Opinion
20-P-351
12-14-2021
EVAN WILE v. PLANNING BOARD OF BEVERLY & another [1] (and three companion cases [2]).
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
At the heart of this decades-long dispute between owners of abutting oceanfront properties in the city of Beverly is whether a paved, twenty-foot wide right of way provides "frontage" for their properties for zoning and subdivision control purposes. The city's board of appeals has allowed Carol L. Horvitz, trustee of Edgewater House Trust, to rely on the twenty-foot wide right of way for permitting. However, the board of appeals and the city's planning board have not allowed her abutter, the plaintiff, Evan Wile, trustee of West Street Realty Trust, to rely on the same twenty-foot wide right of way for permitting. Following a trial, a judge of the Land Court concluded that the right of way provides frontage for Wile's lot and concluded that both properties have frontage sufficient for a building permit and that Wile's lot has frontage sufficient for subdivision approval. The judge affirmed the permitting decisions for the Horvitz lot, and remanded Wile's building permit and subdivision applications for further review, with the proviso that neither could be denied on the basis of a lack of sufficient frontage. We affirm, but for reasons different, in part, than those of the trial judge.
As noted by the Land Court judge, the plaintiff's efforts to build a home on his property and the neighboring defendant's efforts to prevent construction have led to twenty-seven years of litigation and seventeen lawsuits involving the properties. Many of those cases were appealed to this court.
Wile's right to use and improve his property were established by prior litigation. See Wile v. Board of Appeals of Beverly, 64 Mass.App.Ct. 1107 (2005) (Rattigan v. Wile, 46 Mass.App.Ct. 1103 [1998], affirmed Land Court decision that Wile's property "enjoys an easement along its northwesterly boundary over a right of way located on [Horvitz predecessor's] land"). See also Wile vs. Rattigan, Land Ct., No. 04 Misc. 304412 (November 26, 2008) (establishing that Wile's easement is twenty feet wide along its entire length, including where it passes in front of Wile's property).
After this appeal was docketed, we inquired of the Land Court whether, given the decision to remand to the board of appeals and the planning board, the judgment was final and appealable. The Land Court judge responded that the court did not retain jurisdiction over the remands; that the issues determined in this case were final; and that on remand, the boards were entitled to reassess the applications in light of the judge's final determination of key issues. The Land Court docket indicates that, in fact, on remand, the planning board granted subdivision approval and the building inspector issued a building permit. New appeals of those decisions, however, have been filed, and counsel indicated that they are in abeyance awaiting this decision. The preferred procedure would have been for the judge to retain jurisdiction following remand.
Background.
We summarize the facts as stipulated by the parties or found by the trial judge, reserving certain facts for later discussion. Horvitz, as trustee of Edgewater House Trust, owns an ocean-front lot that has been improved with a mansion since approximately 1910, and recently further improved by construction of a 6, 500 square foot addition that houses an art gallery and offices. The Horvitz lot consists of a large rectangular section that fronts the ocean to the southeast, and a long, curving strip running northeasterly to the public way, West Street. On a 1950 subdivision plan approved by the planning board (1950 plan), the strip is shown as "the Avenue." Horvitz concedes that the Avenue became a subdivision road in 1950.
The 1950 plan can be found in volume IV of the appendix at 22.
The plaintiff, Evan Wile, as trustee of West Street Realty Trust, owns the abutting ocean-front lot (lot or property). The lot was created by the 1950 plan and is shown as "Front of Lot No. 1" on that plan. Wile's lot also fronts the ocean to the southeast and shares its easterly boundary with Horvitz's westerly boundary. At the northerly intersection of the Horvitz and Wile lots, as shown on the 1950 plan, an eight-foot right of way intersects with the Avenue and proceeds across the front of Wile's lot. The 1950 plan identifies the portion of the Avenue in front of Wile's lot as an "8 Ft. Right of Way." The Avenue has not remained eight feet wide, however. In 1954, the prior common owner of the Horvitz and Wile lots obtained a strip twelve feet wide across the northwestern abutter's property that runs parallel to the Wile lot. After adding the twelve-foot strip to the eight-foot right of way, the Avenue became twenty feet wide in front of the Wile lot. We refer to the roadway in front of the Wile lot and the way labeled "the Avenue," collectively, as the Avenue. At times, to distinguish, we refer to the portion in front of Wile's property as "the connector."
