This is one of three actions relating to a newly constructed loop road located on property on Summer Street in the Town of Manchester-by-the-Sea. The other actions were filed, and are apparently still pending in, the Essex Superior Court Department of the Trial Court, one having been filed by abutter James R. Brady, the other by Stephen Kelly, as General Partner of Sandcastle Limited Partnership and as Trustee of Blue Sands Realty Trust. [Note 1] Both Brady and Kelly claim rights to use a common driveway extending, in part, over land of Pasquine, and contend that the location of the way has been unlawfully changed by Mr. Pasquine.
The present case, and the subject of this decision, was filed in the Land Court on September 25, 2006, by Thomas Pasquine and his wife, Valerie Pasquine (Plaintiffs or the Pasquines), appealing, pursuant to G.L. c. 40A, § 17, a decision of the Planning Board granting with conditions their application for a special permit which would allow them to relocate a common driveway running through and across their land which services their land and three other parcels currently owned by Brady and Kelly. [Note 2] The land at issue was formerly part of the King Estate and is located between Summer Street and Ocean Street in Manchester. [Note 3] The driveway in controversy has been in existence for many years and serves as frontage to the Pasquine property, two additional existing homes owned by Brady and Kelly, and a fourth, undeveloped lot. A sketch plan attached hereto delineates the approximate location of the way, the four lots, and the surrounding area.
A trial was held, jury-waived, over three days and a view was taken. Based on the facts contained in the parties pre-trial memoranda, my observations at the view, the testimony and exhibits admitted into evidence at trial, the parties admissions in their post-trial memoranda, and my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find the following facts:
1. Thomas and Valerie Pasquine own a single family home located at 345 Summer Street in Manchester, having purchased it from the Trustees of the Jean H. Brooks Trust by a deed dated December 3, 1997 and recorded at the Essex (South District) Registry of Deeds in Book 14465, Page 441 (the Pasquine deed).
2. The Pasquine deed, in addition to containing a metes and bounds description of their land and identifying it as Lot 2 on a plan of the King estate, contains the following language:
The granted premises are conveyed together with the benefit of and subject to rights and easements in common with the owners of Lot 1 and Lot 4 in and over the existing drive running across the granted premises shown on said plan to pass and repass by motor vehicle and by bicycle and on foot and to install, use, operate, maintain and repair underground water and utility lines in accordance with the agreement recorded with said Deeds in Book 7060, Page 136.
3. The Pasquine deed also states that the granted premises are subject to rights and easements for the benefit of Lot 1 (now owned by Brady) in and over not more than two driveways which would run from the existing drive onto Lot 1 in locations to be chosen by the owner of that lot. In fact, Brady now has two driveways running from his land to the driveway as it is presently located. The Brady driveways formerly connected with the existing drive where it was located before Pasquine relocated it to its present location. [Note 4]
4. The land on which the Pasquine, Brady and Kelly lots are now situated was formerly known as the King Estate. The lots which make up this estate are reflected on Exhibit 1-4. Exhibits 1 and 2 are parts of a two plan set titled Plan of Land in Manchester, Mass. Essex County of the Estate of Mary P. King dated January 25, 1983, and recorded in Plan Book 176, Plan 78. The sketch plan attached hereto is derived from these plans.
5. The King Estate was constructed in the late nineteenth century and was landscaped by Frederick Law Olmstead, a noted landscaper of the time. A significant feature of the landscaping is a network of hewn-granite walls that surrounds and criss-crosses the estate. Included among the landscaping is a stone entryway to the common driveway from Summer Street. Two stone pillars, approximately sixteen (16) feet, ten (10) inches apart, are located at the point where the driveway meets Summer Street. The driveway itself is about fourteen (14) feet wide and crosses over land which is not flat. Rather, the land on which the way is situated is higher near Summer Street and tapers down in the area of Lot 4.
6. The King Estate land was, and still is, an area with significant tidal lands and a high water table. The soil present on the land does not drain well and is not at all ideal for road construction. As a result, Kellys land is served by a very large septic field. Following heavy rains, there is periodic pooling of water on both sides of the driveway which often lasts for seven to ten days at a time. Kellys predecessors in title, Donald E. Besser and Juliet Besser, obtained title to what is now Lots 4 and 4A in 1983, at which time they also obtained an easement to pass over Lot 2 (now owned by Pasquine). Pursuant to that agreement, the owner of Lot 4 is responsible for 100% of drainage maintenance and 50% of other maintenance.
