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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 

 

10 A 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 

 

11 We 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 

 

12 Because 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.