Opinion
14-P-1656
08-20-2015
ONE BROCK'S COURT, LLC v. PLANNING BOARD OF NANTUCKET & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
One Brock's Court, LLC, the plaintiff, appeals from a judgment of the Land Court that entered after the denial of its motion for judgment on the pleadings. The plaintiff brought a G. L. c. 249, § 4, action in the nature of certiorari, seeking Land Court review of the approval not required (ANR) endorsement by the planning board of Nantucket (board) under the subdivision control law, G. L. c. 41, §§ 81K-81GG, on a plan by Edward S. Toole (plan) to divide his property into two lots -- each with frontage along Brock's Court, a public way in Nantucket.
The plaintiff asserts the plan was not entitled to ANR endorsement because it did not provide adequate access for the two proposed lots pursuant to Nantucket's subdivision rules and regulations (local rules), specifically local rules § 2.03. We affirm.
As does the Land Court, we examine whether the board's decision "was arbitrary and capricious or unsupported by substantial evidence." Rodgers v. Conservation Commn. of Barnstable, 67 Mass. App. Ct. 200, 204 (2006). The board was required to give an ANR endorsement if the plan did not propose a "subdivision" as defined by the subdivision control law. See G. L. c. 41, § 81P. A plan does not propose a subdivision when
"every lot within the tract so divided has frontage on (a) a public way . . . , or (b) a way shown on a plan theretofore approved and endorsed 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" (emphasis supplied).G. L. c. 41, § 81L, as amended through St. 1965, c. 61. The frontage on a nonsubdivision plan must be "of at least such distance as is then required by zoning or other ordinance or by-law." G. L. c. 41, § 81L, as appearing in St. 1956, c. 282.
The board may still deny an endorsement if, despite meeting those requirements, the proposed frontage does not provide "adequate access." McCarthy v. Planning Bd. of Edgartown, 381 Mass. 86, 87 (1980). More specifically, if the access is "illusory," an endorsement is not warranted. Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394, 399 (2000). Where, however, access "could be better but [is] manageable," ANR endorsement is required. Ibid. The board does not have "a roving commission to assess the quality of access, so long as the access [is] not an illusion." Id. at 397.
Here, there is no dispute that the plan proposes a property division into two lots -- each with frontage on a public way of the necessary distance so as to not constitute a subdivision under G. L. c. 41, § 81L. The plaintiff contends the access is illusory, nevertheless, because, in its view, § 2.03d of the local rules, entitled "Ways in Existence," does not permit endorsement.
According to the plaintiff, local rules § 2.03d -- which states, "Existing ways will normally be determined by the Board to provide adequate access to qualify a plan as not constituting a subdivision only when the layout, design and construction meet the standards of these Rules and Regulations" -- applies to every existing way, including Brock's Court, which is a public way. We disagree.
Local regulations are subject to ordinary rules of statutory construction. See Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 290 (1981). Here local rules § 2.03a3 largely mirrors G. L. c. 41, § 81L, in defining the three situations where a plan does not propose a subdivision:
"Necessary evidence to show that the plan does not require approval . . . shall include . . . documentation that every lot within the divided tract has frontage either on [(1)] a public way . . . or [(2)] a way shown on a plan theretofore approved and endorsed in accordance with the Subdivision Control Law; or [(3)] a way in existence on February 16, 1955, 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" (emphasis supplied).We interpret local rules § 2.03a3 harmoniously with § 81L. See American Lithuanian Naturalization Club, Athol, Mass., Inc. v. Board of Health of Athol, 446 Mass. 310, 321 (2006) ("A town may not promulgate a regulation that is inconsistent with State law"); Howe v. Tarvezian, 73 Mass. App. Ct. 10, 17 (2008) ("Courts should interpret as harmoniously as possible provisions related to the same subject matter and connected by cross-reference"). Were a "way in existence" to include public ways, as the plaintiff contends, the purposes of the subdivision control law would be defeated, as the board would still be required to review and approve all ANR requests for any plan proposing frontage on a public way for adequate access.
That interpretation is contrary to the long-standing view that "[i]n the ordinary case, lots having [sufficient] frontage [on a public way] are fully accessible." Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807 (1978). See Hutchinson v. Planning Bd. of Hingham, 23 Mass. App. Ct. 416, 421 n.5 (1987) (refusing to apply the "way in existence" language to public ways); Sturdy v. Planning Bd. of Hingham, 32 Mass. App. Ct. 72, 76 (1992) ("Deficiencies in a public way are insufficient ground for denying the endorsement"); Gates, 48 Mass. App. Ct. at 395 n.3 ("The statute . . . describes ways other than public ways which provide a path to exemption from subdivision control" [emphasis supplied]). For these reasons, and because "[i]t is a familiar canon of construction, that when similar words are used in different parts of a statute, the meaning is presumed to be the same throughout," the reference to any existing way in local rules § 2.03d cannot apply to public ways. Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 583 (2012), quoting from Booma v. Bigelow-Sanford Carpet Co., 330 Mass. 79, 82 (1953). Therefore, we conclude, as the Land Court judge aptly did, that the board properly granted ANR endorsement to Toole's application.
The request for appellate attorney's fees is denied.
Judgment affirmed.
By the Court (Green, Milkey & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 20, 2015.