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19 GREENLAWN AVENUE - ZONING (Form A Decision i �a C�Reen�iw� ova _ . tft#v of �ttlez�i, �'dtt�s�xcl�usE##� ,r 9 � F y n , F.+i . q -rr. 4r Yfl�' FORM A - DECISION Ms . Deborah Burkinshaw City Clerk Salem City Hall 93 Washington Street Salem, MA 01970 RE; 19 GREENLAWN AVENUE (FORMERLY GLENN AVENUE) Dear Ms . Burkinshaw: At a regularly scheduled meeting of the Salem Planning Board held on September 16, 1993, the Planning Board took the following action with respect to an "Approval Under Subdivision Control Law Not Required" plan submitted by Lauri A. Panneton for 19 Greenlawn Avenue: a vote of two ( 2) in favor , six (6) opposed, to endorse the plan. The Board determined that in its opinion the plan requires approval under Massachusetts General Law Chapter 41, the Subdivision Control Law. Sincerely, Walter B. Power, III Chairman EX\DH\FORMADE.NY ,JUL 14 1994 Salem hail ing inapt. r Ctiu of �tt1em, Massarhusetts One $ale- t (Suen n `n ^ N 'FORM A - DECISION o� Ms. Deborah Burkinshaw 'un N y * . City Clerk Salem City Ball Salem, MA 01970 Dear Ms. Burkinshaw: ', At a regularly scheduled meeting of the Salem Planning Board held on July 7, 1994 it was voted to endorse "Approval Under Subdivision Control Law Not Required" on the following described plan: 1 . Applicant : Lauri Panneton 2 . Location and Description: 19 Greenlawn Avenue (formerly Glenn Ave.) Conveying three;:lots to one lot containing 26,446 s.f. with 150 feet of frontage. Road shall be:extedded_20 feet and constructed and paved in conformance with City specifications as directed by the Director of Public Services and the Clerk of Works. Deed or property records in Essex Soutn District Registry. Sincerely, Walter B. Power , III Chairman EX\DH\BPFORMA )1JL-E1`-1 54 i� 55 REEFER 506'_+l_114c5 P.b_' I COMMONIYEALTH OF MASSACHUSETTS II ESSEX, SS. SUPERIOR COURT �I CML ACTION NO. 93-2377B I. LAURI A. PANNETON, i. Plaintiff V. I ) WALTER B. POWER, I11, ET AL, ) Defendants ) I MOTION TO REMAND — I I Now come the Parties it Lih;� above-mentioned matter and respectfully request that this Honorable Court enter aD order rerriandinb This matter to the Defendant Salem I Planning Board for fitrther cowide-ation and state as reasons to support same the following: I 1. The Parties 1n this ,, F t 'i'tr 1 �n agreement whereby the Salem j I� Planning Boardsi r. *c�P ; I s Pian _3 i.sue once the Plainriff has revised same. �I 2. The Parties anticipate that upon remand this matter will be settled without further inv:a-� merit of this Court. li Respectfully submitted, Respectfully submitted, i iiLauri A. Panneton Defendants, By her attorney, j By their attorney, I ' es A1. Fleming � l.�onriVd l F'et:lino ' I BBQ #542657 Assistanr City Soliciror 47 Bufftun Street BBO #162685 11 Salem, MA 01970 One School Sn,eet (508) 744.8341 Beverly, MA 01915 I (508) 921-1990 I �- / _ ---�� •� , , r � �� f 1MPORTAMT MESSAGE FOR A.M. DATE TIME P.M. M OF PHONE AREA CODE NUMBER EXTENSION ■ FAX ■ MOE3ILE AREA CODE NUMBER TIME TO CALL TELEPHONED - PLEASE CALL CAME TO SEE YOU WILL:CALL AGAIN WANTS TO SEE YOU RUSH:' RETURNED YOUR CALL SPECIAL ATTENTION MESSAGE SIGNED TOPS j? FORM 3002W LITHO IN U.S.A. I yy .�OND1T CITY OF SALEM - MASSACHUSETTS ROBERT A. LEDOUX Legal Department City Solicitor LEONARD F FEMINO 508 7453369 93 Washington.Street Assisimt City Solicitor Salem, Massachusetts 01970 506.921.1990 July 1, 1994 Ms. Ann McCarthy Essex Superior Court 34 Federal Street Salem, MA 01970 RE: Lauri A. Panneton V. Walter B. Power, III, et al Civil Action NO. 93-2377B Dear Ms. McCarthy: Enclosed herewith.please find an assented to motion for the Court to consider. Would you kindly file and docket same and contact this office should you need further information. Thank you for the courtesies extended in this regard. Very Vx yours, tit onard F. Femino Assistant City Solicitor LFF/lmp Enclosure cc: William Luster, City Planner James Fleming, Esq. EUyq$ya r �1 = ' i JUI p 5 199, salami ro«14t�c �� pt. COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) I ) WALTER B. POWER, III, ET AL, ) Defendants ) MOTION TO REMAND Now come the Parties in the above-mentioned matter and respectfully request that this Honorable Court enter an order remanding this matter to the Defendant Salem Planning Board for further consideration and state as reasons to support same the following: 1. The Parties in this matter have reached an agreement whereby the Salem Planning Board intends to sign the plan at issue once the Plaintiff has revised same. 2. The Parties anticipate that upon remand this matter will be settled without further involvement of this Court. Respectfully submitted, Respectfully submitted, Lauri A. Panneton, Defendants, By her attorney, By their attorney, J es M. Fleming Von- d F. Femino BBO #542657 Assistant City Solicitor 47 Buffum Street BBO #162685 Salem, MA 01970 One School Street (508) 744-8341 Beverly, MA 01915 (508) 921-1990 �t TU11-14-1954 15: HLFE.LN 500-921415 , P.01 i i I AUXANLLH, FEMINO & LAURANZANO ' ATTORNEYS AT LAW ONE SCHOOL 8TREET LEONARD F. F'c MtIJO BEVER(Y, MASSACHUSETTS 01015 THOMAS J. ALEXANDER MICHAE4 C. LAURAN2ANO 1F.LEPHON€ (508) 921-1990 FAX 1508) 921-4553 FAX COVER SHEET DATE: _ 6FROM:FAX NUMBER: TOTAL NUMBER OF PAGF_.S ,`NCLuDING THIS PAGE) _ CLIENT: FILE NO: (f you de no_ reccil.e all, t1Le pages, Please Call (508) 921 -1 .9c), THE INFOP14ATiON CC)N i:i':rD jN T:'.i5 :r:iLY td;E'SSAGti -S INTENDED ONLY FOR THE PERSONix AIND - c)FTFEAO�: RECRFNTS. THE iNFOP�M1•L4`I'iGN MA'T' BE Fti Ai -,LU F. `,'ENT COMMUf ICATON AND AS SUCH PR.ItiT_ G� ,r. ,.n.rl--•.r•.�- •JED ru4v _ %;vi„_:� : ,A11 . F '! «IP PEA DER OA' T -IIS MESSAGE LS NOT THE *:TEt;C�Li R CII [e'" ?' u`1 A(;FNT R S"' S 3LL 1 OF. Dr,'LP;PLINi: :T O THE I TFENDEI.1) RE )r- N :iPl iJ"i r'c- J n i:E t B: C:( ,LFIEf— TI:A F YOUI HAVE RECE11,1D —T _,AT, ' , D �Sr i 7.NATrov,TH"S DJ ` DiSTRid.:TION, OR CO`"•Ti!C or 1 ;S fe = r_E !S `?TRI :TLYR:J:iIBi—ED. 1F YOU HF`, RE :E^.'Eb T1 I CC=r?",''t.C> '1:.I'U,, !� cRROit a E tSE `�OTf r lis ILII� EDiHA'E . F_ti^ Ri.. `.Jr2ni TF9c Ci FuG. ;FSI.. _v.ESSAGc TO US BY V IT Pi?S;'Ai; .. T.14.1NK YOU. IUh7-14-1994 15:2-.E HLFELP, 5099214553 P.02 t, r�^I Cs.TY OF SALEM • MASSACHUS':= R09EW.4 LUDO�y tey8! Uepartrnent LEONARD F. FEWN0 City jpbe6" 9-� 'Wasni C,}rr n Street Pssistant City Solicitor ns:asalt:i Saiem, Massachusetts 01970 '' June 1, 1994 Mr. William Luster Ciry Planner City of Salem One Salem Green Salem, MA 01970 RE: Panneron v. Salem Planning Board Civil Action No. 93-2377 Dear Bill: EnC.ii,sed nere*vltl: rl.