SHAWKEMO DUCKLANDS LLC vs. FRANCIS T. SPRIGGS, SYLVIA HOWARD, NATHANIEL LOWELL, BARRY RECTOR, and JOHN McLAUGHLIN, as they are members of the TOWN OF NANTUCKET PLANNING BOARD, and DIANE HALM, TRUSTEE OF SEE TERRIER FARMS TRUST

Plaintiff Shawkemo Ducklands, LLC ("Shawkemo") filed its unverified Complaint in 07 MISC 355356 on September 21, 2007, appealing pursuant to G. L. c. 41, § 81BB, a decision of Defendant Nantucket Planning Board (the "Planning Board") approving a nine-lot subdivision (the "Subdivision") off a right of way ("Gardner Road") in Nantucket, MA, filed by Defendant Diane Halm, Trustee of the See Terrier Farms Trust (the "Trust") (together with the Planning Board, "Defendants"). Shawkemo's Complaint also seeks a declaratory judgment, pursuant to G. L. c. 231A, as to the Trust's rights in Gardner Road which is located in part on property owned by Shawkemo, and that the Subdivision overburdens Gardner Road. Finally, Shawkemo seeks injunctive relief as to any work proposed to be done by the Trust on property of Shawkemo. The Planning Board filed its Answer on October 16, 2007, and the Trust filed its Answer on October 17, 2007.

Plaintiffs Nantucket Land Council, Inc. ("NLC"), Paul Bennett ("Bennett"), Richard Glidden, Trustee, Kathleen McGrady, Moors End Farm, LLC ("Moors End"), and the Shimmo Association, Inc. ("Shimmo," and together the "Abutters," and together with Shawkemo, "Plaintiffs") filed their unverified Complaint in 07 MISC 355513 on September 26, 2007, appealing pursuant to G. L. c. 41, § 81BB, the approval of the Subdivision. The Planning Board filed its Answer on October 17, 2007, and the Trust filed its Answer on October 29, 2007.

A case management conference in both cases was held on November 9, 2007, at which time the two cases were consolidated. On March 21, 2008, Shawkemo filed its Motion for Partial Summary Judgment seeking a ruling on the Trust's rights in Gardner Road with respect to the Subdivision, together with supporting memorandum, Statement of Facts, Appendix, Affidavits of Alison Zieff (two), Diane Holdgate, Stephen M. Slosek, Bracebridge Young "Young"), Sarah F. Alger, Bennett, and Edward Woll, Jr., and deposition transcript of Daniel Mulloy ("Mulloy"). On the same day, the Trust filed its Motion for Partial Summary Judgment seeking a ruling that the Trust has a registered access right of way over Gardner Road, and the right to improve Gardner Road and install utilities, together with supporting memorandum, Appendix, and Affidavit of Catherine Flanagan Stover ("Stover"). Shawkemo filed its Opposition on April 17, 2008, together with Motion to Strike Affidavit of Stover and certain exhibits, and Affidavits of Stephen D. Matson, P. E., Young (second), and Edward Woll, Jr. (second). On the same day, the Trust filed its Opposition, together with supporting memorandum and a second copy of Stover's Affidavit. On May 2, 2008, the Trust filed its Reply Brief, Opposition to Motion to Strike Affidavit of Stover and certain exhibits, and Shawkemo filed its Reply Brief. On May 12, 2008, all motions were heard and taken under advisement. [Note 1] A decision ("Land Court Decision 1") was issued on October 13, 2009, which held that 1) the Trust has the benefit of a registered, thirty-three foot wide easement over Gardner Road as access to Polpis Road (the "Easement"), as described in a 1927 Certificate of Registration (the "1927 Certificate") as part of Registration Case Number 12268, dated November 11, 1927, and 2) the Trust's registered easement over Gardner Road applies to the entire thirty-three foot width of Gardner Road as shown on "Plan of Land in Nantucket" dated January 18, 1927, and prepared by William F. Swift, Civil Engineer (Registration Plan 12268A) (the "1927 Plan") and "Plan of Land in Nantucket" dated May 1931, and prepared by William F. Swift, Surveyor (Registration Plan 14889A) (the "1931 Plan"). This court also found, however, that there were issues of fact relative to the extent of the Trust's right to pave and re-grade Gardner Road, as well as whether the Trust has the right to install utilities in, on, along, under and upon Gardner Road pursuant to G. L. c. 187, § 5. In addition, this court did not address the issue of whether the Planning Board's approval of the Subdivision was beyond the scope of authority of the Planning Board. On October 23, 2009, Plaintiffs filed a Motion for Reconsideration. At a status conference held on November 3, 2009, this court DENIED Plaintiffs' Motion for Reconsideration. On November 20, 2009, Plaintiffs filed a Motion for Remand to the Planning Board, and by Order dated December 23, 2009, this court DENIED the Motion for Remand.

A pre-trial conference was held on May 19, 2010. Additional discovery was requested, and by Order dated September 30, 2010, this court addressed several Motions in Limine relative to the trial in which it ruled that it would not allow evidence at trial relative to a) the use of the westerly portion of Gardner Road which was not a part of the Subdivision Approval, and b) wetlands issues. A second pre-trial conference was held on October 26, 2010. A site view and the first day of trial at the Nantucket Superior Court was held on March 30, 2011. Succeeding days of trial were held at the Land Court in Boston on March 31, April 1, July 7, July 8, August 16, and November 17, 2011. The parties filed their post-trial briefs on January 27, 2012, and at that time the matter was taken under advisement. [Note 2]

Testimony at trial was given by Catherine Stover (Nantucket Town Clerk), Mohamed Nabulsi (representative of Nantucket Department of Public Works), Robert Emack ("Emack") (Plaintiffs' surveyor), Leo Asadoorian (Plaintiffs' surveyor), Mark McDougall ("McDougall") (Nantucket Fire Chief), Bennett (neighbor), Sam Slosek ("Slosek") (neighbor), Young (neighbor), Emily MacKinnon (environmentalist), William Shaw ("Shaw") (Plaintiffs' civil engineer), Sarah Alger (Plaintiffs' title attorney), Jennifer Conley ("Conley") (Plaintiffs' traffic engineer), Mark Haley (Plaintiffs' environmentalist), Cormac Collier ("Collier") (Executive Director of NLC), Scott Horsley ("Horsley") (Plaintiffs' environmentalist), Stephen Slosek (neighbor), Mulloy (site design engineer for the Trust), Edward Pesce ("Pesce") (Nantucket peer review for the Planning Board), and Lloyd Bristol (traffic engineer for the Trust). Shaw and Horsley were rebuttal witnesses. Forty-four exhibits were submitted into evidence, some in multiple counterparts.