7. On or about October 22, 1991, the Pasquines predecessors in title, Robert and Phyllis Driscoll, entered into an easement and restriction modification with the Bessers which was recorded in Book 11605, Page 67. As part of the modification, the parties agreed that the use of the driveway from Lot 4 across Lot 2 would be restricted for a term of ten years from the date hereof to no more than three dwelling units as herein defined. After ten years, the Driscolls agreed that if a subdivision way is ever approved by the Manchester Planning Board or constructed on Lot 2, the Bessers (Kellys predecessors) shall have the right to use said way for all purposes for which ways are commonly used in the Town of Manchester and the Bessers shall be granted frontage on said way as required by the Zoning By-law of the Town of Manchester for one lot even if the conveyance of land by the Driscolls shall be required for such frontage. The agreement was to run with the land and be binding on the parties, their heirs, assigns and successors. [Note 5]
8. At some point after purchasing his property in 1983, Besser decided to subdivide Lot 4 and sought approval of his plan by the Planning Board. A decision issued by the board was contested, resulting in two lawsuits. A settlement agreement was reached in 1992, providing in part that Besser would not record the plan or revised plan he had submitted. Instead, the Bessers agreed to prepare a new plan showing the division of the Besser property into two lots with frontage of a new lot being on the existing way running from Summer Street across Driscolls lot (now Pasquines lot) to the Bessers lot. A review of the plan attached as an exhibit to the settlement agreement shows Lot 4A as containing 1.97 acres with the existing driveway going into it. The agreement references separate easement and restriction modifications addressing use of two different common driveways which serviced Lot 4.
9. The plan ultimately filed by Besser in November 1992, several months after the settlement agreement, reflected the existing driveway across Lot 2 going into Lot 4 and provided for a Lot 4A with the existing road going into it. It is interesting to note that the plan attached to the settlement agreement showed Lot 4A as containing 1.97 acres. Notwithstanding these differences, Besser testified at trial that his attorney and the Planning Board felt it would be more appropriate to have the frontage on that side of the way instead of including the way. (Emphasis added).
10. As previously noted, the Pasquines purchased Lot 2 in 1997. Their deed states that the land they purchased is subject to and has the benefit of certain rights and easements which are set forth in the instrument.
11. By two deeds dated January 6, 2000, and duly recorded, the Bessers conveyed lots 4 and 4A to Kelly, Lot 4 being conveyed to Sandcastle Limited Partnership, and Lot 4A being conveyed to Kelly as Trustee of The Blue Sands Realty Trust. These two lots had been created and shown on a plan prepared for the Bessers in 1984, updated in 1992, and duly recorded in Plan Book 279, Plan 24. Both of these deeds recited that the land conveyed therein was being sold subject to easements and agreements of record, more particularly described, without limitation on a schedule attached thereto. Among the items listed on the attached schedule were the following:
6) Agreement regarding driveway maintenance, drainage and underground utilities, affecting lots 1, 2 and 4 on Plan 78 in Plan Book 176, dated 3/2/83 and recorded in Book 7060, Page 136.
8) Subject to and with the benefit of an Easement and Restriction Modification agreement affecting Lots 2 and 4 dated 10/22/91 and recorded in Book 11605, page 67.
10) Easements, restricted areas and other matters as shown or noted on Plan 78 in Plan Book 176 and Plan 24 in Plan Book 279.
12. By instrument dated September 14, 2000, and duly recorded in Book 16731, Page 505, the Pasquines and the Kellys, as General Partners of Sandcastle Limited Partnership, agreed to modify the easement by changing the location of a portion of the driveway which had been delineated on the plans of the King Estate dated January, 1983. Specifically, the signers agreed to relocate the driveway to a new location, to be shown on a new plan dated July 21, 2000 which would then be recorded. The Bradys, owners of Lot 1, did not sign this agreement.
13. At some time in 2000 or 2001, Mr. Pasquine determined that he wanted to relocate the portion of the driveway on his land to a location closer to the Brady property (Lot 1) and further away from the Pasquine dwelling. In fact, the Pasquines constructed a loop running within five feet of Bradys boundary line, on or near which are located a six foot high stockade fence and tall shrubs.
14. In 2001, the Bradys initiated litigation against the Pasquines in Superior Court to prevent any change in the location of the driveway. The Kellys joined in that litigation. A Justice of that Court allowed motions for summary judgment filed by the plaintiffs, whereupon the Pasquines appealed to the Appeals Court. That Court remanded the matter to Superior Court without decision because, in the interim, the Supreme Judicial Court had decided the case of M.P.M. Builders, LLC. v. Dwyer, 442 Mass. 87 (2004), establishing new law in Massachusetts that a deeded easement can be relocated without the assent of the servient landowner under certain circumstances.