-a;,. f-,? ths, Df:cl :un of Jtidge Brad,' regarding the above- mentioned mirue.s. P., you :ita s:-c, the. Jung denied til_ I-laintL-f_. Motion for Surturnary judgment. Plea-ze adrl t iiy% Board uccord"nb-t,y. 1 V.Ill rn. ;"Kf: n-.,vs r 'i-vai:3%" e IO yUU tilt: Plal2tin ; BOa Yl 10 dtSCUSS a resolution to this imitter. Very truly yours, Leonard F. Femino Assistant City Solicitor LFF,ilmp Enclosure 50892,453 F.03 COM240NWZALTH OF MASSACHUE ETTS SUPERIOR COURT ESSEX, as. CIVIL ACTION NO: 93-2377 LAURI A. PANNETON, Plaintiff vs. WALTER B. POW7R -1T?, I)FF4H%j jrz HI BERP , KC ISTArT.•INOS PRENTAKIs, DAVID H, H"To- ALBERT C. RTLL, CHA :LES N. PUZ.ROr LJVDA J. ,'AtPv'I'<, r;AI TEA L. V...Wgo , :8nd JOHN C. NOUSTA_10, $s they are '.he members of the Planning board of the City of Salem, Defendants llEkiORANPUE4 G ? PZAINTII P'£€ �T'IDA FOR jPMNr- �1BDCiYENT This action 4EtC. b£f Cre :.his Court, Bras 'Ay, J. presiding, upon the mot-_on of tate p3 a..;riti P I a Q!: ! Pajinet: n fn- sursmary judgment pursuant to Mass. R. Civ. P. 56, thf. Partes 1-.avinq been heard, this motion is 2NIED. Pert er trady Dated: May 5, 1494 — Justice 7f the Superior Court JUN-14-1994 15:26 r=;LrE-Lfi 509g2i4553 P.C14 COYMONV-'EALTH OF YASSACHUS-'TTS ESSEX, SS. SUPERIOR COURT CIVIL NO. 93-2377$ LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. PMv ER, 111, i'E RRA j. ) � /y�Q��y AR1N[i ONSTAN :.!'l .r'^ Y'�'...`�Pi�:'�M1T- + k± C.t$ tK*1-affi�yA i•SI ' ' . iAV l P M. F[yf5`I' ,, r us rah F+ss,T,. ) CHAPLF:? M P'17fXG IN"A t . VA+ GH=J) y CARTER L. VIv`CJv, 3'ts -rolRd C. MOUSTEAKIS, as thely are the A members O` '1-lis Planning aoard of. ) �` y ! the City of Salem, Massachusetts ) Defendants ) c O 61 ism PIT'IF 4- S h. s'Fug?IET ''OTICNrt R SLYK WY SIJDiEAENT Now ---omes h— .inti?i, La>Ari A. Pan; Ston, pursuant to Rule 56 of the i'.ii.-s of C .Yi-i Pro( edur-�, and moves this Fionorable- C-o'L:L'fi for fa;iiry _ nlgts:S e.nt. in t! =3 abT:e-clptioned mattar 3 ain t th!-- Defen6ants as they �:y st itUt �! the members of the Plan ing Board of the r, •: o� Salem. l AS her --easo '_.=ael"EfC 2 , ` l e ?iaiiit i ff, T,auri A. PartnetCn, ¢ d tdt� that : ;1 � General L_ `.:r's Chlptel- til. , Section t TUTNL F.6-1 \ V 7/l Li L -^- J . IMPORTANT MESSAGE FOR A.M. DATE TIME - P.M. M OF PHONE AREA CODE NUMBER EXTENSION CI FAX CI MOBILE AREA CODE NUMBER TIME TO CALL TELEPHQNEQ PLEASE CALL CAME TO SEE YOU WILL CALL AGAIN WANTS TO SEE YOU RUSH RETURNED YOUR CALL SPECIAL ATTENTION MESSAGE SIGNED TOPS I? FORM 3002W LITHO IN U.S.A. i COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) NOTICE OF HEARM HILBERT, KONSTANTINOS PRENTAKI-S, ') SrP=iWC=R*9AR(b)M7L60MWMbWQ DAVID M. HART, ALBERT C. HILL, ) ondosift moft 69L Salem.MAa AOLIP3. CHARLES M. PULED, LINDA J. VAUGHN) CK4.044 &'PN k1 CARTER L. VINSON, and JOHN C. ) ALTRRNATMZ DAM WUL VIO?)!EGRANTM MOUSTSAKIS, as they are the a members of the Planning Board of ) y0. the City of Salem, Massachusetts ) tn` Defendants ) Cl vPLAINTIFF LAURI A. PANNETON'S MOTION FOR SUMMARY JUDGEMENT Now comes the Plaintiff, Lauri A. Panneton, pursuant to Rule 56 of the Massachusetts Rules of Civil Procedure, and moves this Honorable Court for Summary Judgement in the above-captioned matter against the Defendants as they constitute the members of the Planning Board of the City of Salem. As her reason therefor, the Plaintiff, Lauri A. Panneton, States that: (1) Massachusetts General Laws Chapter 41, Section COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT ESSEX, ss. CIVIL ACTION NO: 93-2377 T LAURI A. PANNETON, Plaintiff vs. FALTER B. POWER, III, DEBRA J. HILBERT, RONSTANTINOS PRENTARIS, DAVID M. HART, ALBERT C. HILL, CHARLES M. PULED, LINDA J. VAUGHN, CARTER L. VINSON, and JOHN C. MOUSTARIS, as they are the members of the Planning Board of the City of Salem, Defendants MEMORANDUM ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT This action came before the Court, Brady, J. presiding, upon -the motion of the plaintiff Lauri A. Panneton for summary judgment pursuant to Mass. R. Civ. P. 56, the parties having been heard, this motion is DENIED. Poter brady Justice of the Superior Court Dated: May 5, 1994 y �@ CITY OF SALEM - MASSACHUSETTS ROBERT A. LEDOUX Legal Department LEONARD E FEMINO City solicitor 93 Washington Street Assistant City Solicitor 508-74&M Salem, Massachusetts 01970 W&921-19W June 1, 1994 Mr. William Luster City Planner City of Salem One Salem Green Salem, MA 01970 RE: Panneton v. Salem Planning Board Civil Action No. 93-2377 Dear Bill: Enclosed herewith please find the Decision of Judge Brady regarding the above- mentioned matter. As you can see, the Judge denied the Plaintiffs Motion for Summary Judgment. Please advise the Board accordingly. I will make myself available to you and the Planning Board to discuss a resolution to this matter. Very truly yours, Leonard F. Fe Assistant City Solicitor LFF/Imp Enclosure COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT INTRODUCTION The Plaintiff, Lauri A. Panneton (hereinafter "Petitioner"), filed a Form A Application (hereinafter "plan") with the Defendant Salem Planning Board (hereinafter the "Board") pursuant to M.G.L. Chapter 41, Section 81P. Petitioner seeks to combine three lots (hereinafter the "Lot") and build a single-family dwelling on same. The lot abuts Glenn Avenue in Salem, Massachusetts. On or about September 21, 1993 the Board voted against endorsing Petitioner's plan and it determined that the plan requires approval under the subdivision control law. Petitioner filed her appeal pursuant to M.G.L. Chapter 41, Section 81BB and subsequently filed her Motion for Summary Judgm nt. The Board files this Opposition to Petitioner's Motion and two Affidavits in Opposition; one by the Salem Building Inspector and the other by the Chairman of the Board. The Board seeks Summary Judgment in its favor pursuant to M.R.C.P. 56(c). ISSUE Whether the Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. i ARGUMENT The Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. M.G.L. Chapter 41, Section 81P states, in part, the following: Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T, and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words "approval under the subdivision control law not required" or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan shows a subdivision. M.G.L. Chapter 41, Section 81I„ subparagraph 12 defines subdivision and includes in same a definition of what is not considered a subdivision. It states that a division of a tract of land into two or more lots shall not be deemed a subdivision if, at the time it was made, every lot had frontage on one of three types of ways. Consequently, if the Petitioner submitted a plan with frontage on a way as defined in Section 81L, subparagraph 12, the plan would not have shown a subdivision and the 2 i ' t endorsement would have been made by the Board. The Board was compelled to vote against endorsing the plan because the plan did not have adequate frontage on the way. The law supports the Board's decision. Massachusetts case law clearly states that each lot on an ANR plan must have adequate frontage on a way. In Gifford v. Planning Board of Nantucket 376 Mass. 801, 807 (1978) the Supreme Judicial Court stated that: Where our statute relieves certain divisions of land of regulation and approval by a planning board ("approval . . . not required"), it is because the vital access is reasonably guaranteed in another manner. The guaranty is expressed in Sections 81L and 81P of the statute in terms of a requirement of sufficient frontage for each lot on a public way. In the ordinary case, lots having such frontage are fully accessible . . . Conversely, where the lots shown on a plan borrowed on a road "not in any practical sense . . . in existence as a way", and thus incapable of affording suitable access to the lots we insisted that the relevant plan was a subdivision under the then current law. The holding in Gifford has been subsequently reaffirmed and expanded in Hrenchuk v. Planning Board of Walvole 8 Mass. App. Ct. 949 (1979), McCarthy v. Planning Board of Edgartown, 381 Mass. 86 (1980), Gallitano v. Board of Survey and Planning. of Waltham, 10 Mass. App: Ct. 209 (1980), Fox v. Planning Board of Milton 24 Mass. App. Ct. 572 (1987), Corcoran v. Planning Board of Sudbury, 26 Mass. App. Ct. 1000 (1988) and Poulos v. PlannjpZ Board of Braintree 413 Mass. 359 (1992). Each case stands for the proposition that a planning board may vote against endorsing an ANR Plan if vital access is not guaranteed. Petitioner's plan shows that on paper it abuts Glenn Avenue 150 feet. Petition acknowledges in her Memorandum that only 80 feet of Glenn Avenue actually exists on the ground and that the remaining frontage is on paper only. The Board examined 3 i Glenn Avenue and confirmed that only 80 feet of Glenn Avenue actually exists on the ground. (See Affidavit of Walter Power, III.) The Petitioner's lot as shown on her plan is located in an R-1 zone as it is defined in the Salem Zoning Ordinance. The Salem Zoning Ordinance requires that the minimum lot width for Petitioner's lot is 100 feet. The minimum lot width is the same as requiring minimum lot frontage of 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where a plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. (emphasis added) (See Affidavit of Leo F. Tremblay.) As stated above, the Board visited the site to confirm that the traveled way measured only 80 feet and not the 100 feet as required in Article VI Section 6-1(b)(4). Consequently, the board was compelled to deny the plan in compliance with the case law set forth above. Furthermore, the Board cannot endorse the plan because "on paper' the Petitioner's lot has 150 feet of frontage. The recent decision of the Appeals Court in Shea v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519 91993) supports the Board's action. In Shea, the Court stated that a planning board acts properly in denyin an 81P endorsement for reasons related to inadequate access. The Court stated: Not only for the good of the homeowner, but also for the safety of the public, a town can insist that homes not be built on lots lacking adequate access for fire trucks and emergency vehicles. Even if the plaintiffs argument is accepted and Rockville Avenue is in legal contemplation `a way shown on a plan previously approved and endorsed in accordance 4 I with the subdivision control law, . . . the section on which the plaintiffs lot fronts does not exist in fact. A fire truck cannot drive on a plan. A zoning by-law which requires frontage on a way shown on an approved plan must be understood, if the purpose of the by-law is not to be undermined, to require an actual way, constructed on the ground, not just a depiction of a way on a plan. p. 523. Like the Board in Shea this Board must deny endorsing Petitioner's plan for the good of the Petitioner and the safety of the public. The Petitioner's lot abuts a way 80 feet and not the 100 feet as is required in an R-1 zoning district in the City of Salem. CONCLUSION The reasons set forth above support the position that the Board acted properly in denying to endorse the Petitioner's plan. The Board argues that pursuant to M.R.C.P. 56(c) that Summary Judgment must enter for the Board in this matter. Respectfully submitted, Defendants, By their attorney, I onardF. Femino Assistant City Solicitor BBO #162685 One School Street Beverly, MA 01915 (508) 921-1990 5 COMMONWEALTH OF MASSACHUSETTS ESSEX SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAMS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I, Walter Power, III, do depose and say as follows: 1. I am the Chairman of the Salem Planning Board. 2. I was the Chairman of the Salem Planning Board at all times relevant to this matter. 3. Lauri A. Panneton had filed a Form A Application for Endorsement of Plan Believed Not to Require Approval with the Salem Planning Board. 4. The Salem Planning Board reviewed the plan and made a site visit of Glenn Avenue and voted against endorsing said plan. 5. The Salem Planning Board voted against endorsing said plan because the lot abutted the traveled way eighty feet and not one hundred feet as is required. Signed under the pains and penalties of perjury this 15th day of February, 1994. Walter Power, III 2 Jl COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) AFFIDAVIT IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT i I, Leo F. Tremblay, do depose and say as follows: 1. I am employed as the Director of Public Property for the City of Salem. 2. As Director of Public Property, I am the chief zoning enforcement officer for the City of Salem Code of Ordinances. I 3. As Director of Public Property, I am also required to advise the Board of Appeals on zoning matters before it. 4. Greenlawn Avenue and Glenn Avenue in the City of Salem are located in zone R-1. 