Opinion
No. 91-2332
August 9, 1996
FINDINGS, RULINGS AND ORDER FOR JUDGMENT
This is a zoning appeal from the Oxford Board of Appeals' upholding of the Building Inspector's denial of a building permit with respect to approval of building lots sought by the plaintiff, which was denied by the Building Inspector on the ground that the lots did not have the required frontage on a street.
Based upon all the credible evidence, the Court makes the following findings, rulings and order for judgment.
On June 26, 1989, plaintiff filed a preliminary plan with the Oxford Planning Board, approval of which was denied on July 26, 1989. In her petition, she had suggested that access to her proposed lots be by way of a partially discontinued, forty-foot wide road bordering Carbuncle Pond on the southerly side of her property. The Planning Board recommended that consideration be given instead for access to her lots from Town Beach Access Road, which runs along the northerly side of her property. She subsequently sought approval for such a plan, showing access from Town Beach Access Road which the Planning Board endorsed "approval not required", and the plan was subsequently recorded.
Shortly thereafter, in 1991, plaintiff's informal request for building permits for her proposed lots was refused by the Building Inspector. On April 10, 1991, she appealed to the Zoning Board of Appeals, but the ZBA declined (by a 2-2 vote) to overturn the Building Inspector's action. She then filed this court action.
For a building permit to issue under the zoning bylaws, each lot must have 150 feet of frontage along a "street" to which it is "contiguous" and to which it has "legal and physical access".
Although the Court finds that plaintiff's lots do have 150 feet frontage which is contiguous to Town Beach Access Road, the Court finds that Town Beach Access Road is not a "street" as defined by the Bylaws. Town Beach Access Road is a one lane, paved driveway only twelve feet wide, without curbing or sewers. The road, moreover, was never accepted by the town as a public way, and was never shown on any plan approved or endorsed in accordance with the Subdivision Control Law. It is well settled that plans endorsed "approval not required" are not considered to be "approved" under a Subdivision Control Law, but are considered to have been merely "endorsed". Corrigan v. Board of Appeals of Brewster, 35 Mass. App. Ct. 514 (1993).
Nor did plaintiff sustain her burden of proof to show that the road was "a way in existence when the Subdivision Control Law became effective in the town", or that the town considers it to have "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. . .", as required by statute and Bylaw to constitute a "street."
Plaintiff also contends that Town Beach Access Road is a public way by prescription. The evidence indicates, however, as the name of the road itself indicates, that it was used only as access to the town beach and/or to the playing fields adjacent to the high school, rather than for "general use" by the public. Nor did plaintiff prove that she actually used that road for access to her house which access, in respect to the lots in question, is impeded by a chain link fence between the road and her property.
Finally, plaintiff cannot succeed on the basis of estoppel. Although the town officials did encourage her to seek access by way of Town Beach Access Road rather than by way of the old road along Carbuncle Pond, the doctrine of estoppel will not generally be applied to public entities where to do so would negate requirements intended to protect the public interest. R.C. Management Corp. v. Planning Board of Southbridge, 31 Mass. App. Ct. 510 (1991).
In short, there is no evidence that the Board of Appeals' actions in refusing to overturn the denial of building permits by the Building Inspector, were arbitrary, capricious, or were otherwise in violation of law.
ORDER
Accordingly, it is ordered that judgment shall enter for the defendants.
Thayer Fremont-Smith Justice of the Superior Court
DATED: August 9, 1996