Based on the sworn pleadings, the evidence submitted both in the summary judgment motions and at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Shawkemo owns property located at 7 Shawkemo Road, Nantucket, Massachusetts (the "Shawkemo Property"). The Shawkemo Property consists of three parcels of registered land ("Parcel One," "Parcel Two," and "Parcel Three") as shown on the following three plans: (1) a plan titled "Plan of Land in Nantucket" dated June 1, 1973, and prepared by Josiah S. Barrett, Surveyor (Registration Plan 38042A) (the "1973 Plan"); (2) the 1931 Plan; and (3) a plan titled "Subdivision Plan of Land in Nantucket" dated June 20, 1977, and prepared by Schofield Brothers, Inc., Surveyors (Registration Plan 13364I). Parcel One is shown on the 1973 Plan, Parcel Two is shown as Lot B on the 1931 Plan, and Parcel Three is shown as Lot 10 on the Plan dated June 20, 1977. [Note 3] Parcel One abuts Gardner Road and Parcel Two contains a portion of Gardner Road, as shown on the 1931 Plan and the 1973 Plan. [Note 4] The 1973 Plan shows the portion of Gardner Road abutting Parcel One as a public road (approximately thirty-three feet wide).

2. Pursuant to Transfer Certificate of Title Number 20598 (the "Shawkemo Certificate"), Registration Case Number 38042, Shawkemo obtained a fee simple interest in the Shawkemo Property on January 14, 2003. The Shawkemo Certificate states, in part: "[s]o much of said Lot B as is included within the limits of Gardner Road as shown on [the 1931 Plan] and in other roads and ways approximately shown thereon is subject to the rights of all persons lawfully entitled therein." The Shawkemo Certificate also states that: "[t]here is appurtenant to said Lot B a right of way over the traveled way shown on [the 1931 Plan] from the southerly corner of said Lot B [Parcel Two] to the Polpis Road."

3. Diane Halm, as successor trustee of the Trust, owns the property located at 12 Gardner Road (the "Trust Property") which is comprised of approximately twenty-one acres and shown as Lot 2 on a plan titled "Subdivision Plan of Land in Nantucket" dated January 7, 1977, and prepared by Shugrue & Hart Inc., Surveyors (Registration Plan Number 12268B) (the "1977 Plan"). The 1977 Plan shows Gardner Road as thirty-three feet wide. The Trust holds title to the Trust Property by virtue of Certificate of Title Number 21215 (the "Trust Certificate"), Registration Case Number 12268, dated April 15, 2004. [Note 5]

4. The Trust Property and an adjacent parcel was registered as one lot by Everett U. Crosby ("Crosby") by Petition for Registration (the "Crosby Petition") dated June 21, 1927, and the 1927 Certificate as part of Registration Case Number 12268 dated November 11, 1927, and as shown on the 1927 Plan. The 1927 Certificate states that: "[t]here is appurtenant to the land hereby registered a right of way over said Gardner Road to the Polpis Road . . . all as shown on [the 1927 Plan], in common with others entitled thereto." The Trust Property is shown on the 1927 Plan as being bounded on the north by Gardner Road. The 1927 Plan shows a way titled "Road by the Cabot Farm," which travels in a generally southerly direction connecting Gardner Road to a way titled "Travelled Road From Town."

5. As shown on both the 1927 Plan and the 1931 Plan, Gardner Road runs in a generally east-west direction and bisects the Shawkemo Property and the Trust Property. The southerly edge of Gardner Road abuts the northerly boundary of the Trust Property. While Gardner Road's position with respect to the Shawkemo Property and the Trust Property is shown the same on both the 1927 Plan and the 1931 Plan, neither plan specifically identifies Gardner Road's width. [Note 6] As shown on the 1973 Plan, Gardner Road intersects with Polpis Road (a public way) approximately 686 feet southeast from where Gardner Road bisects the Shawkemo Property and the Trust Property.

6. On the ground, Gardner Road is an unpaved road of variable width (approximately ten to twenty feet wide) consisting of loose gravel, sand, and dirt.

7. The Subdivision, as approved by the Planning Board on August 27, 2007, consists of nine total lots (eight buildable and one roadway). Six of the lots in the Subdivision average 43,000 square feet in size, while the other two are approximately 4.05 acres and 9.93 acres, respectively. The subdivision will be accessed by a subdivision road running roughly north-south from its intersection with Gardner Road (hereafter, "Pippen's Way")

8. Mulloy designed and engineered the Trust's Definitive Subdivision Plan entitled Pippen's Way Subdivision, which was filed with the Planning Board for approval on November 13, 2006 (the "Original Subdivision Plan")

9. Between December 2006 and August 2007, the Planning Board held a series of seven public hearings regarding the Trust's proposed subdivision plan.

10. The Planning Board hired Pesce of Pesce Engineering and Associates to be the peer review consulting engineer in charge of reviewing the various versions of the subdivision plan.

11. Throughout the hearing and approval process, the Planning Board heard oral comments and accepted written comments and letters from concerned parties, including Plaintiffs' lawyers regarding issues involved in this case.

12. In May, 2007 the Trust submitted to the Planning Board a revised subdivision plan (the "May 2007 Subdivision Plan"). The May 2007 Subdivision Plan added two infiltration systems to the Original Subdivision Plan; one infiltration system on Gardner Road and the other on Pippen's Way. Other than the additional infiltration systems, the May 2007 Subdivision Plan made no other material changes to the Original Subdivision Plan. The May 2007 Subdivision Plan was submitted in response to the concerns of the Planning Board and Pesce with respect to drainage.

13. Together with the May 2007 Subdivision Plan, the Trust submitted to the Planning Board a drainage report, dated May 9, 2007 (the "Drainage Report"). The Trust submitted an operation and maintenance plan as an appendix to the Drainage Report (the "Operation and Maintenance Plan"). The Operation and Maintenance Plan outlines maintenance testing and inspection obligations for the drainage and water infiltration systems to be constructed as part of the Subdivision.

14. In July, 2007, the Trust submitted a further revised subdivision plan (the "Subdivision Plan"). By written decision dated August 27, 2007 (the "Subdivision Approval"), the Planning Board approved the Subdivision Plan, with certain waivers. [Note 7]

15. The Trust did not submit a Landscaping Plan pursuant to Section 4.16 of the Rules and Regulations Governing the Subdivision of Land, Nantucket, Massachusetts (the "Rules and Regs"), and the Planning Board did not grant an express waiver of Section 4.16. The Subdivision Plan in its entirety contemplates trees and landscaping within the Subdivision.

16. Part of the Subdivision Plan includes the Drainage Report, which purports to indicate that the drainage and stormwater handling system that supports the Subdivision is in compliance with the Rules and Regs with respect to drainage. The drainage system is comprised of two water infiltration systems, one on Gardner Road and one at the cul-de-sac of Pippen's Way.

17. Mulloy utilized the HydroCad Program ("HydroCad") and underlying TR-20 technology in creating the drainage system for the Subdivision. Mulloy has used HydroCad and TR-20 technology to design dozens of other drainage systems for subdivisions on Nantucket that have been approved by the Planning Board. According to Mulloy's testimony, the drainage systems implemented in other subdivision are still functioning on Nantucket today.