5. Lots in an R-1 zone must have a minimum frontage on a street of 100 feet. Table 1 entitled Residential Density Regulations states that the minimum lot width in an R-1 zone is 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where a plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. A copy of these zoning regulations are attached hereto. Signed under the pains and penalties of perjury this 15th day of February, 1994. �a Leo E. Tremblay i 2 CERTIFICATE OF SERVICE I, Leonard F. Femino, hereby certify under the pains and penalties of perjury that on this 16th day of February, 1994, I served an original and a copy of the within Defendants' Memorandum in Opposition to Plaintiffs Motion For Summary Judgment and two Affidavits by mailing, postage prepaid, to plaintiffs attorney, James M. Fleming, Esquire, 47 Buffum Street, Salem, Massachusetts 01970. I I onard F. Femino I i I I I 6 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAMS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT INTRODUCTION The Plaintiff, Lauri A. Panneton (hereinafter "Petitioner"), filed a Form A Application (hereinafter "plan") with the Defendant Salem Planning Board (hereinafter the "Board") pursuant to M.G.L. Chapter 41, Section 81P. Petitioner seeks to combine three lots (hereinafter the "Lot") and build a single-family dwelling on same. The lot abuts Glenn Avenue in Salem, Massachusetts. On or about September 21, 1993 the Board voted against endorsing Petitioner's plan and it determined that the plan requires approval under the subdivision control law. Petitioner filed her appeal pursuant to M.G.L. Chapter 41, Section 81BB and subsequently filed her Motion for Summary Judgm nt. The Board files this Opposition to Petitioner's Motion and two Affidavits in Opposition; one by the Salem Building Inspector and the other by the Chairman of the Board. The Board seeks Summary Judgment in its favor pursuant to M.R.C.P. 56(c). ISSUE Whether the Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. ARGUMENT The Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. M.G.L. Chapter 41, Section 81P states, in part, the following: Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T, and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words "approval under the subdivision control law not required" or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan shows a subdivision. M.G.L. Chapter 41, Section 814, subparagraph 12 defines subdivision and includes in same a definition of what is not considered a subdivision. It states that a division of a tract of land into two or more lots shall not be deemed a subdivision if, at the time it was made, every lot had frontage on one of three types of ways. Consequently, if the Petitioner submitted a plan with frontage on a way as defined in Section 81L, subparagraph 12, the plan would not have shown a subdivision and the 2 i endorsement would have been made by the Board. The Board was compelled to vote against endorsing the plan because the plan did not have adequate frontage on the way.I The law supports the Board's decision. Massachusetts case law clearly states that each lot on an ANR plan must have adequate frontage on a way. In Gifford v. Planning Board of Nantucket, 376 Mass. 801, 807 (1978) the Supreme Judicial Court stated that: Where our statute relieves certain divisions of land of regulation and approval by a planning board ("approval . . . not required"), it is because the vital access is reasonably guaranteed in another manner. The guaranty is expressed in Sections 81L and 81P of the statute in terms of a requirement of sufficient frontage for each lot on a public way. In the ordinary case, lots having such frontage are fully accessible . . . Conversely, where the lots shown on a plan borrowed on a road "not in any practical sense . . . in existence as a way", and thus incapable of affording suitable access to the lots we insisted that the relevant plan was a subdivision under the then current law. The holding in Gifford has been subsequently reaffirmed and expanded mi Hrenchuk v. Planning Board of Walpole 8 Mass. App. Ct. 949 (1979), McCarthy v. Planning Board of Edgartown 381 Mass. 86 (1980), Gallitano v. Board of Survey and Planning of Waltham. 10 Mass. App. Ct. 209 (1980), Fox v. Planning Board of Milton 24 Mass. App. Ct. 572 (1987), Corcoran v. Planning Board of Sudbury 26 Mass. App. Ct. 1000 (1988) and Poulos v. PlapDWg, Board of Braintree 413 Mass. 359 (1992). Each case stands for the proposition that a planning board may vote against endorsing an ANR Plan if vital access is not guaranteed. Petitioner's plan shows that on paper it abuts Glenn Avenue 150 feet. Petition acknowledges in her Memorandum that only 80 feet of Glenn Avenue actually exists on the ground and that the remaining frontage is on paper only. The Board examined 3 Glenn Avenue and confirmed that only 80 feet of Glenn Avenue actually exists on the ground. (See Affidavit of Walter Power, III.) The Petitioner's lot as shown on her plan is located in an R-1 zone as it is defined in the Salem Zoning Ordinance. The Salem Zoning Ordinance requires that the minimum lot width for Petitioner's lot is 100 feet. The minimum lot width is the same as requiring minimum lot frontage of 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where a plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. (emphasis added) (See Affidavit of Leo F. Tremblay.) As stated above, the Board visited the site to confirm that the traveled way measured only 80 feet and not the 100 feet as required in Article VI Section 6-1(b)(4). Consequently, the board was compelled to deny the plan in compliance with the case law set forth above. Furthermore, the Board cannot endorse the plan because "on paper" the Petitioner's lot has 150 feet of frontage. The recent decision of the Appeals Court in Shea v. Board of Appeals of Lexington. 