Plaintiff, the Town of Nantucket, commenced this action on January 18, 2008 seeking declaratory judgment, pursuant to G.L. c. 231A, § 1, concerning any rights of defendant, Mary Virginia Herlitz, as Trustee of the Herlitz Nominee Trust, to use a parcel of real property located on K Street in Nantucket, said parcel being known as Lot C and owned of record by the town.
On July 14, 2008, defendant filed a motion for summary judgment and, among other documents, affidavits of Albert L. Manning, Jr. and Britta Ann Lerner in support thereof. Plaintiff opposed the motion on September 9, 2008, and simultaneously filed motions to strike portions of each affidavit. The motions were argued before the Court on October 6, 2008, and taken under advisement.
Upon request of the Court, on March 30, 2009, defendant filed a motion to substitute Britta Ann Lerner and Kirk Herlitz, as Trustees of the Herlitz Nominee Trust, which the Court (Trombly, J.) allowed. [Note 2]
After careful consideration of all of the evidence, the Court entered a Decision today, ruling that defendants do not have the right to construct a gangway on Lot C.
In accordance with that Decision, it is hereby
ADJUDGED and ORDERED that the defendants motion for summary judgment is DENIED;
ADJUDGED and ORDERED that the Herlitz Property holds an appurtenant easement to use Lot C for the purposes of bathing and boating;
ADJUDGED and ORDERED that the easement does not include the right to construct a gangway on Lot C to connect Lot C and the floating dock; and it is further
ADJUDGED and ORDERED that summary judgment is GRANTED for plaintiff.
By the Court (Trombly, J.).
[Note 1] If not specifically defined herein, each term carries the same definition employed in the Decision.
[Note 2] Plaintiff originally named Mary Virginia Herlitz, as Trustee of the Herlitz Nominee Trust, in its complaint. Mrs. Herlitz is deceased. On March 7, 2008, John E. Herlitz, as Successor Trustee of the Herlitz Nominee Trust, filed an answer to the complaint. The trusts declaration provides for Mr. Herlitz to take over as Trustee upon the incapacity of Mrs. Herlitz. Subsequent filings by defendant were made by Britta Ann Lerner and Kirk Herlitz as Successor Trustees of the Herlitz Nominee Trust.