The Plaintiffs, Calvin and Doris Overlock (Overlock), own property located at 37 Dillingham Avenue, Berkley, Massachusetts. Overlook filed a complaint in Bristol Superior Court on May 1, 2009, alleged two counts against the Defendants. The first count is an appeal of a determination by the Planning Board, pursuant to G. L. c. 41, § 81BB, arguing that the approval of the Developers subdivision plan exceed the Planning Boards authority. In the second count Overlook seeks a declaratory judgment from the court as to the right duty, and status of each of the parties in and to the disputed portion of Dillingham Avenue.
In an order dated October 1, 2009, Justice Merita A. Hopkins of the Bristol Superior Court granted an assented to motion to have the case transferred to the Land Court. After Chief Justice of the Land Court, Karyn F. Sheier, determined that this case did not meet the requirements of the permit session pursuant to G. L. c. 185, § 3A. A motion to re-transfer the case back to Bristol Superior Court, was denied by this court on July 6, 2010. A view of the locus was taken on October 14, 2010, by the court with attorneys from both parties present. Following the view, a one day trial was held on October 21, 2010. Both parties filed their post-trial briefs with the court on February 11, 2011.
A decision entered for this case on this date, where this court determined that the Defendants has an easement by necessity across Overlooks property to access their proposed development. Since there is an easement by necessity over the Overlocks property, the Town of Berkley Planning Boards approval of the Defendants plan condition on the use, improvement and maintenance of Dillingham Avenue did not exceed the Boards authority. It is ORDERED and ADJUDGED that this action be, and is hereby, dismissed with prejudice.
So Ordered
By the Court. (Trombly, J.)
CALVIN C. OVERLOCK and DORIS T. OVERLOCK v. STEVEN LEARY, DONNA LEARY, PAUL BOUCHER, VALERIE MURRAY and BYRON HOLMES, as they are Members of the Town of Berkley Planning Board; COMPONENT PROPERTIES, INC.; D. CHRISTOPHER CROSS, and SUSAN BARKER CROSS, as TRUSTEES OF THE KIMBECK REALTY TRUST