Plaintiffs Robyn Wright and Joseph D. Wright filed their unverified Complaint on April 4, 2004, seeking: (1) an appeal, pursuant to G. L. c. 40A, § 17, of a decision of Defendant Board of Appeals of the Town of Groveland (the ZBA) which granted a special permit to Defendant Vincent J. Fiore (Fiore) allowing home office use for the business of J & J Ponies (as hereinafter defined) at property owned by Fiore located at 104 King Street, Groveland, Massachusetts (Defendant Property); (2) a judicial determination, pursuant to G. L. c. 240, § 14A, as to the applicability of the agricultural exemption to the use of an easement (the Easement) providing access to Defendant Property across property owned by Plaintiffs and located at 102 King Street, Groveland (Plaintiff Property); (3) a declaratory judgment, pursuant to G. L. c. 231A, § 1, as to the interpretation of the Easement; (4) a preliminary injunction prohibiting Fiore from riding or walking horses on the Easement; and (5) an abatement of the nuisance of Fiores storage of large amounts of horse manure near Plaintiff Property. The ZBA filed its Answer on June 22, 2004, and Fiore filed his Answer on July 6, 2004. On October 4, 2004, Fiore filed a Motion for Preliminary Injunction. On October 28, 2004, this court granted Fiores Motion for Preliminary Injunction (the Order), ordering that
Plaintiffs shall be enjoined from placing objects or conducting activities on the twelve-foot paved driveway within the Easement that impedes access to Fiores Property, and no permanent objects shall be placed anywhere within the Easement; provided, however, the speed bumps and speed limit signs that currently exist shall remain in place to control vehicle speed within the Easement.
Fiore filed a Complaint for Contempt relative to the Order on November 30, 2004. An evidentiary hearing was held on December 28, 2004, and this court issued a decision and judgment on February 4, 2005, finding that Robyn Wrights walking of her dog in the Easement on November 17, 2004, and the placement of sawhorses in the Easement by Plaintiffs, were not a clear and undoubted disobedience of the Order. At that time the case was closed.
At a status conference on October 9, 2008, the parties stated that this case had been closed in error as a result of the judgment issued on February 4, 2005, and asked this court to reopen the matter. Plaintiffs filed an Amended Complaint on October 21, 2008, adding six new counts. At a hearing on November 6, 2008, this court denied the motion to amend the complaint. A pre-trial conference was held on January 26, 2009. Plaintiffs filed their Motion in Limine to Admit Photos and Videos into Evidence on May 13, 2009. Fiore filed his Opposition on May 19, 2009, and at a hearing on May 20, 2009, this court allowed Plaintiffs Motion in Limine. A site view and the first day of trial at the Land Court in Boston was held on June 2, 2009, and the second day of trial was held at the Land Court on June 3, 2009. At the end of Plaintiffs presentation of evidence, Fiore filed a Motion for Directed Verdict, which was denied. Fiore filed his Proposed Judgment on August 17, 2009. Plaintiffs filed their Trial Brief on August 28, 2009, at which time the matter was taken under advisement.
Trial testimony was given by Pat Schena (the Groveland Building Inspector), Joseph Eskel (prior owner of Defendant Property), Paul Bergman (Plaintiffs registered engineer), Robyn Wright (Plaintiff), Joseph Wright (Plaintiff), Vincent Fiore (Defendant), and Michael Riordan (Fiores title attorney). Twenty-seven exhibits were submitted, some in multiple parts.
Based on the sworn pleadings and the evidence offered at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. By deed dated July 1, 1968, Helen Slimas (Slimas) purchased Lot 1 (Plaintiff Property) and Lot 2 (Defendant Property) as shown on Plan of Land in Groveland, Mass., Property of Helen Slimas dated June 10, 1985, and prepared by Hancock Survey Associates, Inc. Lot 1 contains 8.427 acres and has frontage on King Street. Lot 2 contains 13.670 acres and has frontage on Centre Street. Lot 1s easterly (and a portion of its southerly) boundary abuts Lot 2s westerly (and a portion of its northerly) boundary.
