SPROCKET REALTY, LLC v. WENDY'S INTERNATIONAL, INC., COYOTE REALTY, LLC, and DOUREEN PROUTY, JAMES MARMO, and GARY SUFFRITI, as MEMBERS OF THE ZONING BOARD OF THE TOWN OF AGAWAM

Plaintiff, Sprocket Realty, LLC (Sprocket), filed this appeal pursuant to G. L. c. 40A, § 17, on October 13, 2010, appealing from a decision (Decision) of the Town of Agawam Zoning Board (Board). The Decision granted a special permit to Wendy’s International (Wendy’s), allowing Wendy’s to operate a restaurant with drive-through service windows at 1340 Springfield Street, Agawam, on property owned by Coyote Realty, LLC (Coyote). Sprocket’s challenge to the Board’s decision, is based upon Plaintiff’s claim that it has prescriptive rights of access and parking on and over a portion of the Coyote property. Sprocket’s complaint also contains a count whereby it seeks to establish a prescriptive easement over Coyote’s Property. Defendant Board members filed an answer on November 5, 2010, asserting various affirmative defenses and a counterclaim pursuant to G. L. c. 231, § 6F. An answer by Coyote was also filed which included a multitude of affirmative defenses and counterclaims pertaining to G. L. c. 231, § 6F, slander of title, interference with a business relationship, and violation of G. L. c. 93A. On December 16, 2010, Wendy’s filed an answer setting forth affirmative defenses and stating that the appropriate party is Wendy’s Old Fashioned Hamburgers of New York, Inc., the intended operator of the proposed restaurant. The applicant for the special permit, however, was Wendy’s. [Note 1]

A two-day trial was held on September 26 and 27, 2011, with the first day of trial held at Westfield District Court and the second day held in Boston. A stenographer was sworn to transcribe the testimony. At trial this court heard the testimony of Donald Hanson, employee at Col-East Incorporated, a company that specializes in aerial photography for topographic maps, Robert St. Marie, owner of Feeding Hills Pharmacy (Pharmacy), Norman Beals, Donna Bellefleur, Barbara Chase, Carolyn Dorval, and David Wiley, employees of the Pharmacy, Robert Cheney, Pharmacy customer, and Spero Philips, owner of Phipps Liquor Store, all part of Plaintiff’s case-in-chief. Thomas Wilson, general contractor hired by Coyote, William Wagner, employee of a bank located at 1340 Springfield Street, and James M. LeFebvre, owner of Coyote, testified for Coyote. The Board and Wendy’s did not proffer any witnesses. Thirty-two exhibits were entered in evidence and a chalk was used by several witnesses. [Note 2] All parties except Wendy’s filed post-trial briefs by December 2, 2011. [Note 3]

Based on all the evidence and reasonable inferences drawn therefrom, as well as the arguments contained in the parties’ post-trial briefs, this court finds the following material facts:

1. The area over which Plaintiff claims a prescriptive easement for access and parking is an area “along and over approximately fifty feet on the westerly side of the Coyote Parcel.” (Disputed Area). [Note 4]

2. Sprocket owns the property located at 1350 Springfield Street, Agawam (Sprocket Parcel or 1350 Springfield Street). The deed into Sprocket is dated June 18, 2008, and is recorded with the Hampden County Registry of Deeds (Registry) in Book 17352, at Page 491. [Note 5] Phipps Liquor Store currently occupies the Sprocket Parcel. Spero Philips owns both Sprocket and the Phipps Liquor Store. When he purchased the Sprocket Parcel, he knew that the purchase did not include what is referred to in this action as the Disputed Area.

3. Prior to Sprocket purchasing 1350 Springfield Street, the Pharmacy had been located there. The Pharmacy was owned by Robert J. St. Marie (Robert St. Marie) and Nelson W. St. Marie (Nelson St. Marie), who purchased the property by deed dated March 10, 1967, recorded in Book 3246, at Page 146. On January 1, 1994, Robert St. Marie and Nelson St. Marie deeded 1350 Springfield Street to St. Marie Enterprises, Inc., by deed recorded in Book 8700, at Page 499, Sprocket’s immediate predecessor-in-title.