15. Further proceedings were conducted in Superior Court on the issue of whether Pasquines desire to relocate the way could be carried out in compliance with the conditions set out in the M.P.M. decision and, specifically, with the Restatement (Third) of Property (Servitudes) § 4.8(3)(2000). [Note 6] In a Memorandum of Decision and Order issued on December 7, 2005, Justice Elizabeth M. Fahey found that the Pasquines could potentially satisfy all of the requirements for the servient estate to be able to move the easement in accordance with M.P.M. However, she stopped short of determining that either of the new locations proposed by the parties was acceptable. The court afforded the parties additional time to attempt to pursue an agreement as to a location which would comply with the criteria set out in M.P.M. and withheld entry of judgment in order to delay the appellate clock from ticking. The court, in considering how close the relocated driveway could safely be to the Brady boundary, directed the parties to the appropriate town agency with expertise on these issues .....
16. The Town of Manchester, in § 6.2.8 of its Zoning By-law, requires a special permit if one is seeking to construct a common driveway. The Pasquines filed an application and plan on or about February 2, 2006, seeking approval to relocate the driveway at issue in this case. The Planning Board gave notice pursuant to G.L. c. 40A, § 11 and held a public hearing on July 10, 2006. The hearing was successively continued to July 31, August 14, and August 28, 2006. On August 28, 2006, the Board approved the issuance of a special permit allowing relocation of the driveway but subject to seventeen conditions.
17. This action was filed by the Pasquines on September 25, 2006, appealing the Boards decision which, ironically, granted the special permit. Plaintiffs, in fact, are appealing several of the conditions which the board had imposed. Specifically, they object to and appeal the portions of the Boards decision requiring that the relocated driveway be constructed in accordance with the Boards subdivision rules and regulations, including a requirement that the way be paved to a width of eighteen (18) feet and have a road base of at least fifteen (15) inches. The Pasquines also object to the Boards requirements that the driveway be located at least twelve (12) feet from the Brady boundary line, that the easement of the right of way be thirty-five (35) feet (including the roadway itself, space for drainage, and space for snow storage), as opposed to the fourteen (14) feet they had proposed. Finally, the Pasquines object to the Boards requirement that their proposed curb cut at Summer Street be widened to allow for a fifteen (15) foot turning radius.
Mass. General Laws c. 40A, § 9 states, in part,
Zoning ordinances or by-laws shall provide for specific types of uses which shall only be permitted in specific districts upon the issuance of a special permit. Special permits may be issued only for uses which are in harmony with the general purpose and intent of the ordinance or by-law, and shall be subject to general or specific provisions set forth therein; and such permits may also impose conditions, safeguards and limitations on time and use. (Emphasis added).
G.L. c. 40A, §§ 9, 9A, 9B, and 9C go on to detail a host of specific uses that may be regulated by special permit, and to establish procedures. There is no right to a special permit and denial of a special permit application is within the discretion of the permitting authority. Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 311-12 (1973). A board may deny [a permit] even if the facts showed that a permit could be lawfully granted. Zaltman v. Bd. of Appeals of Stoneham, 357 Mass. 482 , 484 (1970). To hold that a decision of the board denying a permit is arbitrary or capricious per se whenever the board ... could have granted a permit would eliminate the boards intended discretion. Gulf Oil Corp. v. Bd. of Appeals of Framingham, 355 Mass. 275 , 277-78 (1969).
There is no doubt that the Pasquines were required by the Manchester Zoning By-law to seek and obtain a special permit before relocating or constructing a common driveway. Section 6.2.8 of the by-law so provides. Arguably they could have left the currently existing driveway in place because it was clearly there for many years before the by-law was enacted. However, once they decided to relocate the way, the by-law applied to them and they were required to seek a special permit. M.P.M. did not require them to seek the special permit, nor did Justice Fahey specifically require them to apply in her Decision. In short, the by-law, itself, mandated it, and the Pasquines sought and received the permit, albeit subject to certain conditions with which they do not agree, and from which they now appeal.