2. Slimas conveyed Lot 2 to Joseph R. Eskel and Carol M. Eskel (the Eskels) by deed dated March 28, 1987 (the Eskel Deed). The Eskel Deed contained the following language:
The property conveyed by this deed shall not during the lifetime of the grantor be resubdivided by the grantee, his heirs, or assigns, into building lots, and only one single-family residence with the necessary outbuildings, and garage shall be erected, placed or permitted on the conveyed premises or any part thereof during the lifetime of the grantor.
I grant herewith to the grantees, an easement [the Easement] consisting of a fifty (50) foot right-of-way, the midline of which is the midline of an existing pathway currently running from King Street across other land of mine, namely Lot 1 as shown on the plan herein referred to, to the granted premises, said right-of-way being granted to the grantees, their executors, heirs and assigns for their use only, said easement to run with the land. . . .
Grantees shall have the right to install and maintain underground utilities within the aforesaid easement and shall have the further right to pave, and thereafter maintain the length of the said easement, up to a width of fifteen (15) feet.
I, the Grantor, in granting the above described easement, retain the right for myself, my heirs, executors and assigns, to use the right-of-way as needed, to continue my existing agricultural business and for purposes of reaching other land of mine.
In the event that the Grantees, their heirs, executors or assigns should obtain the necessary approvals to construct a driveway running from Center Street to the herein granted premises, all right, title and interest in the granted right-of-way shall expire. The grantees are under no obligation to seek said approval.
. . . .
A plan titled Plot Plan of Land in Groveland, MA Prepared for Helen Slimas dated September 20, 1989, shows the Easement. [Note 1]
3. On August 10, 1987, the Building Inspector of Groveland (the Building Inspector) granted the Eskels a building permit for a single family home and garage on Defendant Property. The Building Inspector granted the Eskels a building permit for a barn (the Barn) in July, 1989. The building permit for the Barn contained the notation: ZBA=Must comply with zoning by-laws, barn will be for own use.
4. Thereafter, the Eskels built twelve stables in the Barn for horses which they owned and for their friends horses. The Eskels did not receive income from the Barn usage and did not file tax returns for a business on Defendant Property. [Note 2]
5. Slimas ran a blueberry orchard on Plaintiff Property for many years. Plaintiffs moved into the house on Plaintiff Property in 1991, to assist with Slimas care and the care of Plaintiff Property. Slimas died in December of 1993 and devised Plaintiff Property to Plaintiffs by her will. Robyn Wright continues to reside on Plaintiff Property. [Note 3]
6. By deed dated February 27, 1998, the Eskels deeded Defendant Property to Fiore. The listing agreement indicated that the Barn contained, in part:
indoor [arena] 70' x 150'. Capacity of 20 Stalls - 10 stalls finished, Heated grain room . . . . Tack room, viewing room unfinished. . . . Audio and video camera system wired and installed in Arena. Sprinkler watering system for Arena. Security system. 200 Amp Separate service. Hay Storage overhead 5000 bales. . . . Outdoor Ring 70' x 155'.
7. In 1998, Fiore established Hunters Haven (Hunters Haven), a stable and a riding academy and training facility, on Defendant Property. Fiore also owns a separate business entity doing business as J & J Ponies (J & J Ponies), which provides off-site pony rides. J & J Ponies uses the same ponies that are boarded on Defendant Property for use by Hunters Haven for the riding academy. The same employees run both Hunters Haven and J & J Ponies. [Note 4]
8. On February 9, 2004, Fiore applied to the ZBA for a special permit (the Special Permit) allowing a home occupation to operate J & J Ponies. [Note 5] On April 7, 2004, the ZBA voted (the ZBA Decision) to grant the Special Permit permitting Home office use only for the Business J & J Ponies. [Note 6] Other conditions of the ZBA Decision included limiting the home offices hours of operation from Monday through Friday to 9:00 A.M. to 9:00 P.M. and Saturday and Sunday from 9:00 A.M. to 7:00 P.M., and limiting the number of employees to a maximum of two family members.
Plaintiffs object on several grounds to Fiores use of the Easement and Defendant Property. Plaintiffs argue that (1) the Special Permit is invalid; (2) the Easement is not protected from local zoning regulations by the agricultural exemption in the so-called Dover Amendment found in G. L. c. 40A, § 3; [Note 7] (3) the Easement is limited to the personal use of Fiore and cannot be used for horse walking; and (4) the storage of manure on Defendant Property is a nuisance. Fiore claims that (1) there is no need for the Special Permit because of the Dover Amendment, but that even if applicable, the Special Permit is valid; (2) the scope of the Easement includes use for Fiores commercial operations and horse walking; and (3) the storage of manure is not a nuisance. I shall examine each of these issues in turn.