18. The Rules and Regs do not specify a particular methodology or program for designing an adequate drainage system in compliance with Section 4.06b of the Rules and Regs. The Rules and Regs require, however, that a drainage system is able to handle a twenty-five year storm.

19. Although not required by the Rules and Regs, Mulloy designed a drainage system that purports to meet the one hundred year storm standard. Mulloy's drainage system was also designed to comply with the 1997 Massachusetts Department of Environmental Protection ("DEP") Stormwater Management Policy, which requires the volume and rate of runoff post-development match or be less than the conditions prior to the development.

20. The Rules and Regs require at least two feet distance between a proposed underground filtration structure and the estimated seasonal high groundwater level ("ESHGW").

21. HydroCad requires the user to input data entries. Among other inputs, HydroCad requires ESHGW, soil classifications, terrain characteristics, and slope of land.

22. The Rational Method is an alternative method to HydroCad that can be used to test whether a drainage system complies with the Rules and Regs. Typically, the Rational Method is used for development projects on less than once acre of land. Pesce testified that if the Trust had used only the Rational Method to design its drainage system, then Pesce would not have recommended the Trust's drainage system to the Planning Board.

23. There are at least three generally accepted scientific methods for measuring ESHGW: (1) direct observation of highest groundwater elevation (the "Groundwater Observation Method", (2) direct observation of soil mottling (the "Mottling Method"), and (3) the Frimpter method (the "Frimpter Method"). ESHGW is a data input that is utilized in HydroCad to design a sufficient drainage system.

24. The Groundwater Observation Method is carried out by digging pits or wells and measuring the high groundwater levels at various times throughout the year. The most accurate measures of ESHGW using the Groundwater Observation Method are most commonly recorded in the spring months.

25. The Mottling Method is a second, alternative method for determining ESHGW. Mottling is the staining of soils, which indicates where the high water table might have been historically. ESHGW is determined using the Mottling Method by recording the highest levels of mottling in a test area.

26. A third method for determining ESHGW is the Frimpter Method. The Frimpter Method allows a hydrologist to compare direct observations of ESHGW in the context of actual, long-term data of ESHGW collected by the United States Geological Survey ("USGS"). USGS maintains ten wells on Nantucket that collect and measure water levels. In essence, the Frimpter Method allows a hydrologist to adjust the observed levels of groundwater while considering historical levels of groundwater as collected by USGS.

27. Groundwater mounding ("Mounding") is a method for estimating the extent of temporary increases in groundwater during a storm event. Mounding analysis can be taken into consideration when designing a drainage system to ensure that the system can adequately handle increases in groundwater during a storm event. During Pesce's six year tenure as peer review consultant for the Planning Board, the Planning Board has never required that an applicant complete Mounding.

28. Both Mulloy and Horsley testified that the use of the Frimpter Method is not always required to obtain an accurate reading of ESHGW. Both experts testified that the Frimpter Method is not necessary if the hydrologist is able to accurately determine ESHGW by either the Groundwater Observation Method or the Mottling Method. More specifically, Horsley testified that if ESHGW testing is executed in April or May, and the observer is able to obtain an accurate reading of ESHGW through either the Groundwater Observation Method or the Mottling Method, then one does not need to use the Frimpter Method to determine ESHGW.

29. Horsley's testimony regarding the necessity of the Frimpter Method is based in part on the 2007 version of the Massachusetts Stormwater Handbook (the "Stormwater Handbook"). Horsley was on the advisory committee that developed language in the 2007 version of the Stormwater Handbook.

30. The Rules and Regs do not define ESHGW, nor do the Rules and Regs require any particular methodology to be used for calculating ESHGW. Pesce did not require Mulloy to test for ESHGW using the Frimpter Method. Pesce testified that the Frimpter Method is not applicable and not advisable for the Subdivision because the USGS wells on Nantucket are too far away from the Subdivision site.

31. The Rules and Regs require that a Subdivision Plan comply with various wetland laws and Nantucket Board of Health Regulations (the "Health Regs"). The Health Regs require that "depth to groundwater" be measured by (1) the Groundwater Observation Method, (2) the Mottling Method, and (3) the Frimpter Method. The Health Regs further specify that the actual, recorded depth to groundwater shall be the highest groundwater elevation as determined by each of the three methods.

32. Pesce testified that each method for testing can be independently accurate. Pesce and the Planning Board did not requested that the Trust complete ESHGW testing using the Frimpter Method. Pesce also believes that the Frimpter Method is not necessary and is less reliable than testing of actual data on the actual subdivision site, which Mulloy did in this case.

33. Mulloy testified that he has never used the Frimpter Method to measure ESHGW in any of the several dozen projects in which drainage systems that he designed were approved by the Planning Board.

34. Mulloy recorded a number of measurements between 2006 and 2011 to determine the correct ESHGW on the Trust Property and on Gardner Road. In 2006, the Trust dug twelve test pits for the purpose of determining soil types, groundwater locations, and as a potential site for a septic system (the "Test Pits"). Mulloy observed groundwater in some of the Test Pits, but not in all of them. There was mottling observed in all of the Test Pits.

35. Initially, Mulloy used the Mottling Method in each of the Test Pits to determine ESHGW in various locations on the Trust Property. In the Drainage Report, Mulloy submitted the ESHGW calculations as derived by the Mottling Method.

36. At some point in 2007, the Trust dug ten groundwater monitoring wells in various locations on the Trust Property (the "Monitoring Wells). The Monitoring Wells were measured for ESHGW on a number of occasions in April, May, and June of 2007. Mulloy then determined that the prior ESHGW calculations using the Mottling Method in the Test Pits were not indicative of ESHGW and that the observations of ESHGW in the Monitoring Wells, using the Groundwater Observation Method, should be used as the ESHGW input into HydroCad. Mulloy informed the Planning Board of this determination orally and in writing before the Subdivision Plan was approved in August, 2007. [Note 8]

37. The Trust has conducted subsequent ESHGW testing, using the Groundwater Observation Method, that confirms and corroborates the ESHGW levels as revised in the late spring or early summer of 2007. Mulloy has continued taking and analyzing additional data, including readings in April, 2011 from the Monitoring Wells, a reading from the infiltration structure under Gardner Road, and a reading at the location of the proposed Pippen's Way infiltration structure. According to Mulloy's testimony at trial, the ESHGW calculations since the summer of 2007 have remained consistent across the Trust Property and over the course of several years.

38. HydroCad requires the user to input specific data detailing the type of land and soil surrounding a drainage system. HydroCad's user manual (the "Manual") assigns a "curve" number based on the type of land and soil surrounding the drainage area; e.g. farmland, wooded area, grass cover, etc... The higher the curve number assigned to adjoining land correlates to a higher storm water runoff from the adjoining land and into the drainage system.

39. Mulloy chose a curve number for farmland, part of which is held by Moors End under a long-term leasehold (the "Moors End Farm"), which directly abuts the Trust Property to the east, that was lower than the curve numbers recommended by the Manual for farmland. Mulloy assigned a curve number recommended for wooded area for part of the Moors End Farm and he assigned a curve number recommended for grass cover to another part of the Moors End Farm. Grass covered areas and wooded areas generally have lower recommended curve numbers that farmland.