Standard of Review
On appeal, an issuing authoritys decision, while based on de novo fact finding, is nonetheless circumscribed. The decision cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary. Roberts v. Southwestern Bell Mobile System, Inc., 429 Mass. 478 , 486 (1999) (quoting MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). Once legal issues have been decided, the deferential review of the decision of a permitting board explains why [v]ery few trial decisions ordering the issuance of a special permit ... denied by a granting authority have been upheld at the appellate level. Mark Bobrowski, Handbook of Massachusetts Land Use and Planning Law, 349 (2d ed. 2002) (and cases cited).
In the present case, an issue has been raised as to whether plaintiffs were aggrieved by the Planning Board decision and had legal standing to appeal it, given that their application for special permit was granted. Still another issue was raised questioning what action the court should take if it were to be determined that one or more of the conditions imposed by the Board exceeded the authority of the Board. Should the court merely void the conditions, letting the permit stand without conditions, or should the matter then be remanded to the Board for a decision as to whether or not the permit would have been granted without conditions? I will discuss these issues later in my decision. In the meantime, I find and rule that plaintiffs have standing as unsuccessful applicants. Obviously, the Board has standing to defend its decision, and intervener-defendant Kelly has standing because of his rights in the driveway which Pasquine seeks to relocate.
The Planning Board and Kelly contend that since the Board could have simply denied Pasquines application because of the great latitude given to it in making special permit decisions, it follows that any conditions imposed by it are automatically reasonable. They cite the case of Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 (2003) for the proposition that a permitting authority has very broad discretion on the issue of even issuing a special permit, with or without conditions, and contend that the conditions imposed by the board in the present case are reasonable and should therefore be upheld.
The Eighteen (18) Foot Pavement Width Requirement
The Pasquines do not agree with the Boards requirement that the new common driveway be paved to a width of eighteen (18) feet as opposed to its current width of fourteen (14) feet. They also contend that requiring the driveway to be built to subdivision standards would thereby require them to forfeit a piece of their property to Mr. Kelly for frontage purposes, and that there is no need for the Board to require the driveway to be paved and to extend approximately sixty (60) feet into the Kelly property when the plan being submitted does not pass close to drains on or near the Kelly property. Pasquines engineer, Bruce Eaton, testified and submitted a plan he had prepared which, he believed, complied with the recommendations of the board without requiring such a wide, long, or extensive road. Eaton, a licensed surveyor and engineer since the 1950s, proposed a six-inch foundation material for the driveway with a two-inch binder course and a top coat of one and a half inches. He noted that these designs were consistent with the state curb-cut permit, and concluded that the subdivision standards required by the board were onerous and were not required by the type of use and service to which the driveway would be put.
On the issue of how close the relocated driveway should be to the Brady boundary line, Pasquine seeks to locate the way approximately five feet from the line, on which Brady has a stockade fence and on which shrubbery has been planted. The board disagreed, requiring that the way be about twelve feet from the boundary, thus putting it about seven feet closer to the Pasquine residence, something which plaintiff was trying to avoid. [Note 7] As noted earlier, Brady has two driveways leading from his land, between two section of stockade fence and the shrubbery, to the driveway. Defendants contend this is a safety hazard because a vehicle exiting the Brady property would have serious sight-line problems and would have to be driven partially into the way before the driver would be able to see if another vehicle or person were driving or walking on it. Mr. Eaton disagreed, suggesting that a large reflective mirror might alleviate the problem and opining that a five foot gap would be satisfactory in the present circumstances, due in great part to his conclusion that use of the way would be intermittent and sparse in any event.
Defendants, both the Board and Kelly, disagree with plaintiffs contentions and argue that the Board was within its rights in imposing the conditions. Specifically, defendants aver that the decision of the Board requiring that the way be eighteen (18) feet wide is supported by legitimate traffic/public safety concerns. Manchester Fire Chief Andrew Parakalis testified at trial that when asked, he always recommends that common driveways be paved to a width of at least eighteen feet. He bases his opinion, in part, on the minimum requirements for a fire lane, as set forth in 527 CMR 10.03 (10), the purpose of which is to provide clear access by emergency personnel to residences along the common driveway. The Chief also testified that he has made the same recommendation to local builders on several occasions, even though the driveways being constructed by them at that time were to serve only one or two residences. To him, it is a matter of access by emergency vehicles, both to the lot on which the emergency is taking place and on the way itself.
When asked about specific pieces of fire and emergency apparatus under his control, the Chief stated that the Towns largest fire truck, a ladder truck known as the Quint, is always the first to respond to an emergency. The Quint is over thirty-eight (38) feet long, ten (10) feet wide, and weighs sixty-thousand (60,000) pounds when filled with water. It has a turning radius of seventy (70) feet. Two other trucks are nine (9) feet long and weigh approximately thirty- thousand (30,000) pounds each when filled with water. At least four vehicles, including the Quint and one of the other trucks, respond to every emergency call.
