Barry v. Planning Board of Belchertown

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18-P-723 Appeals Court
RICHARD G. BARRY & another1 vs. PLANNING BOARD OF BELCHERTOWN
& another.2
No. 18-P-723.
Hampshire. March 1, 2019. - October 29, 2019.
Present: Maldonado, McDonough, & Englander, JJ.
Subdivision Control, Access ways, Approval not required. Way,
Public: subdivision control, Public: what constitutes.
Collateral Estoppel. Judgment, Preclusive effect.
Civil action commenced in the Superior Court Department on
March 13, 2015.
The case was heard by John S. Ferrara, J., on motions for
summary judgment.
Katherine D. Laughman for the defendants.
Ryan K. O'Hara for the plaintiffs.
Michael Pill, for W.D. Cowls, Inc., amicus curiae,
submitted a brief.
1 Marcel A. Nunes.
2 Town of Belchertown.
2
ENGLANDER, J. This case requires us to examine the law
regarding so-called "approval not required" (ANR) plans for the
division of real estate pursuant to the subdivision control law,
G. L. c. 41, §§ 81L and 81P. In particular, we consider whether
a 1987 judgment involving the same Belchertown (town) way at
issue in this case is entitled to collateral estoppel3 effect
offensively, against the town, in connection with a new ANR plan
filed for different property by different applicants, almost
thirty years later. The motion judge concluded that the 1987
judgment had established that the way -- Munsell Street -- was a
"public way," and that, accordingly, the plaintiffs were
entitled to ANR approval of their proposed plan, which sought
approval for two lots with frontage on Munsell Street. We
vacate the judgment, because neither the 1987 judgment nor the
evidence of record establish that the portion of Munsell Street
at issue is a public way, and because the 1987 judgment -- which
required the ANR endorsement of a plan abutting a different
portion of Munsell Street -- is not entitled to preclusive
effect in this case.
Background. We recite the undisputed facts from the
parties' summary judgment materials and the exhibits attached
3 We use the term "collateral estoppel" interchangeably with
the term "issue preclusion," which is used in the Restatement
(Second) of Judgments §§ 27-29 (1982). We mean no distinction
between the two terms.
3
thereto. Munsell Street has existed on the ground since at
least the 1800s, although the condition of the way has varied
through the years, and Munsell Street's condition currently
varies greatly along its length. The street runs westerly, from
its beginning at an intersection with Gold Street. In 1990, the
town formally accepted the first 2,730 feet of Munsell Street as
a public way. Munsell Street is improved up to a point just
short of the end of that acceptance. Beyond that point the road
becomes a gravel road, which "dwindles" as one moves further
west. The motion judge stated that "[t]here is no question
that, at some point, Munsell Street becomes impassable to most
vehicles, after which it is no more than a remote trail that may
meet up with an old path in neighboring Pelham."
This case involves the portion of Munsell Street beyond the
termination point of the formal acceptance. On January 23,
2015, Richard G. Barry4 (applicant) filed with the planning board
of Belchertown (board) an application seeking an ANR endorsement
pursuant to G. L. c. 41, § 81P. The accompanying plan showed
two lots, lots A and B, each with 140 feet of frontage on
Munsell Street.5 Lot A fronts on the accepted portion of Munsell
4 The application reflects that Barry is the applicant, and
that the owner of the locus is Marcel A. Nunes.
5 The application refers to the locus as fronting Munsell
Road but the accompanying plan, the judge, and most other
references refer to the way as Munsell Street.
4
Street. Lot B does not; its eastern boundary coincides with the
end of the accepted way, so that the entirety of lot B fronts on
a portion of Munsell Street that has not been formally accepted.