40. One area of the drainage system designed by Mulloy is referred to as subcatchment area DA-10 ("DA-10"). DA-10 is partially comprised of a vegetated area and paved roadway surface. Paved surface carries the highest curve number recommended by the Manual (98), and vegetated areas are assigned far lower curve numbers (30 for example).

41. In his initial testing, Mulloy averaged together the two curve numbers for a vegetated area and a paved surface. The Manual specifically states that the user should not average together curve numbers.

42. After discussing the issue of averaging the curve numbers with Shaw, one of Plaintiffs' experts, Mulloy re-ran his analysis, separating out the vegetated area from the paved area of DA-10. The new analysis indicated no statistically significant variance in the expected surface water flows into the drainage system.

43. In his initial analysis, Mulloy miscalculated the slope of the land in DA-10 as having a 2% slope rather than a 5% slope, which is accurate. Upon recalculating the flow of surface water into the drainage system using a slope of 5% in DA-10, Mulloy determined that there was no statistically significant variance in surface water flow into the drainage system.

44. Plaintiffs' experts, Shaw and Horsley, testified that the drainage system and water infiltration system designed by Mulloy using Hydrocad will fail.

45. Pesce is the Planning Board's peer review consultant. Pesce has been working as a peer review consultant for the Planning Board since July 2, 2005.

46. During his tenure as peer review consultant, Pesce has reviewed approximately fifty real estate projects on Nantucket.

47. Pesce reviewed the drainage and water infiltration systems proposed by Mulloy as part of his review of each version of the Subdivision Plan. Pesce did not, however, review and check for accuracy each and every input into HydroCad. Pesce did not review and check for accuracy the soil classifications of Moors End Farm nor did he do independent testing of ESHGW on the Trust Property.

48. Pesce recommended to the Planning Board that it should approve the Subdivision Plan. Pesce advised the Planning Board that in his opinion, the drainage and infiltration systems for the Subdivision are sufficient to withstand a twenty-five year storm event, as required by the Rules and Regs.

49. As it exists today, Gardner Road is a track of dirt and loose gravel that is approximately eight to ten feet wide. It is not possible for two cars to pass one another on Gardner Road as it exists on the ground today.

50. To the north and west of the Pippen's Way/Gardner Road intersection, Gardner Road intersects with both South Valley Road and Middle Valley Road. Both South Valley Road and Middle Valley Road intersect with Shimmo Pond Road, which intersects with Polpis Road.

51. The Trust proposes numerous improvements and changes to Gardner Road as part of the Subdivision Plan. These improvements include paving, widening the road, installing a drainage and infiltration system, and grading the road to reduce the slope at certain points. At other points along Gardner Road, the slope will be increased from eight percent (8%) to ten percent (10%).

52. As improved, Gardner Road will be about twenty feet in width of paved road, and will contain a one foot shoulder and an eight inch berm on either side of the road. For the majority of Gardner Road as it would exist under the Subdivision Plan, Gardner Road will have a 2:1 slope. For approximately two hundred feet, Gardner Road will have a 1:1 slope.

53. The Trust applied for and was granted several waivers with respect to the Subdivision Plan, two of which are most relative to the improvements to Gardner Road. First, the Trust obtained a waiver pursuant to section 4.03a(1) of the Rules and Regs (the "Berm and Slope Waiver"). The Berm and Slope Waiver allows the Trust to build Gardner Road with a nine (9) inch cape cod berm rather than a twelve (12) inch berm (as required), and a 1:1 slope along certain areas of Gardner Road, rather than a 2:1 slope (as required). The Berm and Slope Waiver was granted to the Trust so that the Trust can fit the "required improvements [to Gardner Road] within the available right of way," i.e. the Easement.

54. The Trust also obtained a waiver under section 4.09 - SHOULDERS of the Rules and Regs (the "Shoulder Waiver," and together with the Berm and Slope Waiver, the "Waivers"). The Shoulder Waiver reads:

[A]llow use of 2-foot shoulders rather than 4-foot shoulders on Pippen's Way and variable width shoulders of 1-foot to 2-foot shoulders in Gardner Road to allow for reduced site disturbance.

55. Section 4.03a(1) - STREETS of the Rules and Regs states:

A minor subdivision street which, in the opinion of the Board, provides access to abutting lots, and is not intended for use by through traffic, shall be paved to a width of not less than twenty (20) feet and shall be designed and constructed in conformance with Section 5, Specifications for Construction of the Required Improvements and as shown on Plate No. 5 in Appendix A.

Section 4.03a(2) - STREETS of the Rules and Regs states:

A secondary subdivision street which, in the opinion of the Board, carries traffic from minor streets to major streets or community facilities, shall be paved to a width of not less than twenty-two (22) feet and shall be designed and constructed in conformance with Section 5, Specifications for Construction of the Required Improvements and as shown on Plate No. 5 in Appendix A.

56. The Trust did not seek a waiver for "Width of Roadway." Rules and Regs section 4.03(e) requires a forty (40) foot road layout. The Easement is thirty-three feet wide, and thus does not comply with the Rules and Regs.

57. Mulloy testified at trial that the improvements will fit within the Easement and that no haybales, silt fences, or additional improvements for erosion-control will be placed outside the thirty-three foot-wide Gardner Road layout.

58. Plaintiffs' expert, Shaw, testified at trial that without any waivers, i.e. with a 2:1 slope along the entirety of the improved portion of Gardner Road, the proposed improvements to Gardner Road would require a road between 44 to 58 feet in width to fit the improvements. Shaw also testified that Gardner Road, as planned by the Trust, would not fit within the Easement.

59. As part of its road improvement plan and to remedy the increased slope, the Trust proposes to utilize a product referred to as Geoweb. Geoweb is often used along the banks of a steep road in order to keep earth and other material along a road in place and to prevent such material from sliding down onto a road.

60. The Trust will have to clear trees along Gardner Road to construct the new road as planned.

61. Shaw testified that an unknown number of trees may have roots outside of the thirty-three foot-wide easement that would be destroyed because of the improvement to Gardner Road.

62. Shaw testified that sight distance exiting Pippen's Way and looking right down Gardner Road would be approximately eighty feet. Shaw did not measure sight distance looking left.

63. Conley, Plaintiffs' traffic expert, did not analyze the sight distances and relied upon Shaw's sight distance conclusion without further inquiry into its accuracy.

64. The Trust's traffic expert Bristol determined the sight distance exiting Pippen's Way in both directions would be over 250 feet. The American Association of State Highway and Transportation Officials ("AASHTO") recommend a sight distance of between 165 feet or 200 feet on a thirty mile-per-hour road with similar conditions to Gardner Road.

65. Section 4.04 of the Rules and Regs provides that dead-end streets "shall not be longer than one thousand (1,000) feet unless, in the opinion of the Board, a greater length is necessitated by topography or other local conditions." The Rules and Regs do not define a dead-end street.