4. The building on the Sprocket Parcel was constructed in 1968 and the Pharmacy occupied that building from 1968 through 1993. The hours of operation of the Pharmacy were Monday through Friday 8:00 A.M. to 9:00 P.M., Saturdays 8:00 A.M. to 6:00 P.M., and Sundays and holidays 8:00 A.M. to 1:00 P.M. 5. When the Pharmacy closed in 1993, Robert St. Marie leased the property to Stop & Shop. The Sprocket Parcel was vacant from the closure of the Pharmacy until December 19, 1996, when Spero Philips opened Phipps Liquor Store.

6. Defendant Coyote purchased the property at 1340 Springfield Street (Coyote Parcel or 1340 Springfield Street) by deed dated February 3, 2004, recorded in Book 13956, at Page 80. The grantors in the deed were Paul L. LeFebvre and James LeFebvre, Trustees of Lone Coyote Realty Trust, who had purchased the property in 1999. When they purchased in 1999, there was no assertion by Sprocket of any claims for prescriptive rights. Beginning in 1999, Mr. Philips and the people involved in the Coyote entities recognized that it was in their mutual interest to maintain a flow of vehicular and pedestrian traffic between their businesses. Their relationship was cordial. Mr. Philips parked his car by the road within the Disputed Area when he was at work so he could keep an eye on his car from a window at the front of liquor store.

7. Prior to Coyote purchasing 1340 Springfield Street, two buildings occupied the Coyote Parcel. A bank, originally known as Western Bank Trust, which later became Park West Bank (Bank), was located in the large building closest to Springfield Street from approximately 1970 to 2008 or 2009. Various businesses were located in a building built in 1974 or 1975 toward the rear of the Coyote Parcel, numbered 1342 Springfield Street. [Note 6] Prior to the Bank’s opening in 1970, the Coyote Parcel had been undeveloped and unpaved.

8. When the Bank opened and its parking lot was paved, there was some paving connecting part of the Bank’s parking lot on the Coyote Parcel and the Pharmacy’s parking lot on the Sprocket Parcel. There was, however, an unpaved area of undetermined dimensions, between and along a portion of the two paved areas. The unpaved area was paved in connection with the construction of the 1342 Springfield Street building in the mid 1970’s. The buildings were demolished after the Bank left in 2008 or 2009 and the Coyote Parcel is currently a vacant lot.

9. The Bank operated from 9:00 A.M. to 3:00 P.M. Monday through Wednesday with a drive-through window that remained open until 4:00 P.M. On Thursdays and Fridays the Bank was open from 9:00 A.M. to 4:00 P.M. and reopened from 6:30 P.M. to 8:00 P.M. Beginning in 1973 the Bank was also open on Saturdays from 9:00 A.M. to 1:00 P.M.

10. 1350 Springfield Street abuts the western portion of 1340 Springfield Street and the boundary between the properties is currently demarcated by a chain link fence, which was erected by Coyote in 2010 in connection with removal of its parking lot.

11. There were never any signs directing the Pharmacy employees, customers, or delivery persons where to park, nor were there signs erected by the Bank prohibiting parking by customers not patronizing the Bank or other businesses on the Coyote Parcel. People shopping or banking at the buildings on the adjacent parcels often would park in one parking area and visit both properties, without moving their cars. There was no way to distinguish the parked cars from one another or to identify which cars belonged to which customers or employees.

12. From time to time, Pharmacy and Bank employees would park in the Disputed Area along with customers who patronized the Pharmacy, Bank, and other businesses on the 1340 Springfield Street property.

13. From time to time, small delivery vehicles for the Pharmacy would also park in the Disputed Area and larger trucks sometimes used that area to maneuver their vehicles in order to back up adjacent to the rear of the Pharmacy.

14. Robert St. Marie was the owner of the Pharmacy from 1968 to 1993. He testified that he instructed his employees to park on the Sprocket Parcel, near the rear of the Pharmacy.

15. Norman Beals worked at the Pharmacy from 1968 through 1987 and worked Wednesday and Friday evenings from 5:00 P.M. to 9:00 P.M., every third Saturday from 8:00 A.M. to 6:00 P.M., and holidays from 8:00 A.M. to 1:00 P.M. He and some other employees parked in the striped spaces of the Bank’s parking lot during the evening hours for approximately seventeen years beginning in 1970 or 71, when the Bank opened. During his daytime shift he and other employees sometimes parked in those spaces only when there were none available near the Pharmacy. At night, he parked in a particular space within the Disputed Area because it was lit and offered some security for him when he closed the store.