The board denied the application on the ground that the
portion of Munsell Street fronting lot B did not meet the
criteria for frontage contained in G. L. c. 41, § 81L. The
board further concluded that lot B included land, specifically
the portion of Munsell Street that fronts lot B, that had been
required to be dedicated to open space as a condition of
approval of the neighboring Oasis Drive subdivision. The
board's decision also incorporated the opinion of town counsel
noting that the portion of Munsell Street fronting lot B "is
simply an old dirt/gravel path that is rutted and only passable
by four-wheel drive vehicles," and "[t]he Planning Board would
therefore be justified in determining that the way does not
contain adequate width grade or construction to provide access
for new residential development."
On cross motions for summary judgment, a Superior Court
judge granted summary judgment to the applicant. The judge
reasoned that the 1987 judgment of the Superior Court
established that Munsell Street is a public way and, applying
principles of issue preclusion, ordered the board to endorse the
plan as "Approval under Subdivision Control Law not required."
The judge also concluded that because Munsell Street was a
5
public way, it could not have been transformed into "open space"
by a condition imposed during subdivision approval. The judge
accordingly ordered the entry of a declaratory judgment that the
full length of Munsell Street is a public way. The town
appeals.
Discussion. The focus of the applicant's summary judgment
motion was not that Munsell Street in front of lot B actually
meets the § 81L criteria for adequate frontage, but rather that
the board is collaterally estopped from denying that Munsell
Street meets the criteria of § 81L. The principal question
before us, therefore, is whether the 1987 judgment precludes the
town from refusing to grant ANR approval for lots fronting on
the applicable portion of Munsell Street. Before diving into
the details of the 1987 litigation, and the other relevant
history of property development along Munsell Street, it will be
helpful to have the legal framework in mind.6
A. Legal principles applicable to ANR endorsements. A
principal purpose of the subdivision control law is to ensure
that all newly created lots have adequate access "by ways that
6 We review the motion judge's decision on summary judgment
de novo. Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018).
Where, as here, both parties have moved for summary judgment, we
view the evidence in the light most favorable to the party
against whom judgment has entered, to determine whether all
material facts have been established and the prevailing party is
entitled to judgment as a matter of law. Id.
6
will be safe and convenient for travel," G. L. c. 41, § 81M,
because residents' "safety, convenience, and welfare depend
critically on that factor." Palitz v. Zoning Bd. of Appeals of
Tisbury, 470 Mass. 795, 803 (2015), quoting Gifford v. Planning
Bd. of Nantucket, 376 Mass. 801, 807 (1978). To that end, c. 41
requires that any plan showing a "subdivision" of property must
be approved by the local planning board. G. L. c. 41, §§ 81L,
81O. 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. G. L. c. 41, § 81P. See Ninety Six, LLC v.
Wareham Fire Dist., 92 Mass. App. Ct. 750, 753 (2018). See also
Palitz, supra at 796.
The statutory term "subdivision" is defined in § 81L in the
negative -- by setting forth what is not a subdivision. Under
§ 81L, a plan does not show a "subdivision" if after division,
every proposed lot (1) has the required frontage (2) on a way
that meets any one of three criteria, each of which is relevant
to our analysis herein: (a) the way is "a public way" or "a way
which the [town clerk] certifies is maintained and used as a
public way" (clause a); or (b) the way is "shown on a plan
theretofore approved and endorsed in accordance with the
subdivision control law" (clause b); or (c) the way was "in
7
existence when the subdivision control law became effective
. . . having, in the opinion of the planning board, sufficient
width, suitable grades and adequate construction to provide for
the needs of vehicular traffic . . . and for the installation of
municipal services to serve such land and the buildings . . .
thereon" (clause c). G. L. c. 41, § 81L. We have said before
that "[w]here our statute relieves certain divisions of land of
regulation and approval by a planning board ('approval . . . not
required'), it is because the vital access is reasonably
guaranteed in another manner." Palitz, 470 Mass. at 803,
quoting Gifford, 376 Mass. at 807.
As indicated, the decision at issue was based upon the
judge's conclusion that Munsell Street was previously
adjudicated to be a public way, and thus satisfied clause a of
§ 81L. There are specific legal criteria for establishing a
"public way," however, as not every way open to the public is a
"public way." W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct.