66. To reach the end of Pippen's Way from Polpis Road, as set out in the Subdivision Plan, on must travel down Gardner Road approximately 1,000 feet, and then another 830 feet down Pippen's Way.

67. The Trust does not claim to have legal access to Gardner Road from the north and west of Pippen's Way.

68. The Trust did not seek a waiver for Section 4.04's dead-end street requirement.

69. The Planning Board measured Pippen's Way as a dead-end street 834 feet in length, starting at the intersection of Pippen's Way and Gardner Road.

70. The Planning Board contacted McDougall, the Nantucket Fire Chief, seeking his opinion on the accessibility of the proposed Pippen's Way via alternate routes for emergency vehicles. McDougall replied in a letter sent June 8, 2007, that "[T]he Nantucket Fire Department has reviewed the property associated with the Pippen's Way Subdivision. The emergency access road is determined adequate." At trial, McDougall clarified that the Trust Property is accessible from Polpis Road and Gardner Road, from South Valley Road and Gardner Road, and from Middle Valley Road to North Road to Gardner Road, and that he had driven all routes the week prior to his testimony. McDougall has driven emergency vehicles and fire trucks on Gardner Road, Shimmo Pond Road, Middle Valley Road, and South Valley Road in the past and stated confidence that the Nantucket Fire Department could reach the Trust Property via these alternative emergency access routes.

71. The Subdivision will result in increased traffic along Gardner Road, from approximately thirty trips per day to approximately 192 trips per day.

72. Bennett owns property abutting Gardner Road and located two lots away from the Trust Property. Bennett expressed concern that the Subdivision will cause dramatically increased traffic along Gardner Road.

73. NLC owns several non-fee conservation restriction interests over land abutting and in the vicinity of the Trust Property. By grant dated June 15, 1999, and recorded with the Nantucket County Registry of Deed (the "Registry") at Document Number 086315 on Certificate of Title Number 17937, Gary W. McCarthy, as trustee of Great Point Nominee Trust conveyed a conservation restriction to NLC (the "Great Point Restriction"). In order to preserve open space and maintain an undisturbed habitat in wetlands areas, the Great Point Restriction enjoins certain activities such as construction of homes. Pursuant to the Great Point Restriction, NLC has the right to enter upon the restricted premises to inspect and ensure compliance with the prohibited uses. The Great Point Restriction recites that it is worth monetary value to NLC. The land subject to the Great Point Restriction directly abuts the Trust Property to the southwest.

74. By grant dated June 15, 1999, and recorded with the Registry at Document Number 086314 on Certificate of Title Number 18883, Gary W. McCarthy and Susan McCarthy conveyed a conservation restriction to NLC (the "Juniper Hill Restriction"). The Juniper Hill Restriction was conveyed to NLC in order to protect highly erodible soils, fresh groundwater supply, and the natural habitat of the area - including two fresh water ponds. The Juniper Hill Restriction contains similar prohibited uses as does the Great Point Restriction. The land subject to the Juniper Hill Restriction directly abuts the Trust Property to the south.

75. Slosek and his father, Stephen Slosek, are managers of Moors End Farm, LLC and were authorized to testify on its behalf. Slosek testified that he is concerned that increased density in the area surrounding the Moors End Farm will cause increased traffic and be detrimental to his farming activities. Slosek and Stephen Slosek, testified that they believe neighbors would object to certain farming practices utilized by Moors End.

76. Plaintiffs Richard Glidden, Trustee, and Kathleen McGrady ("McGrady") own land in the vicinity of the Trust Property. McGrady's property abuts Gardner Road to the east of the Trust Property. None of these Plaintiffs testified at trial.

77. Shimmo is a homeowners association with about fifty members. Members of Shimmo own and maintain roads to the north and west of the Trust Property, including portions of Gardner Road and South Valley Road. Young provided very brief testimony on behalf of Shimmo.

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As a preliminary matter, the Trust challenges standing of the Abutters. The major issues with respect to the merits are (1) whether the Planning Board's approval of the Subdivision Plan was arbitrary and capricious relative to issues of the adequacy of the Subdivision's drainage, various issues pertaining to Gardner Road, the Trust's failure to submit a landscaping plan pursuant to Rules & Regs Section 4.16, and standing of the Abutters, and (2) whether the proposed improvements to Gardner Road are within the scope of the Trust's easement. I shall address each of these issues in turn.

A. Standing

Before arguing the merits of the case, the Trust contends that the Abutters do not have standing to challenge the Subdivision Approval. The Trust does not challenge Shawkemo's standing, and as a result, I find that Shawkemo has standing to challenge the Subdivision Approval.

G.L. c. 41, § 81BB provides a right of appeal for any person aggrieved by a decision of a planning board concerning a plan of a subdivision of land. A "person aggrieved" is one who "suffers some infringement of his legal rights." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). Of particular importance, the right or interest asserted by a plaintiff claiming aggrievement must be one that the applicable law is intended to protect, either explicitly or implicitly. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). Increased traffic and drainage issues relating to a subdivision approval are recognized harms that the law is intended to protect. See Standerwick v. Zoning Bd. of Appeals, 447 Mass. 20 , 37 (2006).

"Abutters entitled to notice of planning board hearings, pursuant to G.L. c. 41 § 81T, enjoy a rebuttable presumption that they are persons aggrieved." Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 523 (2009). "[O]nce an abutters' standing is challenged and evidence is offered to support the challenge, the presumption recedes and the burden of proof shifts to the abutter, who must come forth with specific facts to support his assertion of status of an aggrieved person." Rattner v. Planning Bd. Of West Tisbury, 45 Mass. App. Ct. 8 , 10 (1998). "A review of standing based on 'all the evidence' does not require that the fact finder ultimately find a plaintiff's allegations meritorious. To do so would deny standing, after the fact, to any unsuccessful plaintiff." Marashlian, 421 Mass. at 721. A plaintiff need only introduce credible evidence of a plausible claim of a violation of a private property interest. Id. at 721.

An abutter whose standing is challenged must respond with credible evidence substantiating his or her claims of aggrievement:

Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the board's action. Conjecture, personal opinion, and hypothesis are therefore insufficient. Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005) (internal citations omitted)

Bennett owns property that abuts Gardner Road but does not abut the Trust Property. As such, Bennett is not entitled to a presumption of standing. Plaintiffs' expert, Conley, however, credibly testified that the use of Gardner Road and traffic thereon would be drastically increased as a result of the Subdivision. This contention was quantified, and Conley concluded that traffic would be increased from approximately thirty trips per day to approximately 192 trips per day, a 600 percent increase. Bennett lives on Gardner Road and expressed a credible concern that increased traffic will adversely affect his use of Gardner Road to access his home. This evidence is sufficient to show that Bennett, an abutter to Gardner Road, is a person aggrieved by the Subdivision Approval. See Rattner, 45 Mass. App. Ct. at 11 (increased traffic on private road used to access subdivision confers standing on abutter to that road). As such, I find that Bennett has standing to challenge the Subdivision Approval.

