The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1190
MEADOW WOOD LLC
vs.
CITY OF BROCKTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a decision of the Plymouth
Superior Court denying its motion for summary judgment and
entering judgment for the plaintiff. The dispute arises from an
effort by the plaintiff, a property developer, to obtain
approval for a planned development located in the defendant
city. On March 3, 2020, the planning board of Brockton (board)
voted to approve a development plan submitted by the plaintiff
(2020 plan). The 2020 plan depicted a way running from West
Chestnut Street in Brockton to the city border with West
Bridgwater and three buildable lots abutting the way. The
board's approval was conditioned on, inter alia, a requirement
that the way instead terminate in a cul-de-sac, rather than at
the West Bridgewater border. 1 In response, the plaintiff
subsequently withdrew the 2020 plan and, on February 3, 2021,
submitted a second plan to the board, which the board considered
at a meeting held on February 23, 2021 (2021 plan). This new
plan featured essentially the same way, that is, without a cul-
de-sac, but now, in contrast to the 2020 plan, an e-mail from
the plaintiff to the board indicated that portions of land
adjacent to the way were either unbuildable due to terrain
conditions or otherwise not buildable lots. In light of the
change, the plaintiff now requested that the board provide an
"approval not required" (ANR) endorsement for the 2021 plan
pursuant to G. L. c. 41, § 81P considering the parcels of land
created by the proposed way were now designated on the plan as
unbuildable, and, therefore, did not constitute lots subject to
subdivision control. The board refused the ANR endorsement,
because, inter alia, the plan was unclear and appeared to
represent an effort to circumvent subdivision control. The
1 Several public commenters at a January 7, 2020, meeting
suggested that the proposed way would be a "road to nowhere" and
that the plaintiff was "not being forthright." Commenters
further expressed concern that the plaintiff intended to extend
the way and build a larger development outside the scope of the
2020 plan. A representative for the plaintiff confirmed that
development into West Bridgewater was under consideration.
While the planning board was not explicit as to its reasoning in
its letter notifying the plaintiff of the board's approval, it
appears likely that the requirement to terminate the way using a
cul-de-sac was intended to prevent expansion of the project into
West Bridgewater.
2
plaintiff appealed that decision to the Superior Court asserting
that the 2021 plan did not depict lots subject to subdivision
control and that the board was acting in bad faith as a result
of having had judgment entered against it in an earlier dispute
with the plaintiff involving the same property. 2 A judge of the
Superior Court reversed the board, finding that the 2021 plan
indeed did not depict buildable lots and that an ANR endorsement
was therefore required under c. 41, § 81P. This appeal
followed. After review, we reverse the judgment and affirm the
decision of the board denying the endorsement.
Discussion. "We review the motion judge's decision on
summary judgment de novo." Barry v. Planning Bd. of
Belchertown, 96 Mass. App. Ct. 314, 317 n. 6 (2019), quoting
Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018).
"[General Laws] c. 41 requires that any plan showing a
'subdivision' of property must be approved by the local planning
board." Barry, supra at 317, quoting G. L. c. 41, §§ 81L, 81O.
"'Subdivision' shall mean the division of a tract of land into
two or more lots[.]" G. L. c. 41, § 81L. "A 'lot' is defined
as 'an area of land in one ownership, with definite boundaries,
used, or available for use, as the site of one or more
2 The plaintiff did not press its argument pertaining to bad
faith in its opposition to the defendant's motion for summary
judgment and the motion judge did not address it in her
decision.
3
buildings.'" 3 Cricones v. Planning Bd., 39 Mass. App. Ct. 264,
266 (1995), quoting G. L. c. 41, § 81L.
"A principal purpose of the subdivision control law is to
ensure that all newly created lots have adequate access 'by ways
that will be safe and convenient for travel,' G. L. c. 41,
§ 81M, because residents' 'safety, convenience, and welfare
depend critically on that factor.'" Barry, 96 Mass. App. Ct. at
317, quoting Palitz v. Zoning Bd. of Appeals of Tisbury, 470
Mass. 795, 803 (2015). "A plan does not require planning board
approval, however, if it does not show a 'subdivision'; in that
event the plan is entitled to an endorsement 'approval under the
subdivision control law not required,' frequently referred to as
an 'ANR' endorsement." 4 Barry, supra at 317, citing G. L. c. 41,
§ 81P.