Horvitz claims that the beneficial interest of the West Street Realty Trust has been or should have been transferred to Wile's former wife as a result of an order of the Probate and Family Court related to their divorce (order). The decision of the trial judge in this case described the ordered transfer as "security," however, and so far as the record reflects, Wile remained the trustee of the West Street Realty Trust, even if the beneficial interest had been or should have been transferred to his former wife. The order did not prohibit Wile from remaining trustee of the trust. Moreover, the order also required both Wile and his former wife to cooperate with efforts to obtain a building permit for and to sell the property. In addition, the order required Wile to consult with the former wife and keep her informed with regard to a building permit for the Beverly property. It is apparent that the Probate and Family Court judge understood that Wile would have sufficient control of the property to pursue a building permit and ultimate sale. Accordingly, we discern no impediment to Wile's standing, as trustee, to pursue these appeals. See Larson v. Sylvester, 282 Mass. 352, 357-358 (1933) (discussing trustee's role with regard to trust property). We note that the subdivision case was commenced by Wile individually in 2001, long before the 2010 order was entered by the Probate and Family Court. We treat his continued involvement to be in his capacity as trustee of the West Street Realty Trust. The Land Court, upon proper motion, may entertain a motion to substitute. For convenience and consistency with the Land Court, we refer to Wile, as trustee, as the owner throughout this decision.
The plan showing the strip obtained in 1954 can be found in volume IV of the appendix at 30, and depicts the strip as also extending northerly, running parallel to the vertical portion of the Avenue. At the same time, the then owner of the Horvitz and Wile lots released his right to pass over the twenty-foot right of way along the side of the lot that separated the Wile lot from another twenty-foot way known as Haven Way. Thereafter, if not before, access to the Wile lot has been by the Avenue, including the strip in front of the Wile property.
Until 1985, the Horvitz and Wile lots were held in common ownership. When they were separated in 1985, the Wile lot was granted a right of way over the twenty feet fronting its northerly boundary and along the rest of the Avenue to the public way. Decisions of this court and unappealed decisions of the Land Court have confirmed that Wile enjoys an easement twenty feet wide across the length of the Avenue, including along the front of his property, and along the Avenue to the public way. See note 4, supra.
Notwithstanding Wile's established easement, in 1999 the Beverly board of appeals revoked a building permit issued by the building inspector for a single-family home on Wile's property, stating that because of the Avenue's "narrow width and marginal physical condition, it was not functionally a street," as required by the then-applicable city zoning ordinance. Wile v. Board of Appeals of Beverly, 64 Mass.App.Ct. 1107 (2005). In the subsequent appeal we concluded that "[t]he board's judgment in that regard, which was informed by visits to the subject property by each board member who voted on [Horvitz's predecessor's appeal], [was] entitled to substantial deference." Id., citing Davis v. Zoning Bd. of Chatham, 52 Mass.App.Ct. 349, 356 n.11 (2001).
Since then, however, Wile has paved the Avenue to a width of twenty feet along its entire length to the public way. The city has also changed its definition of frontage. Armed with these changed circumstances, Wile again sought a building permit. Nonetheless, the building inspector denied the permit and the board of appeals affirmed. The board of appeals reasoned that
Although we are bound by prior decisions that established Wile's easement rights over the Horvitz property, we are not bound by prior decisions as to whether the Avenue satisfies the frontage requirement today because there has been a material change in conditions. See Barry v. Planning Bd. of Belchertown, 96 Mass.App.Ct. 314, 322 (2019) (collateral estoppel not applicable to previously adjudicated issue when material facts have changed).
