiffs have not raised this issue and the Court will not consider it.
The entire record from the hearing is not before the Court. Nevertheless, the plaintiffs do not challenge the approval of the RIP insofar as it might fail to comply with technical regulations governing roadways. The plaintiffs' challenge, as noted above, is premised on (i) lack of notice, (ii) failure to state reasoning for approval or to consider drainage issues, and (iii) improper issuance of a right to improve a roadway over which the O'Briens have no right of access. The record, as to those issues, is complete.
(i) Notice — Count I
It is undisputed that the Board complied with all the requisite notice requirements by publishing notice of the hearing in a paper of local circulation. In any event, the plaintiffs cannot claim to have been prejudiced, as they were specifically given notice of the meeting by the O'Briens' counsel, were themselves represented by counsel at the meeting, and participated in the discussion at the meeting. Therefore, the defendants are entitled to judgment on Count I. The motion for judgment on the pleadings as to Count I will be ALLOWED. (ii) Failure to Justify RIP Approval — Count II
The RIP regulations do not require that the Board state the reasons for approval of an RIP. Thus, the challenge to the RIP approval premised on the Board's failure to justify its decision is without merit. From the minutes of the hearing, it is apparent that the Board had considered the submitted plan and determined that the RIP was satisfactory. The Board simply was not required to fully explain, in a written or oral opinion, its reasons for voting to approve the RIP.
Moreover, the drainage issues concerning the proposed roadway were raised at the hearing. Although the extent to which those problems were considered by the Board is not clear, the Board was certainly cognizant of the concerns raised by the plaintiffs. The plaintiffs did not submit at the hearing, nor have they submitted to the Court, anything more than the mere unsupported allegation that improving the roadway per the RIP will result in drainage problems. There is no evidence to suggest that roadway improvements, as proposed in the plan, are technically deficient, not up to code, or practically insufficient and likely to cause damage to the plaintiffs' properties. As such, the defendants are entitled to judgment on Count II. The motion for judgment on the pleadings as to Count II will be ALLOWED. (iii) Right of Access Over the Right of Way — Count III
The plaintiffs also raise issues concerning drainage problems resulting from construction that will likely occur on Lot 2. The defendants are correct to assert that those issues are premature, as neither the ANR nor the RIP determinations allow construction on Lot 2. The city zoning ordinances cover drainage issues, and those ordinances must be complied with in order to obtain the requisite building permits. Indeed, the 1990 ANR endorsement states that "Endorsement by the Planning Board is not a determination as to conformance with zoning regulations." The plaintiff's drainage concerns were not the subject of the Board's decisions, and should be considered and resolved by the appropriate permitting agency if and when the permitting process begins. If the plaintiffs' concerns are not adequately addressed at that point, they may have rights of appeal at that time.
The evidence in the record demonstrates that the O'Briens have a deeded easement to use the private way "for all the usual purposes for which public ways may be used in the City of Gloucester." Thus, the defendant's motion for judgment on the pleadings with respect to Count III will be ALLOWED. 4. Additional Considerations
The sine qua non of an ANR determination is adequate access. As to date, there has not yet been a definitive determination in this regard. One might attempt to characterize the RIP approval as an implicit finding of adequate access, because city regulations that the street, as improved, provide adequate access before the RIP is approved. However, in the context of ANR determinations under G.L. c. 41, § 81P, theoretical access is insufficient. Ball, 58 Mass. App. Ct. at 517-18; Perry, 15 Mass. App. Ct. at 151. Thus, even the approval of the RIP was and remains an insufficient basis for the Board to issue a final ANR endorsement on the plan.
This is not to say that the O'Briens should be left guessing whether they are entitled to a final ANR endorsement on their plan. The Board has already endorsed the way as complying with § 81(b). Its current approval of the RIP is a clear indication that if the O'Briens complete construction of the roadway in compliance with the approved plan and city regulations, then they will be entitled to an ANR endorsement upon re-submission of the plan at that time. See Titus, 1995 WL 1146863 (once ANR applicant obtains approval of a satisfactory RIP and completes improvements to the roadway, applicant will be entitled to an ANR).
ORDER
For the reasons stated above, it is hereby ORDERED as follows:
1. The Complaint is treated by agreement of the parties as one in the nature of certiorari seeking judicial review under G.L. c. 249, § 4.
2. The Motions for Summary Judgment are treated as Motions for Judgment on the Pleadings pursuant to Mass. R. Civ. P. 12(c).
3. The defendants' motions for judgment on the pleadings on Counts I, II and III are ALLOWED.
4. The O'Briens must obtain a final determination of adequacy of access before their plan may be definitively endorsed Approval Not Required under G.L. c. 41, § 81P.
5. A final finding of adequacy of access and final ANR endorsement by the Board must comply with all applicable substantive and procedural regulations and laws.