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Planning board presses Bayside Agricultural over access, frontage and whether parcels are "buildable"
Summary
At the Feb. 9 Wareham Planning Board meeting, members questioned whether three parcels in an ANR submitted by Bayside Agricultural meet statutory frontage and access requirements and whether a plan note declaring land "non‑buildable" is enforceable without a recorded covenant.
The Wareham Planning Board on Feb. 9 pressed the attorney for Bayside Agricultural, Inc. on whether three parcels shown on an ANR plan meet the town’s frontage and access requirements and whether the parcels can legally be treated as "non‑buildable." Attorney David Henegg told the board the applicant believes the land cannot support buildings and that access exists by easement over adjacent property, but he did not present a recorded easement or documentation certifying the way meets the town’s 16‑foot minimum and fire department weight standards.
Board members, backed by peer engineer Paul Mattos of Allen & Major Associates, described a gap between a note on a plan that labels a parcel "non‑buildable" and what can be enforced at the registry of deeds. "A note on a plan is not a deed restriction or covenant," Mattos said, urging the applicant to provide recorded instruments or easement certifications. Henegg said the plan will be recorded and that the applicant can provide additional evidence, including plan‑book references and historic cart‑path notes, but could not confirm the easement’s construction standard in the room.
The dispute centers on how Massachusetts subdivision control law (MGL Ch. 41 §§81K–81GG) and local bylaws treat lots and parcels. Several board members argued that state law requires every lot on a plan to have adequate access and frontage; the applicant’s attorney argued that a truly non‑buildable parcel does not qualify as a ‘‘lot’’ under that statute and therefore can be endorsed as ANR. The board asked for legal citations, a clear title/easement chain and evidence the access is an accepted adequate way capable of sustaining emergency vehicles.
Because the board did not have the requested documentation, members did not endorse the ANR. They asked the applicant to supply: easement instruments and proof the easement is valid and recorded, plan‑book references cited on the submitted plan, and certification that the access meets fire and town road standards. The board also discussed procedural deadlines for ANR review and said it would consider denial without prejudice or a finding that the plan instead represents a subdivision if the application remains deficient.
The board directed staff to clarify the precise list of materials needed and offered to waive re‑filing fees on a case‑by‑case basis if the applicant withdraws and refiles without substantially changing the plan. The board did not set a final decision date; Henegg said the applicant would return with requested legal citations and documentation.
Next steps: the applicant will provide the easement documentation, plan book references and any recorded covenants; the board will not endorse the ANR until it receives evidence that the access meets town and statutory standards.
