Opinion
11-P-509
12-14-2011
RICHARD HOULE & another v. PLANNING BOARD OF PLAINVILLE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On remand in this case the judge found the following facts with respect to Peck Road, the road at issue: The judge found the road is 'passable depending upon weather conditions.' He found that '[p]ortions of the unfinished roadways are firm and suitable for all four wheel vehicles,' but that '[o]ther portions have a less solid base and tend to hold water after storms and become rutted making the street suitable only for four wheel [drive] vehicles or vehicles with oversized tires.' The judge found that these are 'deficiencies' that 'limit' Peck Road's 'ability to provide safe access for emergency and other vehicles.' Nonetheless the judge found that 'these deficiencies are not grounds for denying an endorsement under G. L. c. 41, § 81L[;] 'since municipal authorities have the obligation to maintain such ways, there is already public control as to how perceived deficiencies, if any, in such public ways are to be corrected" (citing Sturdy v. Planning Bd. of Hingham, 32 Mass. App. Ct. 72, 76 [1992]).
The parties are in agreement that the reference to 'four wheel' vehicles in this latter sentence refers to four wheel drive vehicles.
As we stated in Sturdy, '[A] planning board may withhold the ANR endorsement (where the tract has the required frontage on a public way) only where the access is 'illusory in fact." Id. at 75. As we explained in Ball v. Planning Bd. of Leverett, 58 Mass. App. Ct. 513, 518 (2003), our most recent decision construing G. L. c. 41, § 81L, to determine whether a public way like this one that is 'more than a paper street' is nonetheless illusory, we must determine whether the roadway provides a 'practical means of access for emergency vehicles.'
The finding that after a storm portions of Peck Road are passable only by 'four wheel [drive] vehicles or vehicles with oversized tires,' a category that the undisputed evidence shows does not include emergency vehicles, means that there is no practicable means of access for emergency vehicles to the parcels described by the appellants. The judge's factual finding of this substantial inadequacy places Peck Road 'beyond the deficiencies of the way at issue in Sturdy.' Ball, 58 Mass. App. Ct. at 518. Consequently, the judgment dated February 24, 2011, must be reversed.
As the court in Ball noted, 'Practical access existed in Sturdy,' 58 Mass. App. Ct. at 518 n.3, where the road was found 'passable' although 'close to impassable at very wet portions of the year.' Sturdy, supra at 75 n.10. The factual findings in Sturdy also said that because of the '[a]ngles for ingress and egress at either end' of the street, 'it would be very difficult for large emergency vehicles to turn onto' it. Ibid. There was no finding, however, as there is in this case, that meant that it would, on a regular basis, be impossible for emergency vehicles to have access to the property at issue.
So ordered.
By the Court (Cypher, Vuono & Rubin, JJ.),