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18-P-723                                             Appeals Court

 RICHARD G. BARRY & another1 vs. PLANNING BOARD OF BELCHERTOWN
                           & another.2


                             No. 18-P-723.

         Hampshire.        March 1, 2019. - October 29, 2019.

           Present:   Maldonado, McDonough, & Englander, JJ.


Subdivision Control, Access ways, Approval not required. Way,
     Public: subdivision control, Public: what constitutes.
     Collateral Estoppel. Judgment, Preclusive effect.



     Civil action commenced in the Superior Court Department on
March 13, 2015.

     The case was heard by John S. Ferrara, J., on motions for
summary judgment.


     Katherine D. Laughman for the defendants.
     Ryan K. O'Hara for the plaintiffs.
     Michael Pill, for W.D. Cowls, Inc., amicus curiae,
submitted a brief.




    1   Marcel A. Nunes.

    2   Town of Belchertown.
                                                                     2


     ENGLANDER, J.     This case requires us to examine the law

regarding so-called "approval not required" (ANR) plans for the

division of real estate pursuant to the subdivision control law,

G. L. c. 41, §§ 81L and 81P.    In particular, we consider whether

a 1987 judgment involving the same Belchertown (town) way at

issue in this case is entitled to collateral estoppel3 effect

offensively, against the town, in connection with a new ANR plan

filed for different property by different applicants, almost

thirty years later.    The motion judge concluded that the 1987

judgment had established that the way -- Munsell Street -- was a

"public way," and that, accordingly, the plaintiffs were

entitled to ANR approval of their proposed plan, which sought

approval for two lots with frontage on Munsell Street.     We

vacate the judgment, because neither the 1987 judgment nor the

evidence of record establish that the portion of Munsell Street

at issue is a public way, and because the 1987 judgment -- which

required the ANR endorsement of a plan abutting a different

portion of Munsell Street -- is not entitled to preclusive

effect in this case.

     Background.   We recite the undisputed facts from the

parties' summary judgment materials and the exhibits attached


     3 We use the term "collateral estoppel" interchangeably with
the term "issue preclusion," which is used in the Restatement
(Second) of Judgments §§ 27-29 (1982). We mean no distinction
between the two terms.
                                                                     3


thereto.   Munsell Street has existed on the ground since at

least the 1800s, although the condition of the way has varied

through the years, and Munsell Street's condition currently

varies greatly along its length.    The street runs westerly, from

its beginning at an intersection with Gold Street.    In 1990, the

town formally accepted the first 2,730 feet of Munsell Street as

a public way.   Munsell Street is improved up to a point just

short of the end of that acceptance.    Beyond that point the road

becomes a gravel road, which "dwindles" as one moves further

west.    The motion judge stated that "[t]here is no question

that, at some point, Munsell Street becomes impassable to most

vehicles, after which it is no more than a remote trail that may

meet up with an old path in neighboring Pelham."

     This case involves the portion of Munsell Street beyond the

termination point of the formal acceptance.    On January 23,

2015, Richard G. Barry4 (applicant) filed with the planning board

of Belchertown (board) an application seeking an ANR endorsement

pursuant to G. L. c. 41, § 81P.    The accompanying plan showed

two lots, lots A and B, each with 140 feet of frontage on

Munsell Street.5   Lot A fronts on the accepted portion of Munsell


     4 The application reflects that Barry is the applicant, and
that the owner of the locus is Marcel A. Nunes.

     5 The application refers to the locus as fronting Munsell
Road but the accompanying plan, the judge, and most other
references refer to the way as Munsell Street.
                                                                    4


Street.   Lot B does not; its eastern boundary coincides with the

end of the accepted way, so that the entirety of lot B fronts on

a portion of Munsell Street that has not been formally accepted.

    The board denied the application on the ground that the

portion of Munsell Street fronting lot B did not meet the

criteria for frontage contained in G. L. c. 41, § 81L.     The

board further concluded that lot B included land, specifically

the portion of Munsell Street that fronts lot B, that had been

required to be dedicated to open space as a condition of

approval of the neighboring Oasis Drive subdivision.    The

board's decision also incorporated the opinion of town counsel

noting that the portion of Munsell Street fronting lot B "is

simply an old dirt/gravel path that is rutted and only passable

by four-wheel drive vehicles," and "[t]he Planning Board would

therefore be justified in determining that the way does not

contain adequate width grade or construction to provide access

for new residential development."