Aside from the ongoing dispute about frontage, the Wile lot complies with all of the dimensional criteria for a building permit under the applicable zoning ordinance. Accordingly, in applying for a building permit, Wile did not purport to rely on a status as a lawful prior nonconforming lot.
"[t]he Board determined that the paved way at issue does not meet the criteria set forth in section 38-2.B.30 [of the zoning ordinance]. The way was originally an 8-foot wide path intended for foot traffic. The path was widened to its present 20-foot width in recent years when Mr. Wile paved the original 8-foot path plus an additional [12]-feet of yard without seeking or receiving approval from the Beverly Planning Board. As such, the 'way' as it exists today does not meet any of the criteria . . . because it is not a 'way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law,' and it is not a way that was physically in existence when the Subdivision Control Law became effective."
The planning board also denied Wile's application for subdivision approval. The planning board found that Wile had requested an "unacceptable" number of waivers related to the Avenue; the subdivision plan did not meet the statutory definition of subdivision; and Wile did not satisfactorily establish his right to use the Avenue for a full width of twenty or twenty-four feet.
Wile appealed from both the denial of the building permit and the denial of the subdivision approval.
As to the Horvitz lot, in 2009 Horvitz sought to construct a 6, 500 square foot addition to the preexisting nonconforming mansion on her property, also relying on the Avenue for access. In connection with that project, pursuant to § 29-27.D of the zoning ordinance, she requested a finding that the proposed addition would not be "substantially more detrimental than the existing non-conforming structure or use to the neighborhood and that it does not create a new non-conformity." The board of appeals approved the requested finding. Although Wile filed an appeal from that decision, Horvitz proceeded with construction, taking the risk that the building permit would be overturned. Horvitz also sought and obtained a building permit, which issued with a note that the § 29-27.D finding had been appealed and that construction would be performed "at owner's own risk. Wile also appealed from the § 29-27.D finding and the issuance of the building permit.
Substantially the same language is found in G. L. c. 40A, § 6, for extensions or alterations of preexisting nonconforming structures. Horvitz claims that her lot is a lawful prior nonconforming lot.
Discussion.
"On appeal from a decision of a local zoning board, a judge of the Land Court (or Superior Court) shall hear the dispute de novo and determine the legal validity of a board's decision, on the facts as found by the court." 81 Spooner Rd., LCC v. Zoning Bd. of Appeals of Brookline, 78 Mass.App.Ct. 233, 233 (2010), S.C., 461 Mass. 692 (2012). "We are mindful that 'a judge must give "substantial deference" to a board's [reasonable] interpretation of its zoning bylaws and ordinances.' Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009). Incorrect interpretations, however, are not entitled to deference." Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass.App.Ct. 336, 342 (2013). "Our review of the meaning of statutory or regulatory language is de novo." Schiffenhaus v. Kline, 79 Mass.App.Ct. 600, 604 (2011).
A. Frontage.
The parties agree that the lots at issue are located in the R-45 one-family district that since 1975 has required 175 feet of frontage. Section 38-2.B.30 of the Beverly zoning ordinance, which the judge and the parties agree is applicable to this case, provides:
"Only sufficient frontage on one of the following types of ways shall be recognized for zoning purposes:
"1. a public way or a way certified by the City Clerk that is maintained and used as a public way;
"2. a way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law; or
"3. a way physically in existence when the Subdivision Control Law became effective in Beverly having, in the opinion of the Planning Board, 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, and for the installation of municipal services to serve such land and the buildings erected or be [sic] erected thereon."
The Avenue is not a public way. Thus, in order to comply with the zoning ordinance, the Avenue must comply with the second or third definition of frontage.
Horvitz asserts in her brief, without citation to the record, that it is undisputed that neither the first nor second definition of frontage applies. However, Wile argued to the judge that the way was approved in the 1950 subdivision plan, and in her reply brief, Horvitz asserts that "[a]t each stage of litigation, from the initial pleadings through trial [, ] post-trial briefing and oral arguments, Wile narrowly tailored his theory relating to frontage to only one type of recognized way -- 'a way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law, '" to wit the 1950 plan. She further contended that the judge improperly decided, sua sponte, that the Avenue met the third definition, when all along Wile had been arguing that the Avenue met the second definition.