I. Special Permit/Agricultural Exemption.
Plaintiffs argue that the Special Permit was not properly issued to Fiore because his home office does not meet the requirements of a home occupation as defined in the Bylaw. [Note 8] Plaintiffs state that the home office for an equestrian business is not a customary home occupation. Plaintiffs also state that J & J Ponies is an off-site entertainment service, and not a business carried on within the home or accessory structures. Finally, Plaintiffs argue that the business of J & J Ponies is not an agricultural use protected by the Dover Amendment because it does not involve the use of land for
raising animals, including, but not limited to . . . horses, ponies . . . for the purpose of selling such animals or a product derived from such animals in the regular course of business; or when primarily and directly used in a related manner which is incidental thereto and represents a customary and necessary use in raising such animals and preparing them or the products derived therefrom for market.
G. L. c. 61A, § 1. [Note 9] Fiore asserts that the Dover Amendment protects the agricultural use of Defendant Property (including equestrian use) from requiring a special permit. Fiore also argues that the use of the home business office on Defendant Property for J & J Ponies is an integral part of the operation of the Hunters Haven equestrian business and, as such, it too is a protected agricultural use.
As an initial inquiry, this court must determine whether the home occupation (a business office) use that Fiore proposes (and that was allowed by the ZBA Decision) was subject to special permit zoning regulation to begin with, or whether this use was protected by the Dover Amendment. [Note 10] In other words, the issue becomes whether Fiores use of a portion of one bedroom as a home business office in conjunction with J & J Ponies can qualify as incidental to a use of land for the primary purpose of agriculture. See Henry v. Bd. of Appeals of Dunstable, 418 Mass. 841 , 844 (1994) (Uses which are incidental to a permissible activity on zoned property are permitted as long as the incidental use does not undercut the plain intent of the zoning by-law.).
The Dover Amendment cross-references the term agricultural to such terms definition found in Section 1A of Chapter 128 of the General Laws, which states, in part: the raising of livestock including horses, the keeping of horses as a commercial enterprise. In this regard, Fiore cites Bateman v. Bd. of Appeals of Georgetown, 56 Mass. App. Ct. 236 (2002), and Steege v. Bd. of Appeals of Stowe, 26 Mass. App. Ct. 970 (1988). In Steege, the Appeals Court found, [i]n view of the evidence and the expansive definitions of agriculture in the statutes, no error in a trial judges determination that
the plaintiffs purchase and raising of horses, their stabling, training through the operation of the riding school, and their participation in horse shows are all part of the one whole and constitute agriculture as that phrase is used in c. 40A, § 3.
26 Mass. App. Ct. at 972. Four years later, the Appeals Court incorporated Steege into the holding in Bateman, which addressed a proposal to use the locus to raise, train, and board her own and others horses [as well as] plans to coach riders, and to offer lessons and horses to people who do not own their own horses. 56 Mass. App. Ct. at 243. On their way to finding such use was a protected agricultural use under the Dover Amendment, the Appeals Court observed that
[t]he Steege decision concluded that a locus used for raising, training, and boarding of horses; for giving riding lessons; and for the riding use of owners of the boarded horses fell under the agricultural use exemption. In [Steege] we noted that including such use in a definition of agriculture corresponded with [the words] plain and ordinary meaning and its consistent and well-established . . . definition in other statutory contexts.
Id. (citation omitted). In light of Steeges and Batemans protection of riding lessons as an agricultural use, and given that J & J Ponies uses the same ponies and employees that Hunters Haven uses for riding lessons, I find that J & J Ponies supplying ponies for off-site event riding is consistent with the Dover Amendments exemption of those uses for the primary purpose of agriculture. As a result of the foregoing, I find that the equestrian uses of Defendant Property by both Hunters Haven and J & J Ponies are protected agricultural uses under the Dover Amendment.