Moors End is a direct abutter to the Trust Property and is entitled to presumed standing. Even though Moors End maintains only a leasehold over the majority of the Moors End Farm, which abuts the Trust Property, Moors End is still entitled to presumed standing as an abutter. See Shoppers' World, Inc. v. Beacon Terrace Realty, Inc., 353 Mass. 63 , 66 (1967) (tenant of property abutting a project site is a person aggrieved). Slosek and his father, Stephen Slosek, Moors End's representatives, testified to concerns such as future objections to certain farming techniques and increased density and traffic as a result of the Subdivision.

The Trust contends that it has come forth with evidence rebutting Moors End's presumed standing. The Trust points out that Slosek and Stephen Slosek's testimony is completely speculative. Both of the Sloseks testified that they believe the new neighbors of the Subdivision will object to certain fertilizers utilized on the Moors End Farm. [Note 9] Moreover, in speculative fashion, Slosek complained that the increased density and traffic caused by the Subdivision will be harmful to the Moors End Farm. [Note 10] In every regard, the testimony from the representatives of Moors End is speculative with respect to particularized harms. There is absolutely no evidence that neighbors will object to certain farming practices and fertilizers used on the Moors End Farm. Without more, the unsubstantiated claims of harm arising out of increased density will not suffice. Slosek did not articulate specific concerns relative to traffic. Based on the foregoing, I find that Moors End does not have standing to challenge the Subdivision Approval.

NLC holds the Great Point Restriction and the Juniper Hill Restriction, both restricting the use of land abutting the Trust Property to the southwest and the south, respectively. NLC therefore is entitled to presumed standing. See Carey v. Planning Bd. of Revere, 335 Mass. 740 , 743 (1957) (mortgagee is "person aggrieved" where noncompliance with subdivision control law may depreciate value of mortgaged premises), see also Shoppers' World, Inc., supra (tenant is person aggrieved).

Furthermore, NLC has come forth with evidence proving that it is a "person aggrieved." The Great Point Restriction and the Juniper Hill Restriction enjoin construction activity in order to preserve open space and maintain an undisturbed habitat in wetlands areas. More specifically, a primary purpose of the Juniper Hill Restriction is to protect highly erodible soils, fresh groundwater supply, and the natural habitat of the area - including two fresh water ponds. Pursuant to the Great Point Restriction, NLC has the right to enter upon the restricted premises to inspect and ensure compliance with the prohibited uses. The Great Point Restriction recites that it is worth value to NLC. [Note 11]

The crux of NLC's standing is based on its assertion that the Trust's drainage system is inadequate and will cause increased groundwater on land subject to NLC's conservation restrictions. Plaintiffs' experts, Horsley and Shaw, opined that there are several design flaws in the Trust's drainage system. Specifically, Plaintiffs' experts would have designed a drainage system for the Subdivision with different ESHGW calculations (and measuring methods) and different curve numbers on land adjacent to the Trust Property. NLC argues that the inevitable failure of the drainage system, as evidenced by the testimony of Horsley and Shaw, will be harmful to groundwater levels, disturb the natural habitat on land subject to its conservation restrictions, and will diminish the value of its conservation restrictions.

After a review of all of the evidence, NLC has come forth with a "plausible claim" of a violation of its property rights. Horsley and Shaw presented testimony to support a proposed theory that the Trust's drainage system is insufficient and improperly designed. Whether Plaintiffs' experts would have designed a different drainage system is not necessarily relative on the merits; however, the alleged design flaws are sufficient to prove a "plausible claim of injury." Based on the foregoing, I find that NLC has standing to challenge the Subdivision Approval.

There is insufficient evidence in the record with regard to whether Shimmo, McGrady, and Richard Glidden, Trustee are entitled to presumed standing. At trial, none of these Plaintiffs testified and there is no evidence as to any particularized harm to them caused by the Subdivision. As such, I find that Shimmo, McGrady and Richard Glidden, Trustee do not have standing to challenge the Subdivision Approval. [Note 12]

B. The Planning Board's Approval of the Subdivision Plan

(I) Standard of Review

"It is the intent of the subdivision control law that any subdivision plan filed with the planning board shall receive the approval of such board if said plan conforms to the recommendation of the board of health and to the reasonable rules and regulations of the planning board pertaining to subdivisions of land..." G.L. c. 41 § 81M. [Note 13] In an appeal under G.L. c. 41, § 81BB from a planning board's approval of a subdivision plan, the court hears the evidence de novo, finds the relevant facts, and then determines whether the planning board exceeded its authority in approving the plan. See Mac-Rich Realty Const., Inc. v. Planning Bd. of Southborough, 4 Mass. App. Ct. 79 , 81 (1976). Because an applicant is entitled to approval unless its plan is shown to conflict with the planning board's reasonable rules and regulations, the burden of proof is on the appellants to show that the planning board "acted improperly" in approving the plan. Selectmen of Ayer v. Planning Bd. of Ayer, 3 Mass. App. Ct. 545 , 548-49 (1975) ("One is entitled to have a definitive subdivision plan approved unless it is shown to be in conflict with recommendations of the board of health . . . or the reasonable rules and regulations of the planning board"). A court may not claim possession over the functions of the planning board. See Strand v. Planning Bd. of Sudbury, Mass. App. Ct. 18, 24 (1977).

(ii) Drainage

In order to succeed in showing the Planning Board exceeded it's authority and wrongly approved the Subdivision Plan as it relates to Mulloy's proposed drainage system, Plaintiffs must show that the Planning Board "acted improperly" in approving the plan. Selectmen of Ayer, 3 Mass. App. Ct. at 548-49. If it appears that the proposed drainage system complies with the Rules & Regs and the Board of Health recommendation, then the Planning Board's decision as it relates to drainage must be affirmed. See Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. at 24 (the court must not arrogate to itself the functions of the board of health or those of the planning board or attempt to improve the work of either). A planning board's decision may be overturned after de novo review if the decision was based on "legally untenable ground ... or is unreasonable, whimsical, capricious, or arbitrary." ACW Realty Mgmt., Inc. v. Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996).

Section 4.06b of the Rules & Regs requires that every subdivision have a drainage system installed that is of sufficient size "to provide adequate drainage of all portions of the street system so that water does not accumulate thereon, to intercept storm water runoff from the adjacent lots of the subdivision, and to eliminate undesirable or unnatural accumulation of water on any portion of the subdivision or surrounding property." Section 4.06b of the Rules and Regs requires the drainage system be able to handle the conditions of a twenty-five year storm and include gutters, catch basins, manholes, culverts, drain lines, concrete headwalls, and other items as may be required to complete the system to the satisfaction of the board. The Rules and Regs do not require a particular methodology in designing an adequate drainage system.

