Malaguti v. Planning Board

The plaintiffs submitted a plan to the defendant for the division of a parcel of land into six building lots for single family residences, requesting endorsement pursuant to G. L. c. 41, § 81P, that the plan did not require approval under the Subdivision Control Law. The defendant declined to grant the endorsement because the proposed lots did not have frontage on an “adequate way.” The Superior Court ordered judgment dismissing a bill in equity brought by the plaintiffs, from which action the plaintiffs have appealed. The record indicates that the trial judge did not err in finding that not every lot had frontage on a public way, that the way in question was inadequate for vehicular traffic (see Rettig v. Planning Bd. of Rowley, 332 Mass. 476, 481 [1955]; Stoneham v. Savelo, 341 Mass. 456, 458 [1960]), or in ruling that the plan submitted is a plan of a “subdivision” within G. L. c. 41, § 81L. The court, therefore, correctly ruled that the defendant neither exceeded its authority nor acted in bad faith in refusing to endorse the plan (see G. L. c. 41, §§ 81M and 81R), because, as a plan showing a “subdivision,” the plan required the [798] defendant’s approval under G. L. c. 41, §§ 810 and 81U. See G. L. c. 41, § 81P. Absent a showing that the trial judge’s findings were lacking in evidential support or plainly wrong, the decision of the lower court will not be disturbed. See Caruso v. Planning Bd. of Revere, 354 Mass. 569, 571 (1968), and United Reis Homes, Inc. v. Planning Bd. of Natick, 359 Mass. 621, 624 (1971). The plaintiff’s allegation that the defendant failed to provide detailed notice of the reasons for the refusal of the endorsement pursuant to G. L. c. 41, § 81U is without merit since that section does not apply where, as here, the plaintiffs attempted to obtain an endorsement that such approval was not required. G. L. c. 41, § 81P. Albert Auburn for the plaintiffs. Leo J. Hession, Town Counsel, for the defendant. Judgment affirmed.