32 Mass. App. Ct. 72 | Mass. App. Ct. | 1992
Whether the plaintiffs’ proposed plan dividing land abutting on Side Hill Road in Hingham is entitled to the endorsement “approval not required” (ANR) under G. L. c. 41, § 8IP, depends on whether Side Hill Road is a
The judge found that the road has been a public way since 1737, but also found that, in its present condition, it did not satisfy the requirement of safe access for emergency and other vehicles. For this reason, he at first held that the planning board had the “right to determine whether sufficient access to the lots on the plan exist [s] as part of the approval process of an ANR plan .... [and that its decision not to give the ANR endorsement] did not exceed its authority.”
The plaintiffs moved for a new trial and, relying on G. L. c. 84, §§ l
In the action seeking relief in the nature of mandamus, the judge allowed the town’s motion for summary judgment, rul
1. Status of Side Hill Road for purposes of G. L. c. 41, § 81L.
The judge found that on March 30, 1737, the town voted to accept Side Hill Road as a public way and that, at a meeting in 1738, the proprietors
2. Adequacy of access. Citing Gifford v. Planning Bd. of Nantucket, 376 Mass 801, 808-809 (1978), Hrenchuk v. Planning Bd. of Walpole, 8 Mass. App. Ct. 949 (1979), and Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144 (1983), the planning board claims that it may consider the adequacy of access to the lots, see Hutchinson v. Planning Bd. of Hingham, 23 Mass. App. Ct. 416, 420-421 (1987), and that the judge in his original findings, set forth in the margin,
Deficiencies in a public way are insufficient ground for denying the endorsement. The ANR endorsement for lots fronting on a public way, provided for in G. L. c. 41, § 81L (note 3, supra), is a legislative recognition that ordinarily “lots having such a frontage are fully accessible, and as the developer does not contemplate the construction of additional access routes, there is no need for supervision by the planning board on that score.” Gifford v. Planning Bd. of Nantucket, 376 Mass. at 807. Moreover, 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. As indicated in part 3 of this opinion, public officials can bring a municipality to task if it fails to perform its road maintenance duties.
3. Mandamus against the town. The judge, as noted earlier, based his decision to deny discretionary relief in the nature of mandamus on the absence of any specific criteria for maintaining a public way. As stated in MacDonald v. Boston, 318 Mass. 618, 619 (1945), and Green v. Wilmington, 339 Mass. 142, 144 (1959), the “standard of duty [to keep a way in repair] is not an absolute or inflexible one, but should be given an application which is related to the character of the way and to the kind and amount of travel at the location of the alleged defect.” The judge correctly noted that the “width, surface, drainage, ingress and egress and grades of any public way will vary dependent upon the usage of said way by travelers in a particular community.” Much discretion must be afforded the town in this regard, particularly because of the heavy financial pressures on local government, cf. McCarthy v. Street Commrs. of Boston, 188 Mass. 338,
The parties assumed that abutters, as well as injured persons who come within G. L. c. 84, § 15,
Under G. L. c. 84, not only injured persons, but also certain public officials are charged with making sure the town abides by its obligations. The Commonwealth, pursuant to G. L. c. 84, § 22,
We see no error in the denial of mandamus or a judicial declaration of the town’s duties,
Judgments affirmed.
Under G.L. 41, § 81L, “the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision ... if, at the time when it is made, every lot within the tract so divided has frontage on ... a public way . . .”
General Laws c. 84, § 1, in relevant part provides:
“Highways and town ways, . . . shall be kept in repair at the expense of the town in which they are situated, so that they may be reasonably safe and convenient for travelers, with their horses, teams, vehicles and carriages at all seasons.”
See note 3 supra.
There was testimony that “proprietors” were original private owners of large undivided tracts of land in Colonial New England.
The record contains a number of documents and the transcript of the testimony of the planning board’s expert, but it does not include all the evidence. For example, it does not include the 1738 vote of the proprietors, although no one disputes that there was such a vote.
The Hingham records of the meeting set forth that both the report of the committee appointed to search the records respecting highways and to see what more would be needed for the town’s use and the report of the selectmen of their laying out the same ways for the use of the town were read and that:
“the town by a vote on each of them singlely accepted the same as ways for the towns use forever to all intents and purposes PROVIDED and upon no other consideration that where any of the ways are laid on the proprietors land in said town they do; that is the proprietors appropriate the said lands used for a way to that use and*75 no other as also to free the town from any charge of fencing out the same which is as followeth:”
A list of ways then follows. The judge found, “[T]here is absolutely no question that the road laid out as #26 and #27 in the vote of 1737 is the way presently known as Side Hill Road.”
These, among other things, show that, in 1847, Side Hill Road was recommended for repair and also show a 1912 town vote that a portion of Side Hill Road be discontinued.
The judge made the following findings as to access: “The photographs in evidence clearly show that Side Hill Road is a passable woods road of a dirt substance with some packed gravel approximately 11-12 feet in width, muddy in spots and close to impassable at very wet portions of the year. Angles for ingress and egress at either end onto East Street or Cardinal Cushing Highway are such that it would be very difficult for large emergency vehicles to turn onto Side Hill Road. The road is wide enough for one car only.” At another point the judge concluded: “Side Hill Road, in its present condition, does not satisfy the requirement of safe access for emergency and other vehicles to the lots in question.”
General Laws c. 84, § 15, provides:
“If a person sustains bodily injury or damage in his property by reason of a defect or a want of repair . . . upon a way, and such injury or damage might have been prevented, or . . . might have been remedied by reasonable care and diligence on the part of the . . . town ... he may, if such . . . town . . . had or, by the exercise of proper care and diligence, might have had reasonable notice of the defect or want of repair . . . recover damages therefor from such . . . town. . . .”
General Laws c. 84, § 22, provides:
“If a town neglects to repair any way which it is obliged to keep in repair, or neglects to make the same reasonably safe and convenient when encumbered with snow, it shall pay such fine as the court may impose.”
General Laws c. 84, § 7, in relevant part provides:
“Surveyors of highways and road commissioners shall remove whatever obstructs the public ways within their respective towns or districts, or endangers, hinders or incommodes persons traveling thereon; and shall forthwith cause snow to be removed or trodden down so as to make such ways reasonably safe and convenient. If a town neglects to vote a sufficient amount for the proper repair of ways therein, or does not otherwise effectually provide therefor, each surveyor, in his district, or the road commissioners, may employ persons to make such repairs, who shall be paid by the town. . . .”
The cases suggesting that abutters may bring mandamus for the construction of ways, see, e.g., Metcalf v. Boston, 158 Mass. 284, 286 (1893), and McCarthy v. Street Commrs. of Boston, 188 Mass. 338 (1905), were brought under the predecessors of G. L. c. 82 and similar statutes, and not of G. L. c. 84. See also Marcus v. County Commrs. of Norfolk, 344 Mass. 749 (1962).
Courts “commonly assume that municipalities and public officers will do their duty when disputed questions have been finally adjudicated,” Commonwealth v. Hudson, 315 Mass. 335, 343 (1943), and do not normally issue orders to such persons.