16. Barbara Chase was an employee of the Pharmacy and worked there from 1969 through 1993. She worked weekdays from 9:00 A.M. to 2:00 P.M., and beginning in 1975 or 1976 worked from 9:00 A.M. to 3:00 P.M or 4:00 P.M. She parked in the Disputed Area when the Pharmacy parking lot was full and noticed other employees, customers, and delivery trucks parking in that area as well. She also parked in the Disputed Area when patronizing businesses on the Coyote Parcel. Sometimes she had business on both properties.

17. Donna Bellafleur was a Pharmacy employee and worked there from 1983 to 1993. She began working only a few hours per week, working half days, and then progressed to working 30 hours per week, approximately 8:00 A. M. to 2:00 P.M. or 3:00 P.M. When a clerk, she worked at the front of the Pharmacy and was able to see the Disputed Area from the window. When she worked as a technician, she worked in the back of the building and no longer had visual access from her work station, but did leave the building more often to make deliveries for the Pharmacy. Some weeks she did as many as four to five deliveries a week and other weeks there were none. When returning from making deliveries in the afternoons she sometimes parked in the Disputed Area and occasionally saw other employees’ cars parked there.

18. David Wiley was a Pharmacy employee who worked there from 1968 through 1977. He usually worked from 2:00 P.M. to 9:00 P.M., “most nights” as a clerk. When working, he usually parked toward the back of the Pharmacy building. He saw employees park in the Disputed Area “frequently” beginning in the early 1970s. As a customer of the Pharmacy, and the Bank and the lounge on the Coyote Parcel he would park in the Disputed Area.

19.Carolyn Dorval worked at the Pharmacy from 1976 to 1993 as a clerk on Mondays. In the beginning of her employment she worked from 9:00 A.M. to 2:00 P.M., and then began to work from 9:00 A.M. to 5:00 P.M. [Note 7] Ms. Dorval “very seldom” parked in what she and others called the “middle area,” referring roughly to the boundary line between the properties. She and other Pharmacy employees tried to park closer to the Pharmacy building, toward the rear of the lot. Also, she did “not really” see other employees park in the Disputed Area.

19. William Wagner was an employee of Western Bank and Trust (later known as Park West Bank, and Westbank), from about 1971 to 1983 or 1984, and was in charge of branch administration or bank operations. He became most familiar with the Bank at the Coyote Parcel, when the branch officer for the Bank located there fell ill and Mr. Wagner worked in the branch for a two or three month period until a replacement was found.

20. Robert Cheney was a customer of the Pharmacy beginning in 1975 when he moved to the Feeding Hills village of Agawam. He did not go to the Pharmacy “very often” from 1975 to 1983, but from 1983 to1984, he frequented the Pharmacy “at least once a month.” He parked in the Disputed Area just to the west of the lined spaces if the parking spaces in front of the Pharmacy were full.

21. In 2009, for a previous project never built on the Coyote Property, the Agawam Conservation Commission (Commission) issued an Order of Conditions (Order) pursuant to the Massachusetts Wetlands Protection Act, G. L. c. 131, § 40. The Order was amended by the Commission on August 12, 2010, to allow for the construction of a Wendy’s at the site. The Amended Order of Conditions requires that Coyote maintain a pervious drainage swale within the Disputed Area to be used as drainage for land toward the rear of the boundary between the Coyote Parcel and the Sprocket Parcel. In connection with the Order of Conditions, in 2010, Coyote removed asphalt previously on the Disputed Area and fenced the boundary between the properties. The swale prevents vehicles from traveling between the Sprocket and Coyote Parcels.

22. Wendy’s applied for and obtained site plan approval from the Agawam Planning Board on August 19, 2010, after which Wendy’s applied for a special permit in order to build and operate a drive-through restaurant. The special permit was granted on September 27, 2010, when Sprocket appealed the Board’s decision, asserting prescriptive rights over the Coyote Parcel.

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I. Prescriptive Easements for Access and Parking

An easement by prescription over land of another requires a use that is open, notorious, continuous and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Labounty v. Vickers, 352 Mass. 337 (1967). Unlike adverse possession, “[i]t is not necessary . . . for one claiming an easement by prescription to show that his use has been ‘exclusive’ in that sense. [Rather] [h]e must show that his use has been exclusive in the sense that he relies on his own use or those under whom he claims and not on the use by third parties.” Labounty, 352 Mass. at 349. The claimant asserting such easement must provide sufficient evidence for each of the elements otherwise his or her claim fails. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44-45 (2007); Gadreault v. Hillman, 317 Mass. 656 , 661 (1945). However, “[w]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003).

