LEE PARKER, et al. v. STEPHEN M. DUNGAN, ELLEN S. STURGIS, JASON S. ROBART, THOMAS H. RUGGIERIO, and KATHLEEN KING FERREL in their capacity as the BOARD OF SELECTMEN of the TOWN OF STOW

This case came to be heard on Defendants’ Motion for Summary Judgment pursuant to Mass. R. Civ. P. 56 (a). An Order Allowing the said Motion in part and Denying the Motion in part, has been entered this day. In accordance therewith, it is hereby

ORDERED, ADJUDGED and DECLARED that a public trust was created by the Parker Deed for the benefit of the Inhabitants of the Town of Stow, said trust limiting the use of the property described therein to recreational purposes and facilities, including playground and swimming facilities, together with any incidental parking areas and structures. All such facilities, appurtenant parking areas and structures, are to be reasonable in relation and scope to the said recreational uses. It is further

ORDERED, ADJUDGED and DECLARED that the restriction contained in the Parker Deed is neither subject to, nor has expired pursuant to M.G.L. c.184, s. 23. It is further

ORDERED, ADJUDGED and DECLARED that no conservation restriction was created pursuant to the Parker Deed. It is further

ORDERED, ADJUDGED and DECLARED that within the buffer zone, the said public trust does not prohibit changes, modifications, alterations, construction, additions or any other actions that may be necessary, required, or beneficial in the judgment of the Town, for access and egress for any purpose, including but not limited to maintenance or construction of ways and any or all utility easements, but only however, in furtherance of the recreational, playground and swimming purposes that are permitted pursuant to the public trust. It is further

ORDERED, ADJUDGED and DECLARED that beyond the buffer zone, the Town may take such reasonable measures as may be necessary for the implementation of the recreational, playground and swimming uses permitted pursuant to the public trust. Such measures may include the cutting of trees as well as the construction, alteration or replacement of appropriate facilities. It is further

ORDERED, ADJUDGED and DECLARED that, with the exception of the buffer zone, [Note 1] the said public trust does not limit recreational activity to that of a purely “passive” nature or that which is “incidental to swimming.” It is further

ORDERED, ADJUDGED and DECLARED that, with the exception of the buffer zone, it is not necessary that the Locus be maintained in its natural state. It is further

ORDERED, ADJUDGED and DECLARED that the Town did not violate the Parker Deed or the resultant public trust by previously constructing soccer fields and an appurtenant parking lot on the property. It is further

ORDERED, ADJUDGED and DECLARED that with the exception of the buffer zone, and in furtherance of the recreational uses permitted under the public trust, the Town is not precluded from constructing athletic fields, together with appurtenant or incidental parking lots and structures, on the Locus.

By the Court. (Grossman, J.)