18, 19 (1979) ("[T]here can be private ways, which are defined
ways for travel, not laid out by public authority or dedicated
to public use, that are wholly the subject of private ownership,
which are open to public use . . . " [quotations and citation
omitted]). Under our cases there are three means by which a way
may qualify as a public way: "(1) a laying out by public
authority in the manner prescribed by statute . . . ; (2)
8
prescription; and (3) prior to 1846, a dedication by the owner
to public use . . . coupled with . . . acceptance by the
public." Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct.
715, 716 (2001), quoting Fenn v. Middleborough, 7 Mass. App. Ct.
80, 83-84 (1979). "If a road has never been dedicated and
accepted, laid out by public authority, or established by
prescription, such a road is private." W.D. Cowls, Inc., supra.
B. The Pharmer litigation and development on Munsell
Street. It is not disputed that the portion of Munsell Street
beginning at Gold Road and ending at the westerly end of lot A
is a public way, lawfully accepted by the town in 1990. The
portion beyond lot A (including the frontage for lot B),
however, was not formally accepted in 1990, and stands on
different footing. The applicants contended below that the
board is bound by factual and legal issues decided in Pharmer
vs. Belchertown, Superior Ct., No. 82-098 (July 21, 1987), and
is estopped from denying that Munsell Street satisfies the
requirements of § 81L. The applicant also points to a 1975 Land
Court confirmation proceeding (without registration) wherein the
confirmed plan identified Munsell Street as a public way. For
its part, the town contends that issue preclusion is
inappropriate, at least in part based upon changed circumstances
arising from the 2007 Oasis Drive subdivision approval --
because the Oasis Drive approval was conditioned upon the
9
portion of Munsell Street west of the accepted way (including
the portion fronting lot B) being incorporated into that
subdivision's open space. We briefly summarize the 1987 Pharmer
litigation, the 1975 Land Court proceeding, and the Oasis Drive
subdivision history.
1. The 1987 Pharmer litigation. In 1982, William Pharmer,
III, sought ANR approval for property he owned on the south
side of Munsell Street, well west of the portion that in 1990
was accepted by the town. At that time Pharmer also owned
the locus at issue in the instant litigation, as well as
other property in the area. The board declined to grant ANR
approval, on the ground that Munsell Street did not meet the
requirements of G. L. c. 41, § 81L. Pharmer's appeal to the
Superior Court was referred to a special master, who held
hearings and issued findings of fact. The special master's
findings noted that the board previously had approved several
ANR plans for property fronting on Munsell Street. He also
noted that Munsell Street was identified as "public" on a
plan confirmed in the Land Court in 1975 and recorded in the
Hampshire County Registry of Deeds. Based upon these prior
plans, the special master concluded that "Munsell Street is a
way shown on plans heretofore approved and endorsed by the
planning board in accordance with the town's subdivision
control law." In other words, the special master concluded
10
that Munsell Street qualified under clause b of the
definition of "subdivision" set forth in c. 41, § 81L.
Although the special master made some findings that related
to whether Munsell Street was a public way, the decision did
not conclude that Munsell Street was a public way.
The special master recommended that the court order the
ANR endorsement. A judge of the Superior Court confirmed the
special master's decision. The Town initiated but did not
complete an appeal from that judgment.7
2. The 1975 registered plan. As noted, the special
master also found that in 1975, the then owner of the
property at issue in Pharmer had filed a petition in the Land
Court for confirmation of the title and boundaries of his
land. The plan accompanying the 1975 petition identified
Munsell Street as a public way. The title and boundaries
were confirmed in the Land Court and the plan was recorded on
February 22, 1980. The parties agree that the town had
notice of that proceeding but did not participate in it.
3. Oasis Drive subdivision. In 2007, the board
approved a subdivision plan for Oasis Drive, which plan showed
seventeen lots on a cul-de-sac to be created off of the south
side of the portion of Munsell Street that had been accepted
7 Although the plan received an ANR endorsement, the
subdivision was not developed.