1. A way in existence prior to adoption of the subdivision control law.
The parties stipulated that the subdivision control law was accepted by the city on April 16, 1945, and the judge so found. The judge further found that the way was in existence and used for vehicular traffic before April 16, 1945. The judge believed these findings were necessary based on his interpretation of the phrase "way physically in existence" as it is used in § 38-2.B.30. On appeal, the parties have understandably focused on this basis of the judge's decision. We need not decide, however, whether "way physically in existence" means, as the judge concluded, a way suitable for vehicular traffic at its inception, or whether the provision requires only a showing that the way was more than a paper way prior to the adoption of the subdivision statute. Nor do we need to decide whether the judge's findings with respect to vehicular traffic on the way before 1945 were sufficiently grounded in the record. We do not need to reach any of these issues because, as is discussed below, the way appeared on the approved 1950 subdivision plan and was approved with that plan.
Our review of the record indicates that some of the judge's subsidiary findings and inferences on this issue were not supported by the record. The judge characterized an earlier Land Court decision dated January 13, 1997, as finding that the eight-foot right of way existed on the ground prior to 1945. That decision did not so find; the judge in that case found that the right of way existed on the ground in the 1985-1987 time period. Many of the inferences drawn by the trial judge here stemmed from the twenty-foot width of the frontage, and there is no evidence it was ever twenty feet wide until at least 1954 when twelve feet were added to the eight-foot right of way. Inferences drawn from events in 1954, after the 1950 plan was approved and the 1954 transaction that eventually allowed the right of way to widen to twenty feet, to support conditions in 1945 when the subdivision control law was adopted in Beverly, are attenuated at best. If the judge's inferences were correct, it would mean that there existed a twenty-foot right of way in 1945; it was reduced to eight feet on the 1950 subdivision plan; and steps were taken in 1954 to allow it to increase to twenty feet again. The testimony the judge relied on to find that the eight-foot way was shown on plans in the 1930s stated only that the lot was shown on a 1930s plan. Indeed, there is a 1939 plan and a 1940 plan in the record that do not show the eight-foot way or any right of way in that vicinity.
A paper street or way is a street or way "shown on a plan but not built on the ground." Berg v. Lexington, 68 Mass.App.Ct. 569, 570 (2007) .
2. A way shown on an approved plan.
The board of appeals concluded that the Avenue -- at least where it fronts the Wile property -- is not a way shown on a plan approved and endorsed by the planning board in accordance with the subdivision control law. The judge declined to reach this issue, although Wile raised it at trial and also raises it on appeal. In light of the lengthy history of this litigation, we exercise our discretion to consider the issue, which poses a question of law. See Gabbidon v. King, 414 Mass. 685, 686 (1993) ("It is well established that, on appeal, we may consider any ground apparent on the record that supports the result reached in the lower court"). See also North Shore Corp. v. Selectmen of Topsfield, 322 Mass. 413, 416 (1948) ("If the ruling of the judge was right, the reason on which he rested it is of no materiality").
As explained above, a portion of the twenty-foot wide way that now fronts Wile's property was shown on the 1950 plan and labeled as an eight-foot wide right of way. Nothing on that plan limits the eight-foot wide way to a foot path. Although it is true that surrounding lots subsequently were conveyed with a right to use the eight-foot wide right of way as a foot path at least to reach another right of way that led to the beach, nothing in the record indicates that the planning board, in granting subdivision approval, limited the eight-foot wide right of way to a foot path. Neither the 1950 plan nor the deeds to surrounding parcels prevented the owner of the Wile lot from using the eight-foot wide right of way for vehicular access.