    On cross motions for summary judgment, a Superior Court

judge granted summary judgment to the applicant.   The judge

reasoned that the 1987 judgment of the Superior Court

established that Munsell Street is a public way and, applying

principles of issue preclusion, ordered the board to endorse the

plan as "Approval under Subdivision Control Law not required."

The judge also concluded that because Munsell Street was a
                                                                    5


public way, it could not have been transformed into "open space"

by a condition imposed during subdivision approval.    The judge

accordingly ordered the entry of a declaratory judgment that the

full length of Munsell Street is a public way.    The town

appeals.

     Discussion.    The focus of the applicant's summary judgment

motion was not that Munsell Street in front of lot B actually

meets the § 81L criteria for adequate frontage, but rather that

the board is collaterally estopped from denying that Munsell

Street meets the criteria of § 81L.    The principal question

before us, therefore, is whether the 1987 judgment precludes the

town from refusing to grant ANR approval for lots fronting on

the applicable portion of Munsell Street.   Before diving into

the details of the 1987 litigation, and the other relevant

history of property development along Munsell Street, it will be

helpful to have the legal framework in mind.6

     A.    Legal principles applicable to ANR endorsements.     A

principal purpose of the subdivision control law is to ensure

that all newly created lots have adequate access "by ways that




     6 We review the motion judge's decision on summary judgment
de novo. Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018).
Where, as here, both parties have moved for summary judgment, we
view the evidence in the light most favorable to the party
against whom judgment has entered, to determine whether all
material facts have been established and the prevailing party is
entitled to judgment as a matter of law. Id.
                                                                    6


will be safe and convenient for travel," G. L. c. 41, § 81M,

because residents' "safety, convenience, and welfare depend

critically on that factor."    Palitz v. Zoning Bd. of Appeals of

Tisbury, 470 Mass. 795, 803 (2015), quoting Gifford v. Planning

Bd. of Nantucket, 376 Mass. 801, 807 (1978).    To that end, c. 41

requires that any plan showing a "subdivision" of property must

be approved by the local planning board.    G. L. c. 41, §§ 81L,

81O.    A plan does not require planning board approval, however,

if it does not show a "subdivision"; in that event the plan is

entitled to an endorsement "approval under the subdivision

control law not required," frequently referred to as an "ANR"

endorsement.   G. L. c. 41, § 81P.   See Ninety Six, LLC v.

Wareham Fire Dist., 92 Mass. App. Ct. 750, 753 (2018).     See also

Palitz, supra at 796.

       The statutory term "subdivision" is defined in § 81L in the

negative -- by setting forth what is not a subdivision.    Under

§ 81L, a plan does not show a "subdivision" if after division,

every proposed lot (1) has the required frontage (2) on a way

that meets any one of three criteria, each of which is relevant

to our analysis herein:    (a) the way is "a public way" or "a way

which the [town clerk] certifies is maintained and used as a

public way" (clause a); or (b) the way is "shown on a plan

theretofore approved and endorsed in accordance with the

subdivision control law" (clause b); or (c) the way was "in
                                                                    7


existence when the subdivision control law became effective

. . . having, in the opinion of the planning board, sufficient

width, suitable grades and adequate construction to provide for

the needs of vehicular traffic . . . and for the installation of

municipal services to serve such land and the buildings . . .

thereon" (clause c).   G. L. c. 41, § 81L.    We have said before

that "[w]here 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."    Palitz, 470 Mass. at 803,

quoting Gifford, 376 Mass. at 807.

    As indicated, the decision at issue was based upon the

judge's conclusion that Munsell Street was previously

adjudicated to be a public way, and thus satisfied clause a of

§ 81L.   There are specific legal criteria for establishing a

"public way," however, as not every way open to the public is a

"public way."   W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct.

