Opinion
11-P-307
11-09-2011
ROBERT J. MURPHY v. PLANNING BOARD OF WEST TISBURY.
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
The plaintiff, Robert J. Murphy, submitted a plan to the defendant West Tisbury planning board (board), requesting endorsement of the plan as 'approval not required' under G. L.
c. 41, § 81P. The board denied the requested endorsement, and Murphy appealed the denial to the Superior Court. See G. L.
c. 41, § 81BB. Following entry of a judgment affirming the board's decision, Murphy appealed to this court. We reverse.
Under G. L. c. 41, § 81L, a subdivision is defined (as pertinent here) as 'the division of a tract of land into two or more lots and shall include resubdivision, and, when appropriate to the context, shall relate to the process of subdivision or the land or territory subdivided.' Under G. L. c. 41, § 81P, '[a]ny person wishing to cause to be recorded a plan of land . . . who believes that [the] plan does not require approval under the subdivision control law, may submit his plan to the planning board . . . and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon . . . the words 'approval under the subdivision control law not required' or words of similar import . . . . Such endorsement shall not be withheld unless such plan shows a subdivision.'
The definition goes on to exclude certain specified divisions of land from the definition of 'subdivision' for purposes of the subdivision control law.
The plan submitted for endorsement by Murphy in the present case did not divide any tract of land into two or more lots. It accordingly did not show a subdivision, as that term is defined in c. 41, § 81L. In turn, Murphy was accordingly entitled to the requested endorsement under c. 41, § 81P.
In explaining its denial of the requested endorsement, the board explained that (in its view) the land shown on the plan submitted by the plaintiff is restricted to use as a recreational area, and is not a buildable lot. Continuing, the board stated its view that '[t]he applicant may not use the ANR process to redesignate that lot as a buildable lot without submitting to the public hearing process under the subdivision control [sic].' The board's explanation misapprehends the effect of the requested endorsement. As explained in Hamilton v. Planning Bd. of Beverly, 35 Mass. App. Ct. 386, 389 (1993) (Hamilton), '[t]he endorsement of such a plan is a routine act, ministerial in character, and constitutes an attestation of compliance neither with zoning requirements nor subdivision conditions.'
We note that the plaintiff in Hamilton had previously obtained endorsement of a plan under c. 81, § 81P, dividing a lot shown on a previously approved subdivision despite a condition of the previous approval limiting the number of lots in the subdivision. After his subsequent application for a building permit was denied, the plaintiff sought a declaratory judgment stating that the planning board's endorsement of his plan constituted a waiver of the lot limit condition. The case accordingly illustrates both the entitlement of a plan to endorsement under § 81P if it does not show a subdivision as defined in § 81L, and the fact that such endorsement has no effect on the eligibility of the land shown on such a plan for a building permit. The case upon which the motion judge in the present case relied in affirming the board's denial, J.A. Taylor Constr. Co. v. Board of Appeals of Northbridge, 73 Mass. App. Ct. 1105 (2008) (J.A. Taylor), is similarly inapposite; as in Hamilton, the landowner in J.A. Taylor obtained an 'approval not required' endorsement of a plan that did not show a subdivision, and subsequently appealed from the denial of a building permit for construction on the land. The appeal in J.A. Taylor concerned the eligibility of the parcel for a building permit, and not any question of the entitlement of a plan showing the lot to endorsement under § 81P.
The judgment is vacated, and a new judgment shall enter directing the board to endorse the plan in the manner described by G. L. c. 41, § 81P.
In its brief, the board suggests that Murphy's failure to appeal from a 2001 judgment, affirming denial of a building permit for his land, has preclusive effect on any future attempt by him to obtain a building permit for the parcel. The present appeal does not present that question, and we offer no comment on it.
So ordered.
By the Court (Green, Hanlon & Carhart, JJ.),