Chief Paskalis emphasized that he would like to see even single-family driveways paved to at least eighteen (18) feet wide, and that common driveways often cause safety concerns which single-family driveways do not. An example of this occurs when emergency vehicles responding to a call encounter vehicles going in the opposite direction. If the driveway is not wide enough, at least one of the vehicles has to drive off the driveway and up on the lawn to enable the vehicles to pass one another safely. In his opinion, wider roads assure faster and safer responses.
The Towns expert witness, Vaclav Talacko, an engineer, agreed with the testimony of Chief Paskalis and noted that a four lot subdivision in Manchester would be subject to the Boards Rules and Regulations, including the requirement that the way be paved to a width of eighteen (18) feet. He testified that while the Rules and Regulations may not technically apply to a common driveway serving four lots, the fact remains that the engineering and safety issues are the same. He concluded that the way proposed by the Pasquines is not adequate to accommodate large vehicles responding to an emergency given the number of lots and homes to be serviced.
Having considered the exhibits and testimony introduced by Mr. Eaton, Chief Paskalis, and Mr. Talacko, this court concludes that the Board did not err in requiring the driveway to be paved to a width of eighteen (18) feet. Large emergency vehicles need larger areas in which to maneuver, especially if the way in question is meant to service more lots with a large number of residents. Manchester, a coastal community, has many lots serviced by such driveways. The Board is correct and acted reasonably in requiring that the driveways be adequate to provide safe access by emergency and other vehicles.
The Fifteen (15) Inch Gravel Base Requirement
The Board also required, by ruling that the driveway be constructed according to its Subdivision Rules and Regulations, that the new roadway have a gravel base with a thickness of at least fifteen (15) inches. Plaintiff disagrees, arguing that this amount is excessive and unnecessary in the context of a common driveway meant to service only three or four lots. He proposes that the driveway be constructed with a six (6) inch gravel base.
Defendants engineer, Mr. Talacko, testified that a fifteen inch base is necessary in the present case because of the poor drainage characteristics of the properties in question, the history of standing water alongside the roadway, and the high water table. Both engineers admitted that a thicker base, as ordered by the Planning Board, would be a stronger and better roadbed than a thinner base, but disagreed as to whether a fifteen inch base is necessary in the present instance. Chief Paskalis testified that flooding, exacerbated by a smaller road base, would cause or worsen frost heaves, pot holes, and other road hazards which would, as a result, endanger or delay public safety equipment, including heavy fire trucks, responding to emergency calls. He testified that roads in better condition lead to faster and safer responses.
Plaintiffs nevertheless contend that the Board exceeded its authority in requiring the fifteen inch base, arguing that the Board acted arbitrarily in requiring the thickness ordinarily demanded of a subdivision plan when the issue before it was only an application to construct or relocate a common driveway. I do not agree, finding and ruling that given the circumstances of this case, and especially considering the length of the way, the Planning Board had both the authority and the duty to impose conditions which will insure the safety of those who have no choice but to travel the driveway to access the lots thereon.
The Thirty-Five (35) Foot Easement Requirement
In addition to requiring that the easement be paved to a width of eighteen feet and have a fifteen inch gravel base, the board also imposed a condition requiring that the easement of the common driveway be thirty-five feet wide, five feet less than the easement required under the Subdivision Rules and Regulations for a street or way in a subdivision but more than Pasquine proposes. Once again. The Pasquines object to this condition, finding it to be excessive.
Mr. Talacko, the defendants engineer, testified and opined that while a forty foot easement would ordinarily be required by the Boards rules and Regulations, a thirty-five foot easement would be adequate in this case and would provide enough space on the sides of the paved roadway to allow for maintenance and snow removal. He and Chief Paskalis pointed out that it is important that there be sufficient room on the sides of the roadway to place the plowed snow; otherwise, the roadway will be narrowed, thereby causing safety problems. I agree, in spite of Pasquines claim that the boards requirement is excessive.