35 Mass. App. Ct. 519 91993) supports the Board's action. In Shea, the Court stated that a planning board acts properly in denyin an 81P endorsement for reasons related to inadequate access. The Court stated: Not only for the good of the homeowner, but also for the safety of the public, a town can insist that homes not be built on lots lacking adequate access for fire trucks and emergency vehicles. Even if the plaintiffs argument is accepted and Rockville Avenue is in legal contemplation `a way shown on a plan previously approved and endorsed in accordance 4 with the subdivision control law. . . . the section on which the plaintiffs lot fronts does not exist in fact. A fire truck cannot drive on a plan. A zoning by-law which requires frontage on a way shown on an approved I plan must be understood, if the purpose of the by-law is not to be undermined, to require an actual way, constructed on the ground, not just a depiction of a way on a plan. p. 523. Like the Board in Shea, this Board must deny endorsing Petitioner's plan for the good of the Petitioner and the safety of the public. The Petitioner's lot abuts a way 80 feet and not the 100 feet as is required in an R-1 zoning district in the City of Salem. CONCLUSION The reasons set forth above support the position that the Board acted properly in denying to endorse the Petitioner's plan. The Board argues that pursuant to M.R.C.P. 56(c) that Summary Judgment must enter for the Board in this matter. Respectfully submitted, Defendants, By their attorney, I , eonard F . Feminoo Assistant City Solicitor BBO #162685 One School Street Beverly, MA 01915 (508) 921-1990 5 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULEO, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) 'i AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I, Walter Power, III, do depose and say as follows: 1. I am the Chairman of the Salem Planning Board. 2. I was the Chairman of the Salem Planning Board at all times relevant to this matter. 3. Lauri A. Panneton had filed a Form A Application for Endorsement of Plan Believed Not to Require Approval with the Salem Planning Board. 4. The Salem Planning Board reviewed the plan and made a site visit of Glenn Avenue and voted against endorsing said plan. - 5. The Salem Planning Board voted against endorsing said plan because the lot abutted the traveled way eighty feet and not one hundred feet as is required. Signed under the pains and penalties of perjury this 15th day of February, 1994. • � j Walter Power, III i I I i i I i I i 2 • i �A rt COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B I LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT i I, Leo F. Tremblay, do depose and say as follows: 1. I am employed as the Director of Public Property for the City of Salem. 2. As Director of Public Property; 'I am the chief zoning enforcement officer for the City of Salem Code of Ordinances. 3. As Director of Public Property, I am also required to advise the Board of Appeals on zoning matters before it. 4. Greenlawn Avenue and Glenn Avenue in the City of Salem are located in zone R-1. I .l 5. Lots in an R-1 zone must have a minimum frontage on a street of 100 feet. Table 1 entitled Residential Density Regulations states that the minimum lot width in an R-1 zone is 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where a plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. A copy of these zoning regulations are attached hereto. Signed under the pains and penalties of perjury this 15th day of February, 1994. Leo E. Tremblay 2 CERTIFICATE OF SERVICE I, Leonard F. Femino, hereby certify under the pains and penalties of perjury that on this 16th day of February, 1994, I served an original and a copy of the within Defendants' Memorandum in Opposition to Plaintiffs Motion For Summary Judgment and two Affidavits by mailing, postage prepaid, to plaintiffs attorney, James M. Fleming, Esquire, 47 Buffum Street, Salem, Massachusetts 01970. onard F. Femino I ' i I I I I I I 6 a COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT INTRODUCTION The Plaintiff, Lauri A. Panneton (hereinafter "Petitioner"), filed a Form A Application (hereinafter "plan") with the Defendant Salem Planning Board (hereinafter the "Board") pursuant to M.G.L. Chapter 41, Section 81P. Petitioner seeks to combine three lots (hereinafter the "Lot") and build a single-family dwelling on same. The lot abuts Glenn Avenue in Salem, Massachusetts. On or about September 21, 1993 the Board voted against endorsing Petitioner's plan and it determined that the plan requires approval under the subdivision control law. Petitioner filed her appeal pursuant to M.G.L. Chapter 41, Section 81BB and subsequently filed her Motion for Summary Judgm nt. The Board files this Opposition to Petitioner's Motion and two Affidavits in Opposition; one by the Salem Building Inspector and the other by the Chairman of the Board. The Board seeks Summary Judgment in its favor pursuant to M.R.C.P. 56(c). ISSUE Whether the Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. ARGUMENT The Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. M.G.L. Chapter 41, Section 81P states, in part, the following: Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T, and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words "approval under the subdivision control law not required" or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan shows a subdivision. M.G.L. Chapter 41, Section 814, subparagraph 12 defines subdivision and includes in same a definition of what is not considered a subdivision. It states that a division of a tract of land into two or more lots shall not be deemed a subdivision if, at the time it was made, every lot had frontage on one of three types of ways. Consequently, if the Petitioner submitted a plan with frontage on a way as defined in Section 81L, subparagraph 12, the plan would not have shown a subdivision and the 2 i endorsement would have been made by the Board. The Board was compelled to vote against endorsing the plan because the plan did not have adequate frontage on the way.l The law supports the Board's decision. Massachusetts case law clearly states that each lot on an ANR plan must have adequate frontage on a way. In Gifford v. Planning Board of Nantucket 376 Mass. 801, 807 (1978) the Supreme Judicial Court stated that: Where our statute relieves certain divisions of land of regulation and approval by a planning board ("approval . . . not required"), it is because the vital access is reasonably guaranteed in another manner. The guaranty is expressed in Sections 81L and 81P of the statute in terms of a requirement of sufficient frontage for each lot on a public way. In the ordinary case, lots having such frontage are fully accessible . . . Conversely, where the lots shown on a plan borrowed on a road "not in any practical sense . . . in existence as a way", and thus incapable of affording suitable access to the lots we insisted that the relevant plan was a subdivision under the then current law. The holding in Gifford has been subsequently reaffirmed and expanded in Hrenchuk v. Planning Board of Walpole 8 Mass. App. Ct. 949 (1979), McCarthy v. Planning Board of Edgartown. 