18, 19 (1979) ("[T]here can be private ways, which are defined

ways for travel, not laid out by public authority or dedicated

to public use, that are wholly the subject of private ownership,

which are open to public use . . . " [quotations and citation

omitted]).   Under our cases there are three means by which a way

may qualify as a public way:     "(1) a laying out by public

authority in the manner prescribed by statute . . . ; (2)
                                                                     8


prescription; and (3) prior to 1846, a dedication by the owner

to public use . . . coupled with . . . acceptance by the

public."   Moncy v. Planning Bd. of Scituate, 50 Mass. App. Ct.

715, 716 (2001), quoting Fenn v. Middleborough, 7 Mass. App. Ct.

80, 83-84 (1979).    "If a road has never been dedicated and

accepted, laid out by public authority, or established by

prescription, such a road is private."    W.D. Cowls, Inc., supra.

    B.     The Pharmer litigation and development on Munsell

Street.    It is not disputed that the portion of Munsell Street

beginning at Gold Road and ending at the westerly end of lot A

is a public way, lawfully accepted by the town in 1990.     The

portion beyond lot A (including the frontage for lot B),

however, was not formally accepted in 1990, and stands on

different footing.    The applicants contended below that the

board is bound by factual and legal issues decided in Pharmer

vs. Belchertown, Superior Ct., No. 82-098 (July 21, 1987), and

is estopped from denying that Munsell Street satisfies the

requirements of § 81L.    The applicant also points to a 1975 Land

Court confirmation proceeding (without registration) wherein the

confirmed plan identified Munsell Street as a public way.      For

its part, the town contends that issue preclusion is

inappropriate, at least in part based upon changed circumstances

arising from the 2007 Oasis Drive subdivision approval --

because the Oasis Drive approval was conditioned upon the
                                                                     9


portion of Munsell Street west of the accepted way (including

the portion fronting lot B) being incorporated into that

subdivision's open space.   We briefly summarize the 1987 Pharmer

litigation, the 1975 Land Court proceeding, and the Oasis Drive

subdivision history.

    1.   The 1987 Pharmer litigation.    In 1982, William Pharmer,

III, sought ANR approval for property he owned on the south

side of Munsell Street, well west of the portion that in 1990

was accepted by the town.    At that time Pharmer also owned

the locus at issue in the instant litigation, as well as

other property in the area.    The board declined to grant ANR

approval, on the ground that Munsell Street did not meet the

requirements of G. L. c. 41, § 81L.     Pharmer's appeal to the

Superior Court was referred to a special master, who held

hearings and issued findings of fact.     The special master's

findings noted that the board previously had approved several

ANR plans for property fronting on Munsell Street.      He also

noted that Munsell Street was identified as "public" on a

plan confirmed in the Land Court in 1975 and recorded in the

Hampshire County Registry of Deeds.     Based upon these prior

plans, the special master concluded that "Munsell Street is a

way shown on plans heretofore approved and endorsed by the

planning board in accordance with the town's subdivision

control law."   In other words, the special master concluded
                                                                 10


that Munsell Street qualified under clause b of the

definition of "subdivision" set forth in c. 41, § 81L.

Although the special master made some findings that related

to whether Munsell Street was a public way, the decision did

not conclude that Munsell Street was a public way.

     The special master recommended that the court order the

ANR endorsement.     A judge of the Superior Court confirmed the

special master's decision.     The Town initiated but did not

complete an appeal from that judgment.7

     2.    The 1975 registered plan.    As noted, the special

master also found that in 1975, the then owner of the

property at issue in Pharmer had filed a petition in the Land

Court for confirmation of the title and boundaries of his

land.     The plan accompanying the 1975 petition identified

Munsell Street as a public way.       The title and boundaries

were confirmed in the Land Court and the plan was recorded on

February 22, 1980.     The parties agree that the town had

notice of that proceeding but did not participate in it.

     3.    Oasis Drive subdivision.    In 2007, the board

approved a subdivision plan for Oasis Drive, which plan showed

seventeen lots on a cul-de-sac to be created off of the south

side of the portion of Munsell Street that had been accepted


     7 Although the plan received an ANR endorsement, the
subdivision was not developed.
                                                                    11


by the town in 1990.     Much of the abutting property was then

owned or controlled by the Oasis Drive applicant, Peter S.

Galuszka.     As a condition for approval, the board required

that the Oasis Drive applicant revise the boundaries on the

plan to include within the subdivision's dedicated open space

"the entire discontinued right-of-way of Munsell Street,"

while "granting rights-of-way to W.D. Cowls, Inc. and other

property owners to the [w]est of the end of Munsell Street."8

The area designated as "open space" includes the portion of

Munsell Street that fronts on lot B of the plan at issue.

    C.   Applicability of collateral estoppel.     Turning to the

facts at bar, our review of the Pharmer findings reveals that

the special master did not conclude that Munsell Street is a

public way.     Rather, the special master concluded that Munsell

Street "is a way shown on plans heretofore approved and endorsed

by the planning board," thereby satisfying clause b of § 81L,

not clause a.    Moreover, the record does not reflect that

Munsell Street west of the portion accepted in 1990 actually

qualifies as a public way; there was no evidence that the

western portion (1) was ever laid out by a public authority in a




    8  Although the planning board's condition used the term
"discontinued" to describe this portion of Munsell Street, there
is no evidence of any formal discontinuance of a public way by
the town. As noted infra, there is no evidence of acceptance of
this portion as a public way, either.
                                                                    12


manner prescribed by statute, or (2) prior to 1846, was

dedicated by its owner to public use where that dedication was

accepted by the public.9    See Moncy, 50 Mass. App. Ct. at 716.

The applicant makes no argument to the contrary and, in fact,

conceded at oral argument that the judge's rationale for

concluding that Munsell Street is a public way was faulty.

     While the applicant failed to show that Munsell Street is a

public way, the question remains whether the finding in Pharmer

that Munsell Street is a way shown on an approved subdivision

plan under § 81L clause b is entitled to collateral estoppel

effect in this case.   At the outset, we note that the conclusion

in Pharmer was incorrect:    Munsell Street did not qualify under

clause b as a way "theretofore approved . . . [under] the

subdivision control law."    G. L. c. 41, § 81L.   While Munsell

Street had supplied the frontage for previously approved ANR

plans, an ANR endorsement "is not regarded as an 'approval' as

that term is used in the Subdivision Control Law."    Cassani v.

Planning Bd. of Hull, 1 Mass. App. Ct. 451, 454 (1973).     This is

because by definition an ANR plan is not an approved subdivision

plan; to the contrary, planning board "approval" is "not

required" for such plans.    Rather, to qualify as an "approved"


     9 On appeal the applicant argues, for the first time, that
the special master's findings compel the conclusion that Munsell
Street has become a public way by prescription. As we explain
infra, the record does not justify such a conclusion.
                                                                    13


way under § 81L clause b the way must have been actually

approved by the planning board, after review of the plan under

the subdivision control law.    Here there is no contention that

the width, grades, and construction of the portion of Munsell

Street at issue had ever been actually reviewed and approved by

the board.

     The fact that the judge's conclusion was wrong in 1987,

however, does not mean that it cannot give rise to collateral

estoppel.    One of the foundations of collateral estoppel is the

desire for finality, to prevent what otherwise could be unfair

and costly relitigation of issues already decided.    Accordingly,

issue preclusion generally applies even to facts or rights that

may have been determined in error.    Fidler v. E.M. Parker Co.,

394 Mass. 534, 543-544 (1985).10   We nevertheless conclude that

in the circumstances here, issue preclusion does not apply.

     Under the common formulation of collateral estoppel, a

party is precluded from relitigating an issue adjudicated in a

prior proceeding where "(1) there was a final judgment on the

merits in the prior adjudication; (2) the party against whom

preclusion is asserted was a party (or in privity with a party)

to the prior adjudication; and (3) the issue in the prior




     10A contrary conclusion -- allowing a party to contest
collateral estoppel by arguing that the earlier judgment was in
error -- would be fundamentally at odds with the doctrine.
                                                                    14


adjudication was identical to the issue in the current

adjudication."   Tuper v. North Adams Ambulance Serv., Inc., 428

Mass. 132, 134 (1998).    "Additionally, the issue decided in the

prior adjudication must have been essential to the earlier

judgment."   Id. at 134-135.

    Here the plaintiffs seek to employ collateral estoppel

offensively, to preclude the town from asserting a defense even

though the plaintiffs were not parties to the 1987 litigation.

"'[T]he offensive use of collateral estoppel is a generally

accepted practice in American courts,' . . . and occurs when a

plaintiff seeks to prevent a defendant from litigating issues

which the defendant has previously litigated unsuccessfully in

an action against another party."    Pierce v. Morrison Mahoney

LLP, 452 Mass. 718, 730 (2008), quoting Bar Counsel v. Board of

Bar Overseers, 420 Mass. 6, 9 (1995).     While offensive

collateral estoppel is a "generally accepted practice," the

court in Pierce stated that courts should perform a careful

evaluation of the circumstances of the prior litigation before

invoking the doctrine, to ensure that it is being fairly applied

in the circumstances.    Pierce, supra.   Courts accordingly have

"wide discretion" in determining whether the application of

offensive collateral estoppel "would be fair to the defendant."

Id. at 731, quoting Bar Counsel, supra at 11.    See also
                                                                    15


Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 61-

62 (2014).

     The town should not be precluded here.    Although there was

a final judgment against the town in 1987, the issue in this

case is not identical to the issue that was resolved against the

town in 1987, because the material facts have changed since that

decision.    In 1987, the court determined in the Pharmer

litigation (albeit incorrectly) that Munsell Street west of the

locus constituted a way shown on an approved subdivision plan,

thereby satisfying § 81L clause b.    But three years later, in

1990, the town accepted only a portion of Munsell Street, not

including the frontage on lot B, as a public way.    That same

year 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.       The

1990 approved subdivision plan explicitly changed the land use

of the portion of Munsell Street fronting lot B; it was

designated as "open space."11




     11We recognize that the open space designation was subject
to the rights of abutters to the west to access their properties
via Munsell Street. Nevertheless, the 1990 open space
designation is a new fact -- a condition on an approved
subdivision plan -- that would be material to any subsequent ANR
application seeking to employ that portion of Munsell Street as
frontage.
                                                                     16


     It is well established that a previously adjudicated issue

is not "identical" for purposes of collateral estoppel, where

the facts material to the subsequent litigation have changed

since the prior adjudication.    See Restatement (Second) of

Judgments § 27 comment c (1982) (showing of "changed

circumstances" can prevent application of collateral estoppel).

That is the case here.    Even accepting that the 1987

determination as to clause b's applicability to Munsell Street

could be entitled to preclusive effect in this litigation, the

"approved" subdivision plans for Munsell Street that existed as

of the time of the applicant's present application are

materially different than those that existed (if any) in 1987.

See G. L. c. 41, § 81L.     The factual differences render

collateral estoppel inappropriate.12

     The decision in Goldman v. Planning Bd. of Burlington, 347

Mass. 320, 324 (1964), is instructive.     In that case, the

applicant argued that because the board had previously granted

an ANR endorsement for a property on a particular way, a later

filed plan showing the same lots on the same way must be granted

an ANR endorsement.   Id.   The way was not a public way.      The

Supreme Judicial Court held that "[w]hatever the plaintiff's


     12Because Munsell Street was never actually reviewed and
approved by the board, the applicant's contention that the town
failed to follow the procedures to modify an approved plan under
G. L. c. 41, § 81W, is unavailing.
                                                                     17


rights under [the first plan], they do not include the right to

require that the new plan be indorsed 'approval . . . not

required.'"    Id.   The court explained that endorsement of the

earlier plan was not an "approval" of that plan as that term is

used in clause b.     Id.   And the court went on to conclude that

if the prior ANR determination had been made under § 81L clause

c, it was not entitled to preclusive effect:     "Nor can we agree

that any determination in 1960 that the way was adequate is

'conclusive' upon the board in any subsequent application for an

indorsement of another plan showing the same way.      The 1960

decision was as to the particular plan."      Id. at 324-325.

    Goldman establishes, at least, that a planning board ANR

approval based upon clause c -- that a way has "sufficient

width, suitable grades and adequate construction" -- does not

bind the town as to a subsequent ANR application involving the

same way.     Implicit in Goldman's conclusion is the recognition

that the condition of the way can change over time or across its

length, and thus each effort to rely on clause c for an ANR

approval must be decided on the then-existing facts.      So

understood, Goldman embodies the collateral estoppel principle

discussed above; collateral estoppel does not apply where the

facts material to the litigation have changed.

    Goldman thus supports the conclusion that collateral

estoppel does not apply here.     Although this case involves
                                                                     18


clause b of § 81L rather than clause c, the material facts as to

clause b are different now than in 1987.13

     Finally, we find support for our conclusion in the

principle that courts have discretion to ensure that offensive

collateral estoppel is applied fairly, and in relevant

provisions of the Restatement (Second) of Judgments, supra at

§§ 28 and 29.   Here, the applicant seeks to preclude a

government board from litigating about the adequacy of a way,

based upon an incorrect finding in a thirty year old judgment

involving litigants other than themselves.     Not only would such

a result be unfair, but it would also undermine the public

interest in ensuring that new lots have access to ways that are

safe and convenient for travel.    There are recognized principles

that speak caution in applying offensive collateral estoppel in

such circumstances.    See Restatement (Second) of Judgments,

supra at § 28(5).     See also United States v. Mendoza, 464 U.S.

154, 159-161 (1984) (noting significant differences between


     13 We recognize that Goldman could be read as a broader
rejection of collateral estoppel in the ANR context, but we do
not so read it. Collateral estoppel doctrine has evolved since
Goldman was decided. Collateral estoppel may apply to some
findings made in ANR litigation -- for example, a fully and
fairly litigated determination that a way is a public way --
provided the applicable collateral estoppel requirements are
met. We also assume, without deciding, that offensive
collateral estoppel can be applied against municipal entities in
some circumstances. See generally Trustees of the Stigmatine
Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 566
(1976).
                                                                    19


private and public litigants for collateral estoppel purposes,

and holding that nonmutual offensive collateral estoppel cannot

be applied against United States).

    D.    Remaining issues.   For the first time on appeal, the

applicant argues that the judge's subsidiary findings in Pharmer

compel the conclusion that Munsell Street is a public way by

prescription.   This was not a basis argued in the applicant's

motion for summary judgment, and we need not consider arguments

raised for the first time on appeal.     See Carey v. New England

Organ Bank, 446 Mass. 270, 285 (2006).    Were we to exercise our

discretion to consider the argument, however, we would conclude

that the applicant's reliance on those findings in this case is

misplaced.   As discussed, the judge in the Pharmer litigation

did not decide the prescription issue.    To be given collateral

estoppel effect, the prior findings must be essential to the

judgment rendered, and here the findings that the plaintiffs

seek to rely on do not satisfy that requirement.    See Jarosz v.

Palmer, 436 Mass. 526, 533 (2002) ("For a ruling to have

preclusive effect, it must have a bearing on the outcome of the

case").

    The applicants did not argue in the Superior Court that

issue preclusion should apply to the 1975 confirmation

proceeding that identified Munsell Street as a public way.     On

appeal, the applicant cites no law suggesting that a street may
                                                                     20


become public simply because it is shown as public on a plan

that confirms title pursuant to G. L. c. 185, § 26A.     While the

applicants contend on appeal that the title to, and boundaries

of, Munsell Street were actually litigated in 1975, no such

argument was made in the Superior Court.     Because this issue was

not raised below, we do not decide whether public way status

might be established through such an adjudication.

       Conclusion.   In summary, the judge's conclusion that

Munsell Street in front of lot B is a public way was an error of

law.    Moreover, the applicant's summary judgment materials did

not show that Munsell Street otherwise meets the criteria

necessary to exclude the instant application from subdivision

approval under § 81L.    The judgment in favor of the applicant is

vacated.

                                     So ordered.
