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ANR Plans: Public Ways, Ways in Existence & Adequate Access

As most Massachusetts residents and land use attorneys know, new residential construction is often met with a host of challenges and opposition. This is certainly the situation in many of the more desirable locations where developable land is seemingly at a premium, including, no less, Nantucket, where even a small ANR (Approval Not Required) project recently faced abutter opposition.

First, the basic facts from One Brock's Court, LLC v. Rector, 2014 WL 3973284, 13 MISC 477901 (HMG) (Mass. Land Ct. Aug. 14, 2014):

· Plaintiff (an LLC) owned a residential dwelling off Brock's Court, a public way ("Plaintiff's Property").

· Defendant owned a developed parcel of land that abuts Plaintiff's Property, but which derived its access from another way.

· Defendant filed an application for endorsement of an ANR Plan (M.G.L. c. 41, § 81P) in order to divide his property into two lots. Lot 1 contains the existing house and access driveway, but which would be relocated to provide access from Brock's Court. Lot 2 (in its new configuration) abuts Plaintiff's Property and would also have access off of Brock's Court.

· Both Lot 1 and Lot 2 meet the minimum frontage requirements under the Nantucket Zoning Bylaw.

· Brock's Court is a dead-end street. It is a fifteen (15') foot wide right of way, paved to a width of approximately 10 feet.

· The Planning Board unanimously approved the ANR plan (w/o public hearing).

· Plaintiff sought review of the Planning Board's decision via an action in the nature of certiorari under M.G.L. c. 249, § 4.

· The Land Court affirmed the Planning Board's approval of the ANR plan.

Specifically, the issue before the court was whether the access provided by Brock's Way was "adequate for purposes of G.L. c. 41, § 81M. (Click here for the full statutory language.) Obviously, Plaintiff and Defendant each had a different take on whether the way was, in fact, adequate in order to qualify for an ANR endorsement. As the court succinctly put it,

Essentially, access falls into two categories-'could be better but manageable' (i.e. deficiencies in a public way) and 'illusory' (i.e. the public way fails to provide acceptable physical access according to the goals of § 81M). [citations omitted] The first warrants ANR endorsement; the second does not.

Id. (citations omitted). This is because the goal of § 81M is to provide "safe and efficient vehicular access for residents and emergency vehicles." Id.

Plaintiff argued that Brock's Way was inadequate because it was illusory due to a legal impediment-namely, the failure of Brock's Way to satisfy the Nantucket (local) Subdivision Rules and Regulations (which, in turn, rendered access inadequate under § 81M). The decision provides a detailed explanation of the two specific provisions (§§ 2.03a(3) and 2.03d) of the local subdivision rules and regulations at issue, but here is the nub of the statutory construction that the court was asked to consider.

[Under §2.03a(3), ANR applicants must provide n]ecessary evidence to show that the plan does not require approval, which shall include the precise legal ownership of the way(s) and proper positive documentation that every lot within the divided tract has frontage either on a public way or a way which the Town Clerk certifies is maintained and used as a public way or a way shown on a plan theretofore approved and endorsed in accordance with the Subdivision Control Law; or 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 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. All plans seeking Approval Not Required endorsement shall be accompanied by adequate evidence that there is practical interior access to the proposed house sites.

The reference to February 16, 1955 regarding "ways in existence" is the date on which the Subdivision Control Law went into effect in Nantucket.

Section 2.03d, captioned Ways in Existence, provides in relevant part, as follows:

Existing ways will normally be determined by the Board to provide adequate access to qualify a plan as not constituting a subdivision plan only when the layout, design, and construction meet the standards of these Rules and Regulations."

Plaintiff's argument: "Existing ways" in § 2.03d applies to all ways in existence-public and private-when the ANR endorsement was sought, and thus the layout, design, and construction standards (like the one requiring ways be laid out to forty feet and paved to twenty feet wide) are applicable to Brock's Court. (Incidentally, the Plaintiff relied heavily on the analysis found in McCarthy v. Planning Board of Edgartown, 381 Mass. 86, 87-88 (1980).)

Defendant's argument: "[I]n light of the preceding 'ways in existence' reference in 2.03a(3) and the fact that Section 2.03a(3) categorizes public ways and ways in existence separately, reads it to apply only to non-public "ways in existence" when the Subdivision Control Law took effect in Nantucket." Id.

Relying on the usual rules of statutory construction, the Land Court ultimately found the Defendant's argument more persuasive, and found that § 2.03d only applied to non-public ways in existence, and not public ways like Brock's Court. Not only did the court find that this makes sense in light of an integrated reading of the relevant provisions of the Nantucket Subdivision Rules and Regulations, but also because

[a] review of the relevant case law lends further support to the conclusion that a "public way" and a "way in existence" are wholly distinct entities for purposes of identifying exemption under the [Massachusetts] Subdivision Control Law.

Id. The court went on to review the actual access provided by Brock's Way and ultimately determined that it was adequate and not illusory. There were no extraordinary circumstances that prevented endorsement of the ANR Plan.

If nothing else, this case serves as an important reminder to practitioners to take statutory interpretation into consideration when faced with similar challenges in ANR/subdivision cases.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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