Posted by: Patricia Salkin | November 1, 2019

MA Appeals Court Vacates Determination that Issue Preclusion Applied to “Approval Not Required” Plans Involving an Alleged Public Way

This post was authored by Matthew Loeser, Esq.

In 2015, Richard Barry filed with the Planning Board of Belchertown an application seeking an approval not required (“ANR”) plans for the division of his property pursuant to the subdivision control law, G. L. c. 41, §§ 81L and 81P. The Board denied the application, holding that the portion of Munsell Street fronting one of the lots, lot B, did not meet the criteria for frontage contained in G. L. c. 41, § 81L. The Superior Court granted summary judgment to the applicant. The judge reasoned that the 1987 judgment of the Superior Court established that Munsell Street was a public way and ordered the board to endorse the plan as “Approval under Subdivision Control Law not required” pursuant to the doctrine of issue preclusion.

The court found on appeal that although there was a final judgment against the town in 1987, the issue in this case was not identical to the issue that was resolved against the town in 1987, as the material facts have changed since that decision. Specifically, in 1987, the court determined that Munsell Street west of the locus constituted a way shown on an approved subdivision plan, thereby satisfying § 81L clause b. In 1990, however, the town accepted only a portion of Munsell Street, not inclusive of the frontage on lot B, as a public way. Also in 1990, the Planning Board approved a new subdivision plan involving Munsell Street, the Oasis Drive subdivision, which incorporated the portion of Munsell Street fronting lot B. Accordingly, the subdivision plan approved in 1990 explicitly changed the land use of the portion of Munsell Street fronting lot B, as it was then designated as “open space.” Additionally, the prior judgment involved litigants other than the those in this case. The court further found that the application of issue preclusion would undermine the public interest in ensuring that new lots had access to ways that were safe and convenient for travel. For the aforementioned reasons, the judgment in favor of the applicant was vacated.

Barry v Planning Board of Belchertown, 2019 WL 5559091 (MA App. 10/29/2019)


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