A. Sprocket has Failed to Establish a Prescriptive Easement for Access

Sprocket first claims a prescriptive easement for access through the entrance to the Coyote Parcel from Springfield Street, to and over the Disputed Area for its employees, customers and people delivering supplies to the Sprocket Parcel. The testimony at trial with respect to the access easement focused on delivery trucks. As an initial matter, Mr. St. Marie testified that he did not instruct delivery people to use the entrance to the Coyote Parcel, or the Disputed Area. Based on the evidence, Sprocket has not met its burden of proving a prescriptive easement for access because the testimony failed to establish each of the elements necessary to find and rule that Sprocket is entitled to such an easement. To support its claim for a prescriptive easement for access, Sprocket offered the testimony of four witnesses who testified regarding the use of the entrance by delivery trucks.

Barbara Chase, a Pharmacy employee from 1969 to 1993 and Donna Bellafleur, an employee from 1983 to 1993, testified that they saw large delivery trucks for the Pharmacy enter though the Coyote Parcel entrance and proceed to the Sprocket Parcel. Ms. Chase stated the delivery trucks used the Coyote Parcel entrance “wherever there was room – if they had to come in by the bank, they came in by the bank . . .”, while Ms. Bellafleur testified she saw the McKesson delivery person enter through the Coyote Parcel several times a week. Robert St. Marie, owner of the Pharmacy, initially testified that he saw delivery trucks enter through the entrance on the Coyote Parcel, but on cross-examination he capitulated, stating he “can’t say” he ever “[s]aw any trucks coming in through any other entrance [other than the entrance to the Sprocket Parcel].” He conceded that the McKesson delivery man could have entered onto the Sprocket Parcel without using the Coyote entrance at all, which was consistent with the testimony of Ms. Dorval, who saw the McKesson truck come through the Sprocket Parcel entrance to make deliveries to the Pharmacy.

Thus, Plaintiff’s witnesses were contradictory. Even if this court fully credits the testimony of Ms. Chase and Ms. Bellafleur, Sprocket fails to prove the existence of a prescriptive easement. It is a well settled principle that a claimant must prove the easement has existed uninterrupted for a twenty year period, Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003), and acts of possession that are “few, intermittent and equivocal” are insufficient. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). The testimony does not establish the frequency of such alleged use nor the continuity of use for the requisite period of twenty years. [Note 8] In addition, the access route used from time to time by delivery trucks was not at the direction or under the control of the Pharmacy, according to Mr. St. Marie. [Note 9]

B. Sprocket has Failed to Establish a Prescriptive Easement for Parking

While the testimony proffered by Sprocket to support a claim for a prescriptive easement for parking within the Disputed Area is more expansive than that offered in support of an access easement, Sprocket did not establish such easement because any parking by customers and employees of the Pharmacy was not notorious for the requisite twenty years. Also, any sporadic parking by customers or employees was not done at the direction of the Pharmacy or anyone else having ownership or control of the Sprocket Parcel, so any rights would not be appurtenant to and enforceable by the owners of the Sprocket Parcel. [Note 10]

“The requirement frequently stated[,] that in order to create a prescriptive right the use must be ‘open and notorious[,]’ is intended only to secure to the owner [of the affected land] a fair chance of protecting” his or her property interests. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007) (quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955)) (internal quotation marks omitted). “To be ‘open,’ the use must be without attempted concealment,” and to be notorious the use must be “sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Id. Actual knowledge by the landowner is not required. Id. Rather, “[i]t is enough that the use be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use.” Id. "The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Tinker v. Bessel, 213 Mass. 74 , 76 (1912).