3 The division of land into lots does not constitute a
subdivision when lots have sufficient frontage on existing or
approved ways. See Ninety Six, LLC v. Wareham Fire District, 92
Mass. App. Ct. 750, 753 (2018). See also G. L. c. 41, § 81L.
The plaintiff did not raise that exemption before the board or
the motion judge, so we do not address it here.
4 General Laws c. 41, § 81P provides:
"Any person wishing to cause to be recorded a plan of land
situated in a city or town in which the subdivision control
law is in effect, who believes that his plan does not
require approval under the subdivision control law, may
submit his plan to the planning board of such city or town
in the manner prescribed in section eighty-one T, and, if
the board finds that the plan does not require such
approval, it shall forthwith, without a public hearing,
endorse thereon or cause to be endorsed thereon by a person
4
With that framework, we turn first to consider whether the
development plan depicted "the division of a tract of land into
two or more lots." G. L. c. 41, § 81L. It is undisputed that
the ways depicted in the 2020 and 2021 plans are virtually
identical, as the plaintiff conceded as much in its memorandum
in opposition to summary judgment before the motion judge. The
2020 plan depicted two lots on the east side of the way and a
third to the west. Given our review, along with the plaintiff's
concession that the two plans are "exactly the same," we are
left with the firm conviction that the 2021 plan depicts a
proposed way splitting the subject property into no fewer than
two lots. See G. L. c. 41, § 81L. As a result, the plan is
subject to approval by the board unless the plaintiff can
present an exception to the general rule found in G. L. c. 41,
§ 810.
Toward that end, the plaintiff argued before the board and
the motion judge that the 2021 plan did not depict subdivision
of land into lots because the portions of land created by the
way were either composed of unbuildable terrain or otherwise
labeled "not buildable." In doing so, the plaintiff relies on
authorized by it the words 'approval under the subdivision
control law not required' or words of similar import with
appropriate name or names signed thereto, and such
endorsement shall be conclusive on all persons. Such
endorsement shall not be withheld unless such plan shows a
subdivision."
5
the legal principle that a plan which "expressly disavow[s], on
the face of the plan, any claim of availability . . . for
building purposes . . . [does] not represent a division of the
land into two or more 'lots.'" Cricones, 39 Mass. App. Ct. at
266, quoting Bloom v. Planning Bd. of Brookline, 346 Mass. 278,
283-284 (1963). The board rejected the contention; board members
stated during the February 23 meeting that the plaintiff was
attempting to avoid subdivision control and that the 2021 plan
was ambiguous as to whether it contained buildable lots or not.
The motion judge was nonetheless persuaded by the plaintiff's
position.
We are unconvinced that this exception to the subdivision
control law is applicable here, for two reasons. First, the
2021 plan was simply too unclear to permit the board to
conclusively determine that it qualified for an ANR endorsement.
While the words "not a buildable lot" appear on the 2021 plan,
there is no indication as to which portions of the property that
notation applied. 5 Furthermore, although the plaintiff suggested
in email correspondence with the defendants that some portion of
the property was unavailable for construction due to unbuildable
5 We note that the three lots contained in the 2020 plan were
clearly demarcated as such. Similar markings do not appear on
the 2021 plan.
6
terrain, such terrain does not appear to be clearly identified
on the plan itself.
Second, by including buildable lots on both sides of the
proposed way in the 2020 plan, the plaintiff essentially
asserted that at least some portion of the land on each side of
the proposed way included buildable terrain. That claim,
however, was contradicted by the 2021 email's portrayal of the
relevant terrain as unbuildable due to wetlands. This
contradiction, together with the 2021 plan's lack of clarity,
was sufficient to support the board's refusal to provide the ANR
endorsement on the grounds that the 2021 plan in fact did depict
a subdivision on which land was "available for use[] as the site
of one or more buildings," G. L. c. 41, § 81L. Without more, we
cannot say that the board erred in denying an ANR endorsement
under G. L. c. 41, § 81P. See also G. L. c. 41, § 81O.
The judgment is reversed and a new judgment shall enter
affirming the decision of the board.
So ordered.
By the Court (Wolohojian,
Desmond & Sacks, JJ. 6),
Assistant Clerk
Entered: March 29, 2024.
6 The panelists are listed in order of seniority.
7