Since the city's definition of frontage here includes "a way shown on a plan approved and endorsed by the Beverly Planning Board in accordance with the Subdivision Control Law," "it is not necessary for this court to review whether the way itself conformed to the substance of those rules. In other words, having convinced the planning board that [the way] met the requirements applicable to ways for purposes of a subdivision plan, there was no requirement that the building permit applicant establish the correctness of the planning board's decision or otherwise reestablish that the way was proper." Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 262 & n.6 (2003), citing LeBlanc v. Board of Appeals of Danvers, 32 Mass.App.Ct. 760 (1992). That the right of way was eight feet wide, alone, does not mean that it was not "a way shown on a plan approved and endorsed by the Beverly Planning Board."
The eight-foot wide right of way appearing in the approved subdivision plan satisfied the city's frontage requirement for zoning purposes. As it has now been expanded to twenty feet wide, and paved its entire width, it is better equipped to serve as frontage. We conclude that the judge was correct in vacating the board of appeals' decision upholding the building inspector's denial of a building permit and remanding to the building inspector with instruction that a building permit may not be denied due to a failure to comply with frontage requirements.
We note that "[a] holding that a board of appeals erred in its interpretation of a zoning by-law or ordinance, standing alone, will not ordinarily suffice to support an order that a permit issue." Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283, 297 (1981). Upon a showing that an applicant is entitled to a building permit, however, "the issuance of a permit is a matter of duty, not discretion, and relief in the form of an order that a permit issue is appropriate." Id. Here, whether the Avenue provides the necessary frontage turned on the interpretation of the ordinance. See Id. at 297-298. The board did not raise any other issues. In these circumstances, we could order the building inspector to issue a building permit. See Id. at 297. See also Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.App.Ct. 245, 250 (2010). We need not do so, however, because the record reflects that the building inspector, on remand by the Land Court, already did so.
B. Subdivision approval.
While we consider our ruling above to be dispositive as to Wile's application for a building permit, a previous decision of this court held that Wile's property required subdivision approval because it had merged with the Horvitz lot for purposes of zoning. We, therefore, also address this ground pressed by Wile, namely that the planning board's denial of Wile's subdivision plan was in error.
The judge here found that Wile sought subdivision approval because the Horvitz and Wile lots had "merged" for zoning purposes and separated in 1985. Indeed, the Land Court decided in 2004 that the Wile lot had merged with the Horvitz lot in 1975 when the city revised its zoning ordinance to require 175 feet of frontage and thereby lost any protection it previously had from G. L. c. 40A, § 6, fourth par. See Wile v. Houseman, 12 Land Ct. Rptr. 4, 8 (2004). That decision was affirmed by this court in Wile, 64 Mass.App.Ct. 1107.
Wile filed an application for subdivision approval on February 13, 2001, relying on the Avenue, including the connector, for frontage. As noted above, the planning board denied the application, concluding that the requested waivers were "unacceptable," the plan did not show a "subdivision," and Wile did not establish that he had the right to use the proposed street for twenty or twenty-four feet throughout its length. The judge vacated the planning board's decision insofar as it denied subdivision approval because of insufficient or inadequate frontage. The judge concluded that the lot was entitled to waivers from the current twenty-four foot width requirement and dead-end length, but remanded to allow the board to reconsider other waivers.
On appeal, Horvitz makes three arguments regarding the application for subdivision approval: the plan did not show a "subdivision" because it addressed only a single lot; not all the owners were listed as "applicants"; and the judge erred in vacating the denial of Wile's waiver requests as they related to the Avenue.
The term "subdivision" is defined in G. L. c. 41, § 81L, as "the division of a tract of land into two or more lots . . . ."
Wile argued in the Land Court, and argues on appeal, that notwithstanding that the subdivision application was for a single lot, subdivision approval was appropriate under G. L. c. 41, § 81Y. Horvitz argues that § 81Y does not apply because Wile did not lack "meaningful awareness" that the lot did not have subdivision approval after being separated from the Horvitz lot. Although the judge did not specifically address the issue, it is implicit in his decision to remand only on the waivers issue that he concluded that the application properly showed a subdivision. The judge found that Wile purchased the lot at foreclosure and that Wile was aware when he purchased the property that his predecessor had received a building permit. The judge further found that Wile "assumed that [he] would be similarly successful in obtaining a building permit, and purchased the lot in reliance on that assumption." Accordingly, we discern no error in allowing Wile to proceed pursuant to § 81Y.