11
by the town in 1990. Much of the abutting property was then
owned or controlled by the Oasis Drive applicant, Peter S.
Galuszka. As a condition for approval, the board required
that the Oasis Drive applicant revise the boundaries on the
plan to include within the subdivision's dedicated open space
"the entire discontinued right-of-way of Munsell Street,"
while "granting rights-of-way to W.D. Cowls, Inc. and other
property owners to the [w]est of the end of Munsell Street."8
The area designated as "open space" includes the portion of
Munsell Street that fronts on lot B of the plan at issue.
C. Applicability of collateral estoppel. Turning to the
facts at bar, our review of the Pharmer findings reveals that
the special master did not conclude that Munsell Street is a
public way. Rather, the special master concluded that Munsell
Street "is a way shown on plans heretofore approved and endorsed
by the planning board," thereby satisfying clause b of § 81L,
not clause a. Moreover, the record does not reflect that
Munsell Street west of the portion accepted in 1990 actually
qualifies as a public way; there was no evidence that the
western portion (1) was ever laid out by a public authority in a
8 Although the planning board's condition used the term
"discontinued" to describe this portion of Munsell Street, there
is no evidence of any formal discontinuance of a public way by
the town. As noted infra, there is no evidence of acceptance of
this portion as a public way, either.
12
manner prescribed by statute, or (2) prior to 1846, was
dedicated by its owner to public use where that dedication was
accepted by the public.9 See Moncy, 50 Mass. App. Ct. at 716.
The applicant makes no argument to the contrary and, in fact,
conceded at oral argument that the judge's rationale for
concluding that Munsell Street is a public way was faulty.
While the applicant failed to show that Munsell Street is a
public way, the question remains whether the finding in Pharmer
that Munsell Street is a way shown on an approved subdivision
plan under § 81L clause b is entitled to collateral estoppel
effect in this case. At the outset, we note that the conclusion
in Pharmer was incorrect: Munsell Street did not qualify under
clause b as a way "theretofore approved . . . [under] the
subdivision control law." G. L. c. 41, § 81L. While Munsell
Street had supplied the frontage for previously approved ANR
plans, an ANR endorsement "is not regarded as an 'approval' as
that term is used in the Subdivision Control Law." Cassani v.
Planning Bd. of Hull, 1 Mass. App. Ct. 451, 454 (1973). This is
because by definition an ANR plan is not an approved subdivision
plan; to the contrary, planning board "approval" is "not
required" for such plans. Rather, to qualify as an "approved"
9 On appeal the applicant argues, for the first time, that
the special master's findings compel the conclusion that Munsell
Street has become a public way by prescription. As we explain
infra, the record does not justify such a conclusion.
13
way under § 81L clause b the way must have been actually
approved by the planning board, after review of the plan under
the subdivision control law. Here there is no contention that
the width, grades, and construction of the portion of Munsell
Street at issue had ever been actually reviewed and approved by
the board.
The fact that the judge's conclusion was wrong in 1987,
however, does not mean that it cannot give rise to collateral
estoppel. One of the foundations of collateral estoppel is the
desire for finality, to prevent what otherwise could be unfair
and costly relitigation of issues already decided. Accordingly,
issue preclusion generally applies even to facts or rights that
may have been determined in error. Fidler v. E.M. Parker Co.,
394 Mass. 534, 543-544 (1985).10 We nevertheless conclude that
in the circumstances here, issue preclusion does not apply.
Under the common formulation of collateral estoppel, a
party is precluded from relitigating an issue adjudicated in a
prior proceeding where "(1) there was a final judgment on the
merits in the prior adjudication; (2) the party against whom
preclusion is asserted was a party (or in privity with a party)
to the prior adjudication; and (3) the issue in the prior
10A contrary conclusion -- allowing a party to contest
collateral estoppel by arguing that the earlier judgment was in
error -- would be fundamentally at odds with the doctrine.
14
adjudication was identical to the issue in the current
adjudication." Tuper v. North Adams Ambulance Serv., Inc., 428
Mass. 132, 134 (1998). "Additionally, the issue decided in the
prior adjudication must have been essential to the earlier
judgment." Id. at 134-135.