381 Mass. 86 (1980), Gallitano v. Board of Survey and Planning of Waltham. 10 Mass. App. Ct. 209 (1980), Fox v. Planning Board of Milton. ! 24 Mass. App. Ct. 572 (1987), Corcoran v. Planning Board of Sudbury 26 Mass. App. Ct. 1000 (1988) and Poulos v. Planning Board of Braintree. 413 Mass. 359 (1992). Each case stands for the proposition that a planning board may vote against endorsing an ANR Plan if vital access is not guaranteed. Petitioner's plan shows that on paper it abuts Glenn Avenue 150 feet. Petition acknowledges in her Memorandum that only 80 feet of Glenn Avenue actually exists on the ground and that the remaining frontage is on paper only. The Board examined 3 � II Glenn Avenue and confirmed that only 80 feet of Glenn Avenue actually exists on the ground. (See Affidavit of Walter Power, III.) The Petitioner's lot as shown on her plan is located in an R-1 zone as it is defined in the Salem Zoning Ordinance. The Salem Zoning Ordinance requires that the minimum lot width for Petitioner's lot is 100 feet. The minimum lot width is the same as requiring minimum lot frontage of 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where 2_plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. (emphasis added) (See Affidavit of Leo F. Tremblay.) As stated above, the Board visited the site to confirm that the traveled way measured only 80 feet and not the 100 feet as required in Article VI Section 6-1(b)(4). Consequently, the board was compelled to deny the plan in compliance with the case law set forth above. Furthermore, the Board cannot endorse the plan because "on paper" the • Petitioner's lot has 150 feet of frontage. The recent decision of the Appeals Court in Shea v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519 91993) supports the Board's action. In Shea, the Court stated that a planning board acts properly in denying an 81P endorsement for reasons related to inadequate access. The Court stated: Not only for the good of the homeowner, but also for the safety of the public, a town can insist that homes not be built on lots lacking adequate access for fire trucks and emergency vehicles. Even if the plaintiffs argument is accepted and Rockville Avenue is in legal contemplation `a way shown on a plan previously approved and endorsed in accordance 4 I , i with the subdivision control law, . . . the section on which the . _ plaintiffs lot fronts does not exist m fact. A fire truck cannot drive on a plan. A zoning by-law which requires frontage on a way shown on an approved plan must be understood, if the purpose of the by-law is not to be undermined, to require an actual way, constructed on the ground, not just a depiction of a way on a plan. p. 523. Like the Board in Shea, this Board must deny endorsing Petitioner's plan for the good of the Petitioner and the safety of the public. The Petitioner's lot abuts a way 80 feet and not the 100 feet as is required in an R-1 zoning district in the City of Salem. CONCLUSION The reasons set forth above support the position that the Board acted properly in denying to endorse the Petitioner's plan. The Board argues that pursuant to M.R.C.P. 56(c) that Summary Judgment must enter for the Board in this matter. Respectfully submitted, Defendants, By their attorney, onard F. Femino Assistant City Solicitor BBO #162685 One School Street Beverly, MA 01915 (508) 921-1990 I I 5 Q. COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CML ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I, Walter Power, III, do depose and say as follows: 1. I am the Chairman of the Salem Planning Board. 2. I was the Chairman of the Salem Planning Board at all times relevant to this matter. 3. Lauri A. Panneton had filed a Form A Application for Endorsement of Plan Believed Not to Require Approval with the Salem Planning Board. 4. The Salem Planning Board reviewed the plan and made a site visit of Glenn Avenue and voted against endorsing said plan. y 5. The Salem Planning Board voted against endorsing said plan because the lot abutted the traveled way eighty feet and not one hundred feet as is required. Signed under the pains and penalties of perjury this 15th day of February, 1994. Walter Power, III 2 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B i LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT i I, Leo F. Tremblay, do depose and say as follows: 1. I am employed as the Director of Public Property for the City of Salem. 2. As Director of Public Property, I am the chief zoning enforcement officer for the City of Salem Code of Ordinances. 3. As Director of Public Property, I am also required to advise the Board of Appeals on zoning matters before it. 4. Greenlawn Avenue and Glenn Avenue in the City of Salem are located in zone R-1. I . r i 5. Lots in an R-1 zone must have a minimum frontage on a street of 100 feet. Table 1 entitled Residential Density Regulations states that the minimum lot width in an R-1 zone is 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where a plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. A copy of these zoning regulations are attached hereto. Signed under the pains and penalties of perjury this 15th day of February, 1994. Leo E. Tremblay 2 I' CERTIFICATE OF SERVICE I I, Leonard F. Femino, hereby certify under the pains and penalties of perjury that on this 16th day of February, 1994, I served an original and a copy of the within Defendants' Memorandum in Opposition to Plaintiffs Motion For Summary Judgment and two Affidavits by mailing, postage prepaid, to plaintiffs attorney, James M. Fleming, Esquire, 47 Buffum Street, Salem, Massachusetts 01970. � O onard F. Femino I I I I I I I I 6 i COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT INTRODUCTION The Plaintiff, Lauri A. Panneton (hereinafter "Petitioner"), filed a Form A Application (hereinafter "plan") with the Defendant Salem Planning Board (hereinafter the "Board") pursuant to M.G.L. Chapter 41, Section 81P. Petitioner seeks to combine three lots (hereinafter the "Lot") and build a single-family dwelling on same. The lot