Massachusetts Real Estate Lawyer Blog
In a recently issued opinion, the Massachusetts Land Court examined the meaning of “public way” as used in a provision of the Town of Tisbury’s Zoning By-laws. The court’s use of the definition stated in Fenn v. Town of Middleborough (7 Mass. App. Ct. 80 (1979)) may provide context for other zoning laws in the future.
In Askew v. Seidman (Mass. Land Ct. (Sept. 4, 2015)), the landowner appealed a decision of the Planning Board of the Town of Tisbury denying approval of a plan to divide her property into two buildable lots. Pursuant to the relevant By-Laws, when a lot fronting on a public way has sufficient additional frontage to provide for an access way to the rear for an additional lot, the Planning Board may approve a plan dividing the property into front and rear lots, subject to specific restrictions.
At issue in the case was whether a road shown on a subdivision plan (Roger’s Farm Road) constituted a “public way,” such that the plaintiff is entitled to an endorsement of her plan to divide the property fronting Roger’s Farm Road into two lots under the Deep Lot Provisions of the town’s By-Laws.
Since the term “public way” is undefined by the By-Laws, the Land Court examined the statutory construction and the intent of the drafters in concluding that the term has the usual and accepted meaning as stated by the Massachusetts Appeals Court in Fenn. Fenn provides that a way in existence is only a “public way” if it has become public in character in one of three ways: (1) a laying out by public authority in the manner prescribed by statute; (2) prescription; and (3) prior to 1846, a dedication by the owner to public use, permanent and unequivocal, coupled with an express or implied acceptance by the public.
In Askew, the only method at issue was whether Roger’s Farm Road had become a public way by prescription. Under Massachusetts law, the creation of a public way by adverse use depends on a showing of actual public use, general, uninterrupted, and continued for twenty years. The plaintiff has the burden of proof to demonstrate that a way has become public by prescription. The court, however, held that the sole evidence submitted by the plaintiff, an affidavit of the previous owner, was insufficient to meet that burden. Specifically, the court found that the affidavit only demonstrated sporadic, unverified use by the public, it did not specify with what frequency the affiant visited the property and made his observations, and it did not make any distinction between the uses of the abutting property owners and the general public. In addition, the court noted that the presence of a fire hydrant and public water line is not sufficient evidence to prove that a way is public, as opposed to private. The Land Court thus affirmed the decision of the Planning Board.
At Pulgini & Norton, our well-qualified real estate attorneys provide legal representation for clients in a variety of Massachusetts property law issues, including land use and zoning matters, easements, and other land transactions. To discuss your real estate needs with an experienced attorney, call (781) 843-2200 or contact us online.
More Blog Posts:
Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015
Massachusetts Zoning Laws and Construction Permits, Massachusetts Real Estate Lawyer Blog, published May 14, 2015