Mass. Appeals Court Highlights Workaround for Identifying a Public Way

Practice area:

The quality of a property’s frontage on a street or way can define its development potential and therefore its value. The gold standard, which will allow a comfortable check in the ‘frontage’ box in most Massachusetts municipalities, is having the amount of frontage required by the local zoning regulation on a public way. Not every city and town has a clean list of public ways, and there are often cost-based disincentives to declaring a way to be public when the status is unclear. An Appeals Court case decided last week, Barry v. Planning Board of Belchertown (pdf), confirms that there’s a seldom-discussed method of establishing that property fronts on a public way – estoppel.

There are three means of creating a “public” way in Massachusetts. See Fenn v. Town of Middleborough. The first method fell out of use in 1846 due to a change in the law. This involved dedicating the way to public use and the public accepting the way for that use. The second method, establishing a public way by prescription, requires (at a minimum) proving that the general public actually and regularly used the disputed portion of the way without interruption for 20 years. The third method is to follow the statutory process established by M.G.L. c. 82, §§ 1-32, which includes a municipality laying out and formally accepting the way.

Barry identifies a fourth method: a way could be “public” if a court issued a final judgment in a case to which a municipality was a party that directly involved the public/private status of the way. If a municipality cannot deny the public status of a way in court because of the prior adjudication of that issue, this should suffice for most relevant development purposes. As Barry points out at page 13, “issue preclusion generally applies even to facts or rights that may have been determined in error.” That is to say, a way that should not have been deemed public could nonetheless become so due to estoppel.

While there’s been ample litigation in Massachusetts involving the public status of ways in the zoning and subdivision context, other kinds of cases could also be considered. For example, the above-cited Fenn case involved a registration of land where the town took no issue with the boundaries of the parcel, “but denied that [the streets abutting the property] were public ways.” Fenn at 80–81. The town won that case, but assertions concerning the status of a way are not always contested by municipalities – and municipalities may sometimes erroneously concede that a way is public.

One point of caution, which the Appeals Court extensively discusses in Barry, is reliance on prior litigation over an “approval . . . not required” (or ANR) plan endorsed under M.G.L. c. 41, § 81P. These cases merit scrutiny if only because frontage on a public way is not required for ANR endorsement. The Appeals Court in Barry found that there was no estoppel because the public status of the way was not at issue in the prior case, and circumstances had changed. The court noted that in the prior case, the judge had concluded that the way was public, but there was no finding to that effect and no basis for that conclusion. The court also found that after judgment entered in the prior case, the town had approved a subdivision plan for what later became the plaintiff’s property that showed the supposed public way as open space, and had followed the statutory process to make the disputed way leading to that open space public.

With this caution in mind, the possibility of establishing that a way is public by estoppel should always be considered.