Mulloy designed the drainage system for the Subdivision by utilizing HydroCad and underlying TR-20 methodology. [Note 14] There are at least two methodologies that may be used in designing a drainage system for a development. The majority of the trial testimony related to (1) HydroCad and (2) the Rational Method, two alternative methods that Mulloy could have used in designing the drainage system for the Subdivision. [Note 15] The Planning Board does not require that a certain methodology be used in designing a drainage system to provide adequate drainage for a proposed subdivision. The Planning Board typically requires an applicant to use HydroCad for a proposed subdivision that is greater than one acre. In fact, Pesce testified that he would have required the Trust to use HydroCad rather than the Rational Method for this particular project.

According to Pesce's review and the Planning Board's approval, the proposed drainage system exceeds the Rules & Regs requirement of withstanding a twenty-five year storm and meets the one hundred year storm standard. Moreover, the proposed drainage system complies with the applicable version of the DEP Stormwater Management Policy, including a requirement that the volume and rate of runoff post-development match or be less than the pre-development condition. Furthermore, the proposed underground infiltration structure will be at least two feet above the ESHGW level, as suggested by the DEP.

a. Methodology and Measurement of ESHGW

Plaintiffs do not generally question the Trust's use of Hydrocad, but Plaintiffs and their experts are highly critical of the HyrdoCad inputs that were chosen by Mulloy and his team. First, Plaintiffs question the legitimacy and the accuracy of ESHGW as determined by Mulloy and his team.

A substantial portion of testimony at trial was dedicated to the correct methodology for determining ESHGW. The Rules and Regs do not require that any particular methodology be used for determining ESHGW. However, the Health Regs and section 1.02 of the Wetlands Rules and Regs require "depth to groundwater" be measured by (1) the Groundwater Observation Method, (2) the Mottling Method, and (3) the Frimpter Method. Plaintiffs contend that the Subdivision Plan and the proposed water drainage system are not in compliance with relevant regulations because Mulloy did not utilize the Frimpter Method for measuring ESHGW. Furthermore, Plaintiffs question why Mulloy initially used the Mottling Method to measure ESHGW, submitted measurements of ESHGW to the Planning Board, and then decided to measure ESHGW using the Groundwater Observation Method.

In the Spring of 2006, the Trust dug twelve Test Pits. Mulloy and his team observed groundwater in only a few of the Test Pits but they observed soil mottling in each of the Test Pits. Thus, Mulloy and his team initially used the Mottling Method to determine ESHGW. After further review of the Subdivision by Pesce and the Planning Board, the Trust was required to build two infiltration systems to support drainage along Gardner Road and within the Subdivision. In 2007, after the Trust planned to build the infiltration systems, the Trust decided to dig the Monitoring Wells for the exclusive purpose of measuring ESHGW. In April of 2007, Mulloy and his team [Note 16] observed groundwater in each of the Monitoring Wells. At this point, Mulloy and his team used the Groundwater Observation Method to determine ESHGW. Mulloy used the Groundwater Observation Method in his final determination of ESHGW.

Mulloy and Horsley, one of Plaintiffs' experts, testified that both the Mottling Method and the Groundwater Observation Method are both scientifically appropriate methods for measuring ESHGW. Moreover, Horsley testified that if an observer is able to find an accurate reading of ESHGW using the Groundwater Observation Method in the Spring months, when groundwater is typically at its highest point during the calendar year, then these readings are often appropriate, accurate measurements of ESHGW.

According to Mulloy, the observed mottling in the Test Pits was not indicative of ESHGW because it was observed in pockets of silt within the sand test pits, a common occurrence on Nantucket. Mulloy credibly testified that he believed the measurements taken in 2007 were more accurate measures of ESHGW than those taken in 2006 via the Mottling Method. Plaintiffs contend that Mulloy chose to test ESHGW again because he did "not like" the ESHGW levels he found during the 2006 testing. [Note 17] All of the evidence, however, proves otherwise. Mulloy credibly testified that on several occasions since 2007 he has tested ESHGW using the Groundwater Observation Method. Each measure of ESHGW in the Monitoring Wells and in the exact locations where the two infiltration systems will be installed [Note 18] corroborated his 2007 measurements of ESHGW in the Monitoring Wells using the Groundwater Observation Method. [Note 19]

Plaintiffs also contend that Mulloy's ESHGW figures are incorrect because Mulloy failed to use Mounding and failed to measure ESHGW utilizing the Frimpter Method. First, the Planning Board has not required Mounding testing during Pesce's six year tenure with the Planning Board. To wit, Mounding is not required by the Planning Board.

Finally, Plaintiffs contend that the Rules and Regs implicitly require utilization of the Frimpter Method. Rules and Regs section 3.03 requires that all subdivisions comply with the Nantucket Wetlands Rules and Regulations [Note 20] (the "Wetlands Rules and Regs") and the Health Regs. The Health Regs and the Wetlands Rules and Regs both define depth to groundwater with reference to the Frimpter Method.

The Health Regs and section 1.02 of the Wetlands Rules and Regs require "depth to groundwater" be measured by (1) the Groundwater Observation Method, (2) the Mottling Method, and (3) the Frimpter Method. The Health Regs further specify that the actual, recorded depth to groundwater shall be the highest groundwater elevation as determined by each of the three methods. Thus, the Health Regs and the Wetlands Rules and Regs imply that each of the three testing methods must be completed and the applicant must choose the highest depth to groundwater level produced by each method.

Even if the Rules and Regs require ESHGW testing via three methods [Note 21], "a planning board may in any particular case, where such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law, waive strict compliance with its rules and regulations..." Meyer v. Planning Board of Westport, 29 Mass. App. Ct. 167 , 169 (1990). "[I]n approving a subdivision plan, a planning board is not required to specify and list in writing those rules and regulations which it has waived." Id at 170. This inquiry turns on whether conscious waiver has been implied and whether it is consistent with the public interest. Id. Evidence of conscious waiver can be found in meeting minutes, a subdivision approval decision, other waivers, and trial testimony. See Dias v. Pleissey, 16 LCR 694 , 700 (2008).

In the case at bar, it is clear from the record that the Planning Board waived the requirement that the Trust complete ESHGW testing using all three aforementioned methods. It is the common practice of the Planning Board to not require such exhaustive testing. For example, Mulloy testified that he has never used the Frimpter Method to measure ESHGW in any of the several dozen projects in which drainage systems that he designed were approved by the Planning Board. Pesce testified that each method for testing can be independently accurate. Moreover, Pesce and the Planning Board did not request that the Trust complete ESHGW testing using the Frimpter Method. Pesce also testified that the Frimpter Method is not necessary and is less reliable than testing of actual data on the actual subdivision site, which Mulloy did in this case. Finally, Horsley agrees that the Frimpter Method is not necessary if an engineer is able to observe clear and consistent measurements of ESHGW in the spring months. Accordingly, it is clear that the Planning Board knowingly waived the potential requirement that an applicant must test ESHGW using three different methods and choose the highest figure. Moreover, this implied waiver is not inconsistent with the public interest because the Planning Board and Pesce were satisfied with the ESHGW calculations put forth by Mulloy. In addition, the Board of Health is deemed to have approved the Subdivision Plan, and there is no evidence that the Board of Health interpreted its own Health Regs to require use of the Frimpter Method.

