Home JEANNE H. DAVIS, individually and as Administratrix of the ESTATE OF KATHLEEN E. WILLIAMS and JANICE G. WILLIAMS, individually vs. TOWN OF DUDLEY, MASSACHUSETTS; TOWN OF DUDLEY PLANNING BOARD, and JOHN T. MURPHY, CHRISTOPHER R. DAGGETT, DANIEL T. O’CONNOR, MARK MARZEOTTI, and CHRISTOPHER R. REICH, members; and NICHOLS COLLEGE

MISC 08-382105

August 26, 2011

Sands, J.

JUDGMENT

Plaintiffs Jeanne H. Davis individually and as administratrix of the Estate of Kathleen E. Williams (“Davis”) and Janice G. Williams (“Williams”) (together, “Plaintiffs”) filed their Verified Complaint on July 18, 2008, (1) appealing, pursuant to the provisions of G. L. c. 40A, § 17, Defendant Town of Dudley Planning Board’s (the “Planning Board”) approval of an application for Major Site Plan Review (the “Site Plan Approval”) for a parking lot filed by Defendant Nichols College (“Nichols”) pertaining to property located on a portion of Lot B, Healy Road in Dudley, Massachusetts (“Locus”) [Note 1] [Note 2], (2) alleging nuisance and trespass by drainage water onto Plaintiff Property, [Note 3] and (3) alleging trespass and encroachment upon a parcel of land which Plaintiffs allege they own (the “Disputed Parcel”). [Note 4] [Note 5] The Planning Board filed its Answer on August 12, 2008. A case management conference was held on October 22, 2008. Nichols filed its Answer on July 24, 2009. A pre-trial conference was held on April 7, 2010. A site view and the first day of trial at the Worcester District Court were held on September 13, 2010. The second and third days of trial were held at the Land Court in Boston on September 14 and 15, 2010. Post-trial briefs were filed on December 17, 2010, at which time the matter was taken under advisement. A Decision of today’s date (the “Decision”) has been rendered. In accordance with the Decision it is:

ORDERED and ADJUDGED that the Disputed Parcel is owned by the Town and is not a part of the APR. Consequently, Plaintiffs cannot bring a trespass action against Nichols on a parcel of land which they do not own.

ORDERED and ADJUDGED that the Planning Board applied the proper standard of review relative to drainage.

ORDERED and ADJUDGED that the Site Plan Approval was not made arbitrary, capricious, or unreasonable by the storm event standards applied in Drainage Analysis 2.

ORDERED and ADJUDGED that the size of the sub-watershed considered in Drainage Analysis 2 did not make the Site Plan Approval arbitrary, capricious, or unreasonable.

ORDERED and ADJUDGED that the Site Plan Approval was not arbitrary, capricious, or unreasonable on the basis of the detention basin design.

ORDERED and ADJUDGED that it was not arbitrary, capricious, or unreasonable for the Planning Board to find that the Bylaw was satisfied by the Revised Site Plans and Drainage Analysis 2.

ORDERED and ADJUDGED that the lighting proposed in the Revised Site Plans did not make the Site Plan Approval arbitrary, capricious, or unreasonable.

ORDERED and ADJUDGED that the Site Plan Approval is not arbitrary, capricious, or unreasonable.

By the court. (Sands, J.)

FOOTNOTES

[Note 1] Locus is defined in the Drainage Analysis, as hereinafter defined, as “a mature wooded lot adjacent to an existing parking area. The sub-watershed analyzed is approximately 1.5 acres. The parcel slopes from east to west at a 12% slope.”

[Note 2] Nichols’ application for Major Site Plan Review included plans titled “Nichols College Parking Facility Expansion” and a Drainage Analysis for Parking Expansion (the “Drainage Analysis”) dated May 9, 2008 and prepared by Hannigan Engineering, Inc. (“Hannigan”). The Planning Board hired Graves Engineering, Inc. (“Graves”) for peer review of the plans and the Drainage Analysis. The Site Plans were revised pursuant to the comments from Graves (the “Revised Site Plans”), and such revisions were dated June 5, 2008. Pursuant to Graves’ comments, a revised Drainage Analysis for Parking Expansion, dated June 5, 2008, (“Drainage Analysis 2”) was also prepared by Hannigan. The Site Plan Approval relied in part on the Revised Site Plans and Drainage Analysis 2.

[Note 3] Plaintiffs filed a Dismissal of Count II (alleging nuisance and trespass on their properties) on August 3, 2010.

[Note 4] The Disputed Parcel contains 8,399.2 square feet and is a portion of a conveyance of land from Mary B. Goodell to the Town of Dudley (the “Town”) by deed dated August 27, 1935, and recorded with the Worcester County Registry of Deeds (the “Registry”) in Book 2651, Page 272. By Commonwealth of Massachusetts Agricultural Preservation Restriction dated November 22, 1996 (the “APR”), and recorded with the Registry at Book 18629, Page 48, certain property was submitted to agricultural restrictions, which property Plaintiffs allege includes the Disputed Parcel. The APR is part of the basis of Plaintiffs’ claim to title of the Disputed Parcel.

[Note 5] Peter T. Clark, Esq. filed a Motion to Withdraw as attorney for Plaintiffs on July 28, 2009, which was allowed on July 31, 2009. E. John Anastasi, Esq. and Michael P. Patnaude, Esq. filed a Motion to Withdraw as attorneys for Plaintiffs on March 29, 2010, which was allowed on April 7, 2010.