In pertinent part, G. L. c. 41, § 81Y, provides: "Any person owning a lot in a subdivision, approval of which was required by the subdivision control law but not obtained, who did not make the subdivision and acquired title without notice or knowledge of the lack of such approval, may submit a plan of said lot and of the ways giving access thereto to the planning board, and such plan shall be acted upon in the same manner and with the same effect, so far as affects said lot and the rights of access appurtenant thereto, as a plan of a subdivision."
2. Signatures.
Next, citing Kulinska v. Planning Bd. of Wakefield, 357 Mass. 123 (1970), Horvitz argues that her signature on the subdivision application was necessary because she owns the right of way relied on by Wile for access and all owners must be named as applicants. In Kulinska, the relevant subdivision regulation "require[d] that the 'applicant must be the owner of all the land in the proposed subdivision.'" Id. at 12 9. See Batchelder v. Planning Bd. of Yarmouth, 31 Mass.App.Ct. 104, 106-107 (1991). The applicable provisions of Beverly's subdivision rules and regulations, however, define "applicant" as "[a] person (as hereinafter defined) who applies for the approval of a plan of a subdivision . . . [and] shall include an owner or his agent ..." (emphasis added). "Person" is further defined as "an individual . . . having common or undivided interests in a tract of land." The city does not require that "all" owners join in the application. Moreover, unlike in Kuklinska, supra, and Batchelder, supra at 106-108, there is no dispute as to ownership of any of the land at issue; Wile's right to use and improve the Avenue for access to his property has been clearly established in prior cases. See Silva v. Planning Bd. of Somerset, 34 Mass.App.Ct. 339, 342 (1993) (noting that where plaintiff claimed partial fee in proposed street and developer had easement in proposed street and right to make reasonable improvements without consent of plaintiff, fact that plaintiff was not listed as owner did not render decision nullity). See also Berg, 68 Mass.App.Ct. at 578 (rejecting argument that all abutters to private way had to sign subdivision application that contemplated improving way).
3. Waivers.
The final remaining issue is whether the judge exceeded his authority by overturning the planning board's denial of the width and dead-end waivers. "Pursuant to G. L. c. 41, § 81R, a planning board enjoys broad discretion to waive strict compliance with its rules and regulations where the waiver is in the public interest and is not inconsistent with the intent and purpose of the subdivision control law." Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517, 529 (2009). The board's decision "will be upheld unless premised upon a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary" (quotations and citations omitted). Id.
Wile's application sought waivers of the maximum dead-end street length of 250 feet (Avenue totals approximately 870 feet); the twenty-four foot minimum pavement width (plan proposes twenty feet); minimum street intersection radii of thirty feet (plan proposes none); plan scale requirements; locations of trees greater than six inches in caliper (plan does not include information); cul de sac or other turning design (plan proposes hammerhead style]; and crowned roadway slope (plan proposes single cross-slope). The judge found that the hammerhead configuration had been redesigned as a circular design. Horvitz's arguments are directed to the length, width, and intersection radius waivers.
In considering whether a waiver was warranted, we are mindful that this case presents a unique circumstance in which subdivision approval has been sought for a lot with frontage on a way shown on a plan that already has subdivision approval. In the ordinary course this would mean that subdivision approval is not required, see G. L. c. 40A, § 81L, although the planning board would not necessarily be prohibited from regulating access. See Berg, 68 Mass.App.Ct. at 578-579. In analogous circumstances, where a subdivision way preexisted the adoption of the subdivision control law, we have said that "the planning board could apply its regulations to the rights of way appurtenant to those lots, as long as the . . . planning board applied the law so 'that the existing exempt rights of way . . . are not destroyed or substantially limited or interfered with.'" Id., quoting Toothaker v. Planning Bd. of Billerica, 346 Mass. 436, 440 (1963).