Here the plaintiffs seek to employ collateral estoppel
offensively, to preclude the town from asserting a defense even
though the plaintiffs were not parties to the 1987 litigation.
"'[T]he offensive use of collateral estoppel is a generally
accepted practice in American courts,' . . . and occurs when a
plaintiff seeks to prevent a defendant from litigating issues
which the defendant has previously litigated unsuccessfully in
an action against another party." Pierce v. Morrison Mahoney
LLP, 452 Mass. 718, 730 (2008), quoting Bar Counsel v. Board of
Bar Overseers, 420 Mass. 6, 9 (1995). While offensive
collateral estoppel is a "generally accepted practice," the
court in Pierce stated that courts should perform a careful
evaluation of the circumstances of the prior litigation before
invoking the doctrine, to ensure that it is being fairly applied
in the circumstances. Pierce, supra. Courts accordingly have
"wide discretion" in determining whether the application of
offensive collateral estoppel "would be fair to the defendant."
Id. at 731, quoting Bar Counsel, supra at 11. See also
15
Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 61-
62 (2014).
The town should not be precluded here. Although there was
a final judgment against the town in 1987, the issue in this
case is not identical to the issue that was resolved against the
town in 1987, because the material facts have changed since that
decision. In 1987, the court determined in the Pharmer
litigation (albeit incorrectly) that Munsell Street west of the
locus constituted a way shown on an approved subdivision plan,
thereby satisfying § 81L clause b. But three years later, in
1990, the town accepted only a portion of Munsell Street, not
including the frontage on lot B, as a public way. That same
year the planning board approved a new subdivision plan
involving Munsell Street -- the Oasis Drive subdivision, which
incorporated the portion of Munsell Street fronting lot B. The
1990 approved subdivision plan explicitly changed the land use
of the portion of Munsell Street fronting lot B; it was
designated as "open space."11
11We recognize that the open space designation was subject
to the rights of abutters to the west to access their properties
via Munsell Street. Nevertheless, the 1990 open space
designation is a new fact -- a condition on an approved
subdivision plan -- that would be material to any subsequent ANR
application seeking to employ that portion of Munsell Street as
frontage.
16
It is well established that a previously adjudicated issue
is not "identical" for purposes of collateral estoppel, where
the facts material to the subsequent litigation have changed
since the prior adjudication. See Restatement (Second) of
Judgments § 27 comment c (1982) (showing of "changed
circumstances" can prevent application of collateral estoppel).
That is the case here. Even accepting that the 1987
determination as to clause b's applicability to Munsell Street
could be entitled to preclusive effect in this litigation, the
"approved" subdivision plans for Munsell Street that existed as
of the time of the applicant's present application are
materially different than those that existed (if any) in 1987.
See G. L. c. 41, § 81L. The factual differences render
collateral estoppel inappropriate.12
The decision in Goldman v. Planning Bd. of Burlington, 347
Mass. 320, 324 (1964), is instructive. In that case, the
applicant argued that because the board had previously granted
an ANR endorsement for a property on a particular way, a later
filed plan showing the same lots on the same way must be granted
an ANR endorsement. Id. The way was not a public way. The
Supreme Judicial Court held that "[w]hatever the plaintiff's
12Because Munsell Street was never actually reviewed and
approved by the board, the applicant's contention that the town
failed to follow the procedures to modify an approved plan under
G. L. c. 41, § 81W, is unavailing.
17
rights under [the first plan], they do not include the right to
require that the new plan be indorsed 'approval . . . not
required.'" Id. The court explained that endorsement of the
earlier plan was not an "approval" of that plan as that term is
used in clause b. Id. And the court went on to conclude that
if the prior ANR determination had been made under § 81L clause
c, it was not entitled to preclusive effect: "Nor can we agree
that any determination in 1960 that the way was adequate is
'conclusive' upon the board in any subsequent application for an
indorsement of another plan showing the same way. The 1960
decision was as to the particular plan." Id. at 324-325.