abuts Glenn Avenue in Salem, Massachusetts. On or about September 21, 1993 the Board voted against endorsing Petitioner's plan and it determined that the plan requires approval under the subdivision control law. Petitioner filed her appeal pursuant to M.G.L. Chapter 41, Section 81BB and subsequently filed her Motion for Summary Judgm nt. The Board files this Opposition to Petitioner's Motion and two Affidavits in Opposition; one by the Salem Building Inspector and the other by the Chairman of the Board. The Board seeks Summary Judgment in its favor pursuant to M.R.C.P. 56(c). ISSUE Whether the Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. ARGUMENT The Board correctly voted against endorsing the plan and is correct in requiring Petitioner to petition for approval under the subdivision control law. M.G.L. Chapter 41, Section 81P states, in part, the following: Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T, and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words "approval under the subdivision control law not required" or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan shows a subdivision. M.G.L. Chapter 41, Section 814, subparagraph 12 defines subdivision and includes in same a definition of what is not considered a subdivision. It states that a division of a tract of land into two or more lots shall not be deemed a subdivision if, at the time it was made, every lot had frontage on one of three types of ways. Consequently, if the Petitioner submitted a plan with frontage on a way as defined in Section 81L, subparagraph 12, the plan would not have shown a subdivision and the 2 II i endorsement would have been made by the Board. The Board was compelled to vote against endorsing the plan because the plan did not have adequate frontage on the way. The law supports the Board's decision. Massachusetts case law clearly states that each lot on an ANR plan must have adequate frontage on a way. In Gifford v. Planning Board of Nantucket 376 Mass. 801, 807 (1978) the Supreme Judicial Court stated that: Where our statute relieves certain divisions of land of regulation and approval by a planning board ("approval . . . not required"), it is because the vital access is reasonably guaranteed in another manner. The guaranty is expressed in Sections 81L and 81P of the statute in terms of a requirement of sufficient frontage for each lot on a public way. In the ordinary case, lots having such frontage are fully accessible . . . Conversely, where the lots shown on a plan borrowed on a road "not in any practical sense . . . in existence as a way', and thus incapable of affording suitable access to the lots we insisted that the relevant plan was a subdivision under the then current law. The holding in Gifford has been subsequently reaffirmed and expanded in Hrenchuk v. Planning Board of Walpole. 8 Mass. App. Ct. 949 (1979), McCarthy v. Planning Board of Edgartown. 381 Mass. 86 (1980), Gallitano v. Board of Survey and Planning of Waltham. 10 Mass. App. Ct. 209 (1980), Fox v. Planning Board of Milton • I 24 Mass. App. Ct. 572 (1987), Corcoran v. Planning Board of Sudbury 26 Mass. App. Ct. 1000 (1988) and Poulos v. PlannipZ Board of Braintree. 413 Mass. 359 (1992). Each case stands for the proposition that a planning board may vote against endorsing an ANR Plan if vital access is not guaranteed. Petitioner's plan shows that on paper it abuts Glenn Avenue 150 feet. Petition acknowledges in her Memorandum that only 80 feet of Glenn Avenue actually exists on the ground and that the remaining frontage is on paper only. The Board examined 3 Glenn Avenue and confirmed that only 80 feet of Glenn Avenue actually exists on the ground. (See Affidavit of Walter Power, III.) The Petitioner's lot as shown on her plan is located in an R-1 zone as it is defined in the Salem Zoning Ordinance. The Salem Zoning Ordinance requires that the minimum lot width for Petitioner's lot is 100 feet. The muumum lot width is the same as requiring minimum lot frontage of 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where a plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. (emphasis added) (See Affidavit of Leo F. Tremblay.) As stated above, the Board visited the site to confirm that the traveled way measured only 80 feet and not the 100 feet as required in Article VI Section 6-1(b)(4). Consequently, the board was compelled to deny the plan in compliance with the case law set forth above. Furthermore, the Board cannot endorse the plan because "on paper" the • Petitioner's lot has 150 feet of frontage. The recent decision of the Appeals Court in Shea v. Board of Appeals of Lexington, 35 Mass. App. Ct. 519 91993) supports the Board's action. In Shea, the Court stated that a planning board acts properly in denyin an 81P endorsement for reasons related to inadequate access. The Court stated: Not only for the good of the homeowner, but also for the safety of the public, a town can insist that homes not be built on lots lacking adequate access for fire trucks and emergency vehicles. Even if the plaintiffs argument is accepted and Rockville Avenue is in legal contemplation `a way shown on a plan previously approved and endorsed in accordance 4 with the subdivision control law. . . . the section on which the plaintiffs lot fronts does not exist in fact. A fire truck cannot drive on a plan. A zoning by-law which requires frontage on a way shown on an approved plan must be understood, if the purpose of the by-law is not to be undermined, to require an actual way, constructed on the ground, not just a depiction of a way on a plan. p. 523. Like the Board in Shea this Board must deny endorsing Petitioner's plan for the good of the Petitioner and the safety of the public. The Petitioner's lot abuts a way 80 feet and not the 100 feet as is required in an R-1 zoning district in the City of Salem. CONCLUSION I The reasons set forth above support the position that the Board acted properly in denying to endorse the Petitioner's plan. The Board argues that pursuant to M.R.C.P. 56(c) that Summary Judgment must enter for the Board in this matter. Respectfully submitted, Defendants, By their attorney, I eonard F. Femino Assistant City Solicitor BBO #162685 One School Street Beverly, MA 01915 (508) 921-1990 5 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CML ACTION NO. 93-2377B LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULEO, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I, Walter Power, III, do depose and say as follows: 1. I am the Chairman of the Salem Planning Board. 