Here, eight witnesses testifed as to parking within or near the Disputed Area by the general public as well as some parking by employees of the Pharmacy. The testimony established, at best, occasional parking by employees during the days, and perhaps more frequent parking in the evenings, but not for the requisite twenty-year period. The location of the parking was sometimes defined, when the witness referenced the stripped spaces on the Coyote Parcel, but was more often vague, when witnesses spoke of parking “in the middle” of the paved area, or within the “center part,” referring to the general boundary area between the properties. Several of the witnesses agreed that they saw some customers parking within the Disputed Area, but it was not possible to tell whether those customers were also patronizing the businesses on the Coyote Parcel as well as the Pharmacy during their visit. Likewise, these witnesses stated that they, as customers, would also park on either the Sprocket Parcel or the Coyote Parcel, including within the Disputed Area, in order to complete several errrands in one visit, travelling by foot from one parcel to the other. All of the witnesses who spoke to the issue of signage agreed that there were no signs either directing Pharmacy customers to park on the Coyote Parcel or prohibiting such parking.

While there was credible testimony that there was parking from time to time by customers primarily, and sometimes by employees of the Pharmacy, there was no direction by the Pharmacy to its customers or delivery people to use or park within the Disputed Area. To the contrary, there was specific direction by the Pharmacy management to its employees to park adjacent to the Pharmacy, near the rear, presumably to leave the other spaces near the front of the building for customers. The Disputed Area was used for parking by Pharmacy customers, Bank customers, and patrons of the other business at the Coyote Parcel and there was no way to differentiate whose car was parked where.

The element of notoriety requires that the adverse acts “must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises.” Lawrence v. Town of Concord, 439 Mass. 416 , 420 (2003) (quoting 2 AMERICAN LAW OF PROPERTY § 8.56 (Casner ed. 1952)). Here, parking in the Disputed Area is not sufficiently frequent or obvious to put the landowner of the Coyote Parcel on notice that an adverse use was being made of his property because the landowner would not be able to discern, based on viewing cars parked within the Disputed Area, which businesses the owners of those vehicles patronized. See Boston Seaman’s Friend Society, Inc. v. Rifkin Management, Inc., 19 Mass. App. Ct. 248 , 251 fn.2 (1985). While this is less true during the evening hours, when the Bank was closed, evening use was not proven for the requisite prescriptive period. Also, there were other businesses on the Coyote Parcel which could have been the destination of the people who parked within the Disputed Area in the evening.

When a party is tasked with proving prescriptive rights, specificity of location is an element of the proof necessary and it was lacking in this case. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 (2007). The witnesses’ credible testimony lacks specificity as to where customers and employees of the Pharmacy would park on the Coyote Parcel. General statements regarding observations of employees and customers parking “in the middle” or in “the center part” without more are insufficient to meet the standard of proof necessary to carry Plaintiff’s burden.

Lastly, Sprocket urges that “[w]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003) (citations omitted). Defendant Coyote, however, argues that such use can be explained as neighborly accomodation between abutting commercial landowners. In Houghton v. Johnson, the Appeals Court addressed the concept of “neighborly accomodation” stating that the lower court judge, when using such phrase to negate the adversity element, was not applying a new principle of law, but rather determining whether alleged adverse use was notorious. 71 Mass. App. Ct. 825 , 842 (2008). In order for an easement to be adverse, the Appeals Court continued, the intention to claim a piece of land as of right must be “manifest by acts of clear and unequivocal character that notice to the owner of the claim might be reasonably inferred” and neighborly accomodation negates such notoriety. Id. (quoting JONES, EASEMENTS, § 289, at 238 (1898) (internal quotation marks omitted).

Here, neighborly accomodation was consistent with the relationshiop between the owners of the abutting properties. Such accomodation was reasonable given the fact that the two properties were largely connected by pavement from at least 1974 or 1975 to 2010, [Note 11] allowing customers to patronize more than one business without moving their vehicles, and that employees of the two major commercial entities (the Pharmacy and the Bank) frequented each other’s businesses. The testimony of witnesses proferred by both parties supports an inference that, to the extent the owners of the Coyote Parcel knew or should have known of parking on their land by Pharmacy customers or employees (who were not also frequenting a business on the Coyote Parcel), it was mutually understood by the abutting landowners that such parking was permissive and not adverse.

For the reasons expressed above, this court concludes that Sprocket has failed to establish prescriptive easements burdening the Coyote Parcel for access and parking, and, consequently, is unsuccessful in its appeal of the Board’s Decision. Consistent with these findings, judgment will enter establishing that Coyote holds title to the Disputed Area free of any such claimed right, title and interest of Sprocket and those holding by, through, or under it, and affirming the Board’s Decision. [Note 12]