Goldman establishes, at least, that a planning board ANR
approval based upon clause c -- that a way has "sufficient
width, suitable grades and adequate construction" -- does not
bind the town as to a subsequent ANR application involving the
same way. Implicit in Goldman's conclusion is the recognition
that the condition of the way can change over time or across its
length, and thus each effort to rely on clause c for an ANR
approval must be decided on the then-existing facts. So
understood, Goldman embodies the collateral estoppel principle
discussed above; collateral estoppel does not apply where the
facts material to the litigation have changed.
Goldman thus supports the conclusion that collateral
estoppel does not apply here. Although this case involves
18
clause b of § 81L rather than clause c, the material facts as to
clause b are different now than in 1987.13
Finally, we find support for our conclusion in the
principle that courts have discretion to ensure that offensive
collateral estoppel is applied fairly, and in relevant
provisions of the Restatement (Second) of Judgments, supra at
§§ 28 and 29. Here, the applicant seeks to preclude a
government board from litigating about the adequacy of a way,
based upon an incorrect finding in a thirty year old judgment
involving litigants other than themselves. Not only would such
a result be unfair, but it would also undermine the public
interest in ensuring that new lots have access to ways that are
safe and convenient for travel. There are recognized principles
that speak caution in applying offensive collateral estoppel in
such circumstances. See Restatement (Second) of Judgments,
supra at § 28(5). See also United States v. Mendoza, 464 U.S.
154, 159-161 (1984) (noting significant differences between
13 We recognize that Goldman could be read as a broader
rejection of collateral estoppel in the ANR context, but we do
not so read it. Collateral estoppel doctrine has evolved since
Goldman was decided. Collateral estoppel may apply to some
findings made in ANR litigation -- for example, a fully and
fairly litigated determination that a way is a public way --
provided the applicable collateral estoppel requirements are
met. We also assume, without deciding, that offensive
collateral estoppel can be applied against municipal entities in
some circumstances. See generally Trustees of the Stigmatine
Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 566
(1976).
19
private and public litigants for collateral estoppel purposes,
and holding that nonmutual offensive collateral estoppel cannot
be applied against United States).
D. Remaining issues. For the first time on appeal, the
applicant argues that the judge's subsidiary findings in Pharmer
compel the conclusion that Munsell Street is a public way by
prescription. This was not a basis argued in the applicant's
motion for summary judgment, and we need not consider arguments
raised for the first time on appeal. See Carey v. New England
Organ Bank, 446 Mass. 270, 285 (2006). Were we to exercise our
discretion to consider the argument, however, we would conclude
that the applicant's reliance on those findings in this case is
misplaced. As discussed, the judge in the Pharmer litigation
did not decide the prescription issue. To be given collateral
estoppel effect, the prior findings must be essential to the
judgment rendered, and here the findings that the plaintiffs
seek to rely on do not satisfy that requirement. See Jarosz v.
Palmer, 436 Mass. 526, 533 (2002) ("For a ruling to have
preclusive effect, it must have a bearing on the outcome of the
case").
The applicants did not argue in the Superior Court that
issue preclusion should apply to the 1975 confirmation
proceeding that identified Munsell Street as a public way. On
appeal, the applicant cites no law suggesting that a street may
20
become public simply because it is shown as public on a plan
that confirms title pursuant to G. L. c. 185, § 26A. While the
applicants contend on appeal that the title to, and boundaries
of, Munsell Street were actually litigated in 1975, no such
argument was made in the Superior Court. Because this issue was
not raised below, we do not decide whether public way status
might be established through such an adjudication.
Conclusion. In summary, the judge's conclusion that
Munsell Street in front of lot B is a public way was an error of
law. Moreover, the applicant's summary judgment materials did
not show that Munsell Street otherwise meets the criteria
necessary to exclude the instant application from subdivision
approval under § 81L. The judgment in favor of the applicant is
vacated.
So ordered.