2. I was the Chairman of the Salem Planning Board at all times relevant to this matter. 3. Lauri A. Panneton had filed a Form A Application for Endorsement of Plan Believed Not to Require Approval with the Salem Planning Board. 4. The Salem Planning Board reviewed the plan and made a site visit of Glenn Avenue and voted against endorsing said plan. 5. The Salem Planning Board voted against endorsing said plan because the lot abutted the traveled way eighty feet and not one hundred feet as is required. Signed under the pains and penalties of perjury this 15th -day of February, 1994. Walter Power, III 2 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. SUPERIOR COURT CIVIL ACTION NO. 93-2377B i LAURI A. PANNETON, ) Plaintiff ) V. ) WALTER B. POWER, III, DEBRA J. ) HILBERT, KONSTANTINOS PRENTAKIS, ) DAVID M. HART, ALBERT C. HILL, ) CHARLES M. PULED, LINDA J. VAUGHN, ) CARTER L. VINSON AND JOHN C. ) MOUSTAKIS, as they are the members ) of the Planning Board of the City ) of Salem, ) Defendants ) AFFIDAVIT IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT i i I, Leo F. Tremblay, do depose and say as follows: 1. I am employed as the Director of Public Property for the City of Salem. 2. As Director of Public Property, I am the chief zoning enforcement officer for the City of Salem Code of Ordinances. 3. As Director of Public Property, I am also required to advise the Board of Appeals on zoning matters before it. 4. Greenlawn Avenue and Glenn Avenue in the City of Salem are located in zone R-1. 5. Lots in an R-1 zone must have a *minimum frontage on a street of 100 feet. i Table 1 entitled Residential Density Regulations states that the minimum lot width in an R-1 zone is 100 feet. Article VI Section 6-1 (b) (4) defines lot width as follows: The minimum lot width required shall be measured at the rear of the front yard depth and on a line parallel to the right-of-way line where a plan of the right-of-way is on file with the Registry of Deeds or, in the absence of such a plan, from a line twenty-five (25) feet from and parallel with the center line of the traveled way. A copy of these zoning regulations are attached hereto. Signed under the pains and penalties of perjury this 15th day of February, 1994. �a Leo E. Tremblay 2 .I � CERTIFICATE OF SERVICE I I, Leonard F. Femino, hereby certify under the pains and penalties of perjury I that on this 16th day of February, 1994, I served an original and a copy of the within Defendants' Memorandum in Opposition to Plaintiffs Motion For Summary Judgment and two Affidavits by mailing, postage prepaid, to plaintiffs attorney, James M. Fleming, Esquire, 47 Buffum Street, Salem, Massachusetts 01970. tk� O onard F. Femino I i I I I I I I i I I I I I I I 6 I N/F N/F SUNBURST FRUIT JUICES INC. s DONALD S EMMERTON o Q h t o c i LOCUS I N09.5g,36 W 0 00 I n 15 6feeJ7la's - - - . ` e d Pre Qn ()g.-72: I — — d LOT 146 LOT '145 LOT 144 'd- LOCUS MAP LOT 11 SCALE: 1" =800' A=26,446 S.F. w N/F 00 N PIHEASANT HILL REALTY TRUST o o) 00 n ;n � �j 00 Z N/F i' JOSEPH A FINOCCHIO W NOTE: O BASED UPON CERTIFICATION OF THE OWNER THE EXISTING BITUMINOUS PA�TEMENT IS TO BE EXTENDED TO 100' WITH A BITUMINOUS BERM ALONG THE NORTHERLY EDGE. 116.70' S06•10'15.,W ,APPROVAL UNDER THE SUBDIVESION 85.96' - � GLEN� — — 64'04' S00'03'�45"E — — CONTROL LAW NOT REQUIRED. r (- - - _ — � AVE I PROPOSED I I SALEM PLANNING BOARD I BIT EXISTING I PAVEMENTI BIT. i (FORMERLY GLENN AVE . I PAVEMENT I - GREENLAWN AC 1 W 1 � � I CHAIRMAN7/ l � DATE q� I � � 1 � � 1 l THE INTENT OF THIS PLAN IS TO COMBINE LOTS 144, 145, & 146 SHOWN 1 ON PLAN 45 OF PLAN BOOK 41 INTO ONE PARCEL OF LAND HAVING AN SUBDIVISION PLAN 0 F LAND I I AREA OF 26,446 SQUARE FEET. OF I HEREBY CERTIFY THAT THE PROPERTY LINES SHOWN ARE THE LINES GREENLAWN AVE . DIVIDING EXISTING OWNERSHIPS AND THE LINES OF STREETS AND WAYS IN RESERVED FOR REGISTRY USE ONLY SHOWN ARE THOSE OF PUBLIC OR PRIVATE STREETS AND WAYS ALREADY ESTABLISHED AND NO NEW LINES FOR THE DIVISION OF EXISTING OWNERSHIPS OR FOR NEW WAYS ARE SHOWN. SALEM , MA * I HEREBY CERTIFY THAT THIS PLAN HAS BEEN PREPARED IN CONFORMITY PREPARED BY: P.J.F. AND ASSOCIATES WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS OF THE 11 GLEASON STREET COMMONWEALTH OF MASSACHUSETTS. MEDFORD, MA. 02155 (617) 395-7662 PAM M 0' 10' 20' 30' 40' �. f REVREV.. JUNE JULY 1,24, 1994 1994 PLAN REFERENCE: � , �a „ ,. �; - _ SCALE. 1" =20' -g DATE: JULY 27, 1993 FILE No. 3050 PLAN BOOK 41 PLAN 45 PAUL J. FINOCCHIO P.L.S. No.36115 DATE FIELD PLOT DESIGN DRAFT CALC. CHECK JD PF JD JD JD PF I N/F N/F SUNBURST FRUIT JUICES INC. -� DONALD S EMMERTON z Q o � c �0cus I � N09 5$ 36 150.00 I reen�a� 109 � LOT 146 LOT 145 LOT 14401. 5 ' LOCUS MAP LOT 1 SCALE: 1" =800' A=26,446 S.F. w N/F N 00 I PHEASANT HILL REALTY TRUST o 1 0) 00� z N/F q JOSEPH A FINOCCHIO NOTE: , BASED UPON ti CERTIFICATION OF 'THE OWNER . THE EXI3TIN BITUMINOUS PAVEMENT IS TO f. .�BE 'BE 1010' WIT'H A BITUMINOUS BERM ALONG THA NORTHEIRLY EDGE. 116.70' � � 1 S06*10'15"WAPPROVAL UNDER THE SUBDIVISION S00'03'45"E I GLENN 64.04' — — CONTROL LAW NOT REQUIRED. ,- - _. �' _ 85.96' AVE , , T- I PROPOSED I EXITING I SALEM PLANNING BOARD IT. I I PAVEMENT I BIT. (FORMERLY GLENN AVE . ) L PAVEMENT i - �- - - ' GREENLAWN AVE . 1 � 1 � � ' CHAIRMAN DATE 1 � � 1 � 1 � � 1 � 1 1 I THE INTENT OF THIS PLAN IS TO COMBINE LOTS 144, 145, & 146 SHOWN I ON PLAN 45 OF PLAN BOOK 41 INTO ONE PARCEL OF LAND HAVING AN SUBDIVISION P OF L AREA OF 26,446 SQUARE FEET. OF � I HEREBY CERTIFY THAT THE PROPERTY LINES SHOWN ARE THE LINES GREENLAWN AVE . DIVIDING EXISTING OWNERSHIPS AND THE LINES OF STREETS AND WAYS IN RESERVED FOR REGISTRY USE ONLY SHOWN ARE THOSE OF PUBLIC OR PRIVATE STREETS AND WAYS ALREADY ESTABLISHED AND NO NEW LINES FOR THE DIVISION OF EXISTING MA OWNERSHIPS OR FOR NEW WAYS ARE SHOWN. SALEM , 0 I HEREBY CERTIFY THAT THIS PLAN HAS BEEN PREPARED IN CONFORMITY PREPARED BY: P.J.F. AND ASSOCIATES WITH THE RULES AND REGULATIONS OF THE REGISTERS OF DEEDS OF THE 11 GLEASON STREET COMMONWEALTH OF MASSACHUSETTS. MEDFORD, MA. 02155 (617) 395-7662 P�tx ,D 0' 10' 20' 30' 40' RNOMM10 �� REV. JULY 1, 1994 SCALE: 1" =20' PLAN REFERENCE: �d ` REV. JUNE 24, 1994 PLAN BOOK 41 PLAN 45 DATE: JULY 27, 1993 FILE No. 3050 PAUL J. FINOCCHIO P.L.S. No.36115 DATE FIELD PLOT DESIGN DRAFT CALL. CHECK [— JD/PF JD JD JD PF