Based on the foregoing, I find that the Planning Board did not abuse its discretion in granting the Subdivision Approval as it relates to ESHGW testing.

b. Soil Classifications

HydroCad requires the user to input specific data detailing the type of land and soil surrounding a drainage system. Plaintiffs contend that Mulloy assigned improper "curve" numbers to the Moors End Farm, an abutting property, relative to soil classifications. Curve numbers relate to land characteristics and soil conditions. The higher the curve number, the more water runoff will filter down into the drainage system. Mulloy assigned a curve number recommended for grass cover for a portion of the Moors End Farm and a curve number recommended for wooded area for another portion of the Moors End Farm. These assigned curve numbers are lower than the recommended numbers for farmland.

Mulloy defends his assignment of a lower curve number because he did not observe any runoff from the Moors End Farm, even though Mulloy never observed a twenty-five year storm or even a two year storm on the Trust Property. Pesce recommended the Trust's drainage system to the Planning Board even though Pesce admitted he never independently assessed whether the assigned curve numbers were appropriate. Shaw testified, in his professional opinion, that he would have assigned a curve number recommended for farmland to the Moors End Farm. Shaw, however, testified that selecting curve numbers is a matter of professional judgment.

This Court is of the opinion that Mulloy exercised his professional judgment in assigning a lower curve number to the Moors End Farm. Mulloy did not arbitrarily select a lower curve number than is normal for farmland. This choice was justified by the relevant slopes, ground cover, soil types, and the lack of observed runoff from the Moors End Farm.

Even if Plaintiffs' experts would chose to assign a higher curve number to the farm, Plaintiffs are not designing this particular drainage system. Moreover, after an omnibus review of the drainage system, Pesce recommended that the Planning Board approve the Subdivision and its drainage system. This court cannot conclude that a mere difference in professional opinion as to an assigned curve number is so egregious to say that the Planning Board acting arbitrarily or based on legally untenable grounds. Based on the foregoing, I find that the Planning Board did not abuse its discretion in approving the Subdivision with respect to the Trust's soil classifications.

c. DA-10 Area Issues

Plaintiffs also question the legitimacy of Mulloy's inputs to HydroCad with respect to an area referred to as DA-10, part of the Shawkemo Property, which is located to the north of Gardner Road and to the north and east of the Trust Property. Plaintiffs first contend that Mulloy improperly averaged together the curve numbers for paved surface and vegetated area within DA-10. In response, Mulloy conceded that he did this and that it was error to average the numbers together. Mulloy, however, continued to testify credibly that he separated out the curve numbers, re-ran HydroCad's model, and the output was statistically insignificant with regards to an increase in surface water runoff into the drainage system. [Note 22]

Next, Plaintiffs contend that Mulloy used an improper slope for the land in DA-10. Once again, Mulloy admitted that he should have used a five percent (5%) slope rather than a two percent (2% slope). Mulloy re-ran HydroCad using a 5% slope, and once again the output resulted in a statistically insignificant variance with respect to surface water runoff from DA-10 into the drainage system. Based on the foregoing, I find that the Planning Board did not abuse its discretion in approving the Subdivision with respect to the DA-10 drainage issues.

d. Summary and Conclusion of Drainage Issues

Plaintiffs have raised numerous concerns with respect to Mulloy's inputs into HydroCad, but they have failed to prove that the Planning Board acted in an arbitrary, capricious, or whimsical manner. First, it was not improper for Mulloy and the Trust to rely on the ESHGW measurements recorded in April of 2007 and corroborated by several other spring-time readings using the Groundwater Observation Method. The Planning Board either did not require use of the Frimpter Method or they waived the requirement that the Trust determine ESHGW by using the highest level found via each of the three ESHGW measuring methods. As a result, the lack of Frimpter Method testing does not make the Subdivision Approval arbitrary and capricious.

Mulloy's choice of a lower curve number for the Moors End Farm and the Planning Board's approval thereof is not arbitrary and capricious. The assignment of a property's curve number is a matter of professional judgment that this court will not overturn. Finally, Plaintiffs' DA-10 concerns are not relevant because Mulloy re-ran his models and found his errors to be statistically insignificant. As a result of the foregoing, I find that with respect to the drainage issues, the Subdivision Approval is not arbitrary and capricious.

(iii) Width of Gardner Road

The parties disagree as to whether the proposed improvements to Gardner Road will fit within the Easement. Plaintiffs and their expert Shaw contend, inter alia, that if Gardner Road is built pursuant to the Subdivision Plan, Gardner Road will need one or two more feet of width than the layout of the Easement. Plaintiffs premise their argument on speculation regarding Mulloy's methodology and an apparent misunderstanding of Mulloy's ability to fit the improvements within the Easement. Plaintiffs were especially concerned with the ability to fit hay bales and other erosion control methods, e.g. Geoweb, as well as the ability to carry out construction, within the Easement layout.

Mulloy's testimony and certain trial exhibits demonstrate that the improvements will fit within the 33-foot-wide layout on Gardner Road, even at the point where the improvements and re-paving come closest to the edge of the Easement. Mulloy credibly testified that the improvements will fit within the Easement, and no haybales, silt fences, or other additional improvements for erosion-control will be placed outside the 33-foot-wide Gardner Road layout. This evidence contradicts Shaw's testimony that the improved Gardner Road, as approved by the Planning Board, requires one to two feet more than the width of the Easement.

Shaw based a portion of his testimony regarding fitting the construction within the Easement on the assumption the Trust was going to use a 2:1 slope along the entirety of Gardner Road. Shaw's testimony did not fully consider the various waivers received by the Trust (1:1 slope in certain areas as opposed to 2:1 slope; 8 inch berms instead of 12 inch berms; and one foot shoulders instead of two foot shoulders). Shaw's testimony in this regard is therefore not credible because a majority of his testimony does not consider the waivers allowed by the Planning Board.

Mulloy also testified if haybales will not fit within the Easement, then other measures can be substituted for the haybales. The Planning Board justifiably relied on the Subdivision Plan prepared by Mulloy showing that the improvements to Gardner Road could fit within the Easement. As a result of the foregoing, I find that the Planning Board did not exceed its authority in approving the Subdivision Plan as it relates to the Trust's ability to fit the improvements to Gardner Road within the Easement.

(iv) Sight Distance at Gardner Road and Pippen's Way

The parties also dispute whether the proposed intersection of Gardner Road and Pippen's Way provides adequate sight distances in both directions. The design criteria established by AASHTO for sight distance on a 30 mile-per-hour road is between 165 to 200 feet. Both Plaintiffs' and the Trust's experts agreed that drivers will travel 30 miles-per-hour or slower down Gardner Road. Plaintiffs' expert Shaw testified that the sight distance exiting Pippen's Way and looking down Gardner Road to the right would be approximately eighty feet. [Note 23] Shaw based his opinion upon the slope and grade of Gardner Road from that point. Plaintiffs' traffic expert Conley did not analyze the sight distances