Here, enforcing the length limitation and width requirements would substantially limit Wile's right of way. We need not decide whether similar considerations should apply because we are persuaded that, in any event, the judge correctly concluded that the Wile lot was entitled to the requested roadway, including the width and length waivers.
The judge found that the Avenue, now paved to twenty feet wide along its full length, will serve only three houses and is adequate for two-lane traffic. The judge further found that the Avenue is "flat over its entire length," no one challenged "its adequacy for ordinary vehicle traffic, including ambulances and police," and that "with respect to its adequacy for fire protection purposes, the fire department did on-site investigations with actual fire trucks on three separate occasions and found it not only was adequate for those trucks, but also that it enhanced fire protection for the abutting properties due to the addition of a new fire hydrant on the Wile lot close to both its proposed house, [Horvitz's] buildings," and two other neighboring residences. In addition, Wile agreed to install sprinklers in the proposed residence. The original "hammerhead" turnaround was changed to a circular turnaround and a hydrant was relocated, which, along with the sprinklers, allowed the fire department to approve the plan. As to the length of the Avenue, the judge found that the right of way to the Horvitz property is longer and yet a 6, 500 square foot addition was approved after subdivision approval for the Wile lot was denied.
The judge found that the roadway was adequate and posed no safety issues:
"[The Avenue] is now paved its full 20' width, solving the issue that caused the prior permit to be vacated. There are no problems with fire, emergency, or other access to the Wile property over that roadway -- certainly none that do not also affect [Horvitz's] recently built annex and gallery, which received the zoning board's blessings -- and none at all with normal vehicular passage. . . . [Horvitz's] claim that the roadway is inadequate for [Wile] is contradicted by [her] own use of it as the sole access to [her] home, gallery, and the extensive art collection housed in that home and gallery. And it is further contradicted by [her] own fire insurance company's inspection and approval of the roadway in connection with the insuring of that collection."
As previously noted, we must also assess whether the "waiver[s] [are] in the public interest" and are "consistent" with the intent and purpose of the subdivision control law. Krafchuk, 453 Mass. at 529. The public interest is not served by preventing the development of one ocean-front lot that originally was created by subdivision approval in 1950 and still today meets all the current dimensional requirements of the zoning ordinance. This is particularly true where access over the now improved way to another similarly-situated lot has never raised any safety concerns.
Moreover, waiver of the roadway regulations is not inconsistent with the purposes of the subdivision control law. "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 v. Planning Bd. of Belchertown, 96 Mass.App.Ct. 314, 317 (2019), quoting Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795, 803 (2015). The judge concluded that the adequacy of the way was so apparent, that "to find otherwise would be irrational, arbitrary and capricious, particularly in light of the board [of appeals'] treatment of . . . other similarly situated properties in the neighborhood." On these facts, even if we were to conclude that the planning board could apply all its rules and regulations applicable to subdivision ways and giving due deference to the planning board, the facts as found by the judge and not shown on appeal to be clearly erroneous demonstrate that the judge correctly decided that Wile was entitled to the requested roadway waivers.
C. Horvitz's art gallery addition.
For the same reasons that the judge found that the Avenue met the frontage criteria for the Wile lot, it provided frontage for the Horvitz lot for purposes of the building permit for her addition. Although Wile appealed from that decision, at oral argument his attorney represented that if the Wile lot is entitled to a building permit, then the addition on the Horvitz lot also was proper, and he would withdraw his appeal from the approvals for the gallery addition. Accordingly, we do not address this aspect of Wile's claims.
Conclusion.
We modify the judgment to delete the portion that states that the entirety of the Avenue "was physically in existence, [twenty feet] wide, prior to the effective date of subdivision control in Beverly." The judgment is further modified to state that the Avenue, including the portion in front of the Wile lot, is a way shown on the 1950 plan, a plan approved and endorsed by the Beverly planning board in accordance with the subdivision control law. In all other regards the judgment is affirmed.
So ordered.
Wolohojian, Sullivan & Ditkoff, JJ.
The panelists are listed in order of seniority.