This action was commenced by Thomas Pasquine and Valerie Pasquine (Plaintiffs or the Pasquines) on September 25, 2006 appealing pursuant to G.L. c. 40A, § 17 a Decision of the Manchester-By-The-Sea Planning Board granting with conditions their application for a special permit which would allow them to relocate a common driveway which runs through and across their land and services three other lots currently owned by Stephen R. Kelly, in two different capacities, and James R. Brady. Kelly, owner of two of the serviced parcels, moved and was allowed to intervene as an intervener-defendant. Brady, owner of the other lot, did not join.
Trial was held, jury-waived, over three days and a view was taken of the subject property in the presence of counsel and the parties. Thirty-four exhibits, some with multiple parts, were admitted into evidence and six witnesses testified. The testimony was recorded and transcribed by a court reporter. Post-trial briefs were received from all parties on or about March 20, 2009, at which time the matter was taken under advisement.
After careful consideration of all the evidence, testimony, and observations made while on the sight visit, a Decision was entered today ruling that the Planning Board Decision, with one exception, was proper and within the authority of the Board and was not arbitrary or capricious.
In accordance with that Decision, it is hereby
ADJUDGED and ORDERED that the condition imposed on plaintiffs in the Boards Decision which would require them to reconstruct the stone pillars located at the entryway where the driveway meets with Summer Street was beyond the authority of the Board, was arbitrary, and is therefore annulled; and it is further
ADJUDGED and ORDERED that the remaining conditions imposed by the Board, requiring Plaintiffs to construct the driveway with a width of eighteen feet, with a road base of at least fifteen inches, that the driveway continue into the Kelly property, and that the easement of the way be thirty-five feet wide, are within the authority of the Board, are not arbitrary, and are valid; and it is further
ADJUDGED and ORDERED that the Boards requirements that the curb-cut at Summer Street be at least fifteen feet wide and that the driveway be located to a place at least twelve feet from the Brady boundary line are legitimate safety issues and are therefore within the authority of the Board and not arbitrary.
By the Court. (Trombly, J.)
THOMAS PASQUINE and VALERIE PASQUINE v. JOHN B. NEWHALL, CARY GILBERT, ROBERT N. ATWATER, DON HALGREN, THEODORE P. BROWN, CRAIG FORSLEY, NANCY GARVEY, as they are members of the MANCHESTER-BY-THE-SEA PLANNING BOARD and STEPHEN R. KELLY, as General Partner of SANDCASTLE LIMITED PARTNERSHIP and as TRUSTEE OF BLUE SANDS REALTY TRUST,Intervener-Defendant