The Setback from the Brady Property
Plaintiffs object to the condition imposed by the Board requiring that the way be placed in a location twelve (12) feet from the boundary line separating the Pasquine and Brady properties. As noted earlier, plaintiffs would like (and already have) placed the way only five feet from the boundary and the stockade fence located thereon. Defendants contend this would be unsafe because a party exiting the Brady property on one of the two permitted driveways would have inadequate sight-lines due to the fence and would have to pull out into the way before they were able to see if a car or vehicle was traveling along the driveway. The shrubbery planted by Pasquine in the same area only exacerbates the problem. In addition, as noted by Chief Paskalis, the closeness of the boundary and fence to the proposed driveway would make it more difficult for emergency vehicles, and especially fire trucks, to gain access to the Brady property.
I agree, for the reasons stated above, that the way must be further removed from the Brady property than the five feet proposed by Pasquine. Five feet is simply too close, and the evidence indicates that a distance of twelve feet from the boundary line will suffice to adequately serve public safety and the safety of those using the driveway, including residents, delivery persons, emergency personnel, and others seeking to gain access to the homes located on it.
Reconstruction of the Stone Entryway
Pasquine takes issue with the condition imposed by the Board that he reconstruct and relocate the stone pillars at the point where the driveway enters the property from Summer Street. The justification for this requirement is apparently an intention to maintain the historical and aesthetic character of the neighborhood which contains many old stone walls. I find that while there are reported cases holding that such an intention can be justified as a proper objective for a Planning Board, this case is not one of them. While aesthetics is often justification for some planning board decisions, and while the King estate is well worth preserving for historical reasons, the main concern in the present case is the safety of those using and living on the property at issue in this case. Here, the Board has made decisions regarding the width of the way, its location on the ground, and various construction issues. All of these rulings were made in an attempt to provide for the safety of those using the road. However, while the court agrees that the area in which the former King estate is located has significant historical value, this does not justify the Board requiring reconstruction and relocation of stone walls surrounding it. Of course, the Board is justified in imposing a condition requiring that the pillars be far enough apart so as to allow emergency vehicles to pass between them.
Reconstruction of the Common Driveway Sixty Feet into Kellys Lot 4
The Pasquines also take issue with the condition imposed by the Board requiring them to reconstruct the common driveway sixty feet into Kellys Lot 4 and along the frontage of Lot 4A. This condition was apparently based on the boards conclusion that the common driveway was more than that, serving both as a driveway and as a way providing access and frontage for Lots 4 and 4A, as required by the Planning Boards Rules and Regulations and by G.L. c. 41, §§ 81L and 81P. In the interest of public safety and access, it would not be proper for Pasquine to be allowed to relocate the common driveway in such a way as to have an adverse effect on these objectives by depriving Lot 4A of access and/or frontage.
Based on all the evidence, I conclude that the action of the Planning Board in granting the special permit allowing the Pasquines to relocate the driveway subject to all of the conditions recited therein, excepting the condition requiring them to reconstruct the stone entryway, was proper and was not arbitrary, capricious or whimsical. The Board acted within its authority and its decision is affirmed in all respects except the condition relating to the entryway. I see no need to remand this decision to the Planning Board, finding and ruling that the Boards Decision is valid in all respects with the exception of the one condition relating to the reconstruction of the Stone Entryway.
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Dated: August 31, 2009
[Note 1] The two Superior Court cases were consolidated, after which that court allowed motions for summary judgment. Appeals were then filed by the Pasquines but the Appeals Court remanded the cases to the Superior Court without decision following issuance by the Supreme Judicial Court of its decision in the case of M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004) which allowed relocation of granted easements under certain conditions.
[Note 2] Plaintiffs do not appeal the Planning Boards decision, per se, but do object to several of the conditions attached thereto by the Board.
[Note 3] The Town of Manchester officially changed its name to Manchester-by-the-Sea in 1990. I will use the old and current names interchangeably.
[Note 4] The common driveway was constructed approximately one hundred years ago.
[Note 5] The Superior Court Judge in the earlier case had ruled that Kellys Lots 4 and 4A had the benefit of the common driveway across Pasquines Lot 2. Pasquine now contends that Kellys Lot 4 easement expired on June 9, 2002, pursuant to the October 22, 1991 easement and restriction modification agreement. Kelly disagrees with this interpretation, contending that the language concerning the ten-year limitation referred to the three dwelling restriction, and not to the entire easement.
[Note 6] Section 4.8(3)(2000) provides that unless expressly denied by the terms of an easement, as defined in Section 1.2, the owner of a servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owners expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement; (b) increase the burdens on the owner of the easement in its use and enjoyment; or (c) frustrate the purpose for which the easement was created.
[Note 7] Pasquine claims that moving the driveway away from his residence will give him more of a lawn and give his children a larger place to play.