Given this courts finding that the equestrian use of Defendant Property by J & J Ponies and Hunters Haven is a protected use under the Dover Amendment, it follows that uses that are incidental to such equestrian use are also protected. See Henry, 418 Mass. at 844. Whether a use is incidental is a fact-dependent inquiry, which both compares the net effect of the incidental use to that of the primary use and evaluates the reasonableness of the relationship between the incidental and the permissible uses. Id. In zoning parlance, an incidental use touches upon two concepts.
It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. . . . But incidental, when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. [Note 11]
Id. at 845 (citing Harvard v. Maxant, 360 Mass. 432 , 438 (1971)). The trial record indicates that Fiores proposed home business office takes up minimal space as it occupies a small portion of one existing bedroom in his residence on Defendant Property. Moreover, the proposed use consists of only a phone, a computer, and a filing cabinet, and is not accessible by anyone other than Fiore and his immediate family. This court is convinced that such use is subordinate and minor in significance when compared to Fiores agricultural use on Defendant Property. Moreover, a home office of this sort is reasonably related to the business that it serves, in that the phone, computer, and filing cabinet can be used to facilitate the scheduling and management of the pony rides that J & J Ponies provides as a service. In light of the above, I find that Fiores proposed home business office use is protected under the Dover Amendment as an incidental use and, thus, no special permit is required. [Note 12]
II. Interpretation of the Easement.
Citing Beale v. Planning Bd. of Rockland, 423 Mass. 690 (1996), Fiore argues that the use of the Easement is protected by the Dover Amendment as an agricultural use. However, the degree to which the Easement is subject to zoning is not material in the case at bar as Plaintiffs object to Fiores use of the Easement not on zoning grounds, but based on their interpretation of the Easement as it was created in the Eskel Deed. The specific terms of the Easement, and not the protections afforded to it by the Dover Amendment, define the scope of the Easement in context of Fiores rights over Plaintiff Property. With respect to his rights in the Easement, Fiore asserts that (1) he has the right to use the Easement for the purposes of walking and riding horses, and (2) his employees, vendors, and business invitees have the right to access Defendant Property using the Easement. Plaintiffs seek to prohibit such uses on the grounds that they overburden the Easement.
As the party asserting the easement, Fiore has the burden of proving it exists. Boudreau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990). In construing a deed it is the duty of the court to ascertain the intent of the parties from the language used in the light of the surrounding circumstances. Brackett v. Pitcher, 296 Mass. 295 , 297 (1936). In this process, if such words are plain and free from ambiguity, they must be construed in accordance with their ordinary and usual sense. World Special List - Natural Features Registry Institute v. Reading, 75 Mass. App. Ct. 302 , 309 (2009) (citing Massachusetts Mun. Wholesale Elec. Co. v. Springfield, 49 Mass. App. Ct. 108 , 111 (2000)). However, parol evidence may be admissible where ambiguity exists. See Panikowski v. Giroux, 272 Mass. 580 , 583 (1930).
A. Whether the Easement Allows for Equestrian Use.
The language in the Easement refers to the easement . . . to the granted premises as a right-of-way, combined with the right to install and maintain underground utilities. In addition, the language in the Easement also references the expiration of rights in the Easement in the event that grantees should obtain the necessary approvals to construct a driveway running from Center Street. (emphasis supplied.) Moreover, there is no language to describe the Easement as a general right for all purposes. Rather, the language of the Easement is clear that its purpose is limited to provide Lot 2 access from King Street. There is nothing in the Easement to indicate any intent to grant equestrian rights in the Easement. As a result, I find that the Easement is to be used only as access to Defendant Property and not for equestrian purposes.
B. Whether the Easement is Limited to Owners of Defendant Property.
In arguing that the Easement may be used by his business invitees, Fiore relies on the language in the Eskel Deed that established the Easement for the benefit of the Eskels, their grantees, their executors, heirs and assigns . . . . However, this language does not qualify the scope of the Easement, but only clarifies that the Easement is appurtenant to Defendant Property and runs with the land. Fiore also asserts that the only restriction on the use of Defendant Property was that it was co-extensive with the right of Slimas (and her heirs, executors, and assigns) to use the Easement for her agricultural (blueberry) business and to access her other land. Plaintiffs, on the other hand, argue that the words for their use only in the Easement create a limited easement, the benefits of which are confined to personal use by the owners of Defendant Property (Fiore). [Note 13] In support of this theory, Plaintiffs point out that the deed of Defendant Property limited the use of Defendant Property during Slimas lifetime to one single-family residence with the necessary outbuildings.
The extent of an easement depends on the circumstances of its creation . . . . When created by conveyance, the grant or reservation must be construed with reference to all its terms and the then existing conditions so far as they are illuminating. Lowell v. Piper, 31 Mass. App. Ct. 225 , 230 (1991) (internal quotation omitted). Material to whether the scope of the Easement includes Fiores business invitees depends on this courts interpretation of the phrase for their use only. Clearly, this phrase carries some import. See J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789 , 795 (1986) ([E]very phrase and clause must be presumed to have been designedly employed, and must be given meaning and effect, whenever practicable, when construed with all the other phraseology contained in the instrument, which must be considered as a workable and harmonious means for carrying out and effectuating the intent of the parties.). However, the deed from Slimas to the Eskels is unclear that the Easement serves to exclude everyone but for the owners of the dominant and servient estates (owners of Defendant Property and Plaintiff Property), particularly in light of the limited restriction of Defendant Propertys use. Slimas only restricted the use of Defendant Property during her lifetime. As a result, for the last seventeen years, there have been no restrictions on such use. It appears unlikely that Slimas would intend to unduly restrict the access to Defendant Property after her restrictions on its use were no longer applicable. Given this ambiguity, this court shall expand its review to factors beyond the words of the Eskel Deed to ascertain the parties intent. See Panikowski, 272 Mass. at 583.
One such factor is the behavior of the parties subsequent to the conveyance. See Kesseler v. Bowditch, 223 Mass. 265 , 268 (1916) ([W]hen an easement is created by deed, but its precise limits . . . are not defined, the location and use of the easement by the owner of the dominant estate for many years, acquiesced in by the owner of the servient estate, will be deemed to be that which was intended to be conveyed by the deed.). In the case at bar, the Eskel Deed states that Defendant Property cannot be subdivided during Slimas lifetime, indicating that during that time period Eskels family would be the only ones authorized to use Defendant Property and the Easement as access. However, during the ownership of Defendant Property by the Eskels, the use of Defendant Property appeared to be expanded beyond the single-family use contemplated and expressly limited by Slimas, as the Eskels built the Barn with twelve stables in 1989, and others used the Easement as access to the Barn for purposes of boarding and riding horses. The record is clear as to Eskels intentions to create a farm, but unclear as to whether Slimas knew of Eskels plans to build the Barn and expand the use. Regardless, Slimas failed to oppose such use. It would thus appear, from looking at all of the facts, that Slimas contemplated that the Easement could be used for access to Defendant Property by all parties who had a right to use Defendant Property. Such access is not inconsistent with the use that Slimas herself made of the Easement, i.e. access by many other people to her blueberry orchard. [Note 14]
As a result of the foregoing, I find that the employees, customers, and business invitees of J & J Ponies and Hunters Haven may also use the Easement to access Defendant Property.
C. Whether the Easement is Overburdened.
Plaintiffs also argue that even if the Easement contemplated use by others than the owners of Defendant Property, such use of the Easement by Fiore is an overburdening of the Easement. The scope of the Easement is regulated by the intent of the parties as manifested by the language used in the grant. Commercial Wharf E. Condominium Assn v. Waterfront Parking Corp., 407 Mass. 123 , 138 (1990). Use of the easement in excess of that scope would overburden the Easement. It appears that the use of Defendant Property, and the Easement, has increased since Fiore took ownership of Defendant Property, but increased use alone is not the test of overburdening. Whether Fiores use overburdens his rights depends not on his use as compared to the Eskels, but rather Fiores use as compared to the scope of the Easement. As discussed, supra, the Easement conferred rights of access benefitting Lot 2, and was only limited during the lifetime of Slimas, which ended seventeen years ago. As such, the Easement confers to the owner of Defendant Property a general right of access from King Street benefitting Lot 2.
As a result of the foregoing, I find that Fiore has not overburdened the Easement.
Plaintiffs allege that the storage of manure on Defendant Property is a nuisance. However, this court does not have jurisdiction over such claim, as the claim does not relate to the right, title or interest in land contemplated by G. L. c. 185. As a result, I make no findings in this regard.
Judgment to enter accordingly.
Alexander H. Sands, III
Dated: August 27, 2010
[Note 1] While the Easements deeded width is fifty feet, the width of the existing paved portion of the Easement extends approximately eleven to twelve feet.
[Note 2] Eskel testified that he used a barter system for remuneration for boarding of horses and riding lessons.
[Note 3] Robyn Wright and Joseph Wright have since divorced, and Joseph Wright has moved away from Plaintiff Property. Robyn Wright and Joseph Wright deeded Plaintiff Property to Robyn Wright, Trustee of the 102 King Street Realty Trust, by deed dated November 3, 2006. Joseph Wright has not been removed as a Plaintiff in this case.
[Note 4] Fiore testified that J & J Ponies is effectively part of, and intertwined with, Hunters Haven.
[Note 5] Section 301.20 of the Groveland Zoning Bylaw (the Bylaw) allows for certain uses by special permit, and subsection 301.20.2 specifically permits customary home occupations conducted by resident occupants only, and not detrimental to a residential neighborhood.
[Note 6] This home office consists of a computer, a phone, and a filing cabinet in a portion (one-quarter) of one bedroom in Fiores residence on Defendant Property. Fiore, his wife, and his daughter have access to this space; Fiores employees do not have access to this office.
[Note 7] Plaintiffs Complaint asserted that Fiores commercial use of the Easement violated the Bylaw. However, in their Complaint, Plaintiffs did not expound on this theory or provide this court with any guidance as to how the Easement violated the Bylaw. In their Trial Brief, Plaintiffs did address the issue of whether the Dover Amendment applied to the Easement, in which they note that the Dover Amendment applies to zoning laws. Plaintiffs proceed to argue that the easement dispute in the case at bar is not restricted by zoning laws, but rather by the terms of the Easement. In their Trial Brief, Plaintiffs do not argue that the Easement violates the Bylaw. As such, this court shall not make a finding as to the Easement in context of the Bylaw.
[Note 8] The Bylaw defines a home occupation as
An occupation or profession which: is customarily carried on in a dwelling unit or in a building or other structure accessory to a dwelling unit . . . and is clearly incidental and secondary to the use of the dwelling for residential purposes; and which conforms to the following additional conditions: The occupation or profession shall be carried on wholly within the principal building or within a building or other structure accessory thereto . . . .
[Note 9] G. L. c. 61A involves the Assessment and Taxation of Agricultural and Horticultural Land. A footnote in Bateman v. Bd. of Appeals of Georgetown, 56 Mass. App. Ct. 236 , 243 n.9 (2002), indicates that the tax status of a parcel of land is but one factor in determining whether a parcel of land is agricultural.
[Note 10] The Dover Amendment states, in relevant part, that:
No zoning ordinance or by-law shall . . . prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture, horticulture, floriculture, or viticulture; nor prohibit, or unreasonably regulate, or require special permit for the use, expansion, or reconstruction of existing structures thereon for the primary purpose of agriculture . . . .
[Note 11] BLACKS LAW DICTIONARY 124 (7th ed.) defines the term attendant as [a]ccompanying; resulting. BLACKS defines the term concomitant is defined as [a]ccompanying; incidental. Id. at 284.
[Note 12] As a result of the foregoing, it is irrelevant whether the office use associated with J & J Ponies is a home occupation, as such term is defined in the Bylaw. That said, this court disagrees with Plaintiffs argument that the entire scope of J & J Ponies operations must be considered when issuing a home occupation special permit. Rather, the appropriate review centers on whether the entirety of the proposed home business office may be carried on wholly within the principal building . . . . The record demonstrates that Fiores proposed use satisfies this condition.
[Note 13] Joseph Eskel testified that the two reasons for the deed language for their use only was that Slimas did not want Defendant Property subdivided while she was alive and that she intended that the Easement be used only for the benefit of Defendant Property.
[Note 14] Moreover,[i]n the absence of language to the contrary, easements are presumed to be nonexclusive and doubts are to be resolved in favor of freedom of land from servitude. Matthews v. Planning Bd. of Brewster, 72 Mass. App. Ct. 456 , 466 n. 11 (2008)(citing Butler v. Haley Greystone Corp., 352 Mass. 252 , 258 (1967)).