RICHARD G. BARRY & another 
PLANNING BOARD OF BELCHERTOWN & another. 
March 1, 2019.
action commenced in the Superior Court Department on March
case was heard by John S. Ferrara, J., on motions for summary
Katherine D. Laughman for the defendants.
K. O'Hara for the plaintiffs.
Michael Pill, for W.D. Cowls, Inc., amicus curiae, submitted
Present: Maldonado, McDonough, & Englander, JJ.
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 estoppel 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.
recite the undisputed facts from the parties' summary
judgment materials and the exhibits attached 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."
case involves the portion of Munsell Street beyond the
termination point of the formal acceptance. On January 23,
2015, Richard G. Barry (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. Lot A fronts on the
accepted portion of Munsell 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.
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
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 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 .
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.
Legal principles applicable to ANR endorsements.
principal purpose of the subdivision control law is to ensure
that all newly created lots have adequate access "by
ways that will be safe and convenient for travel," G. L.
c. 41, § 81M, because residents' "safety,
convenience, and welfare depend critically on that
factor." Palitzv.Zoning Bd. of
Appeals of Tisbury, 470 Mass. 795, 803 (2015), quoting
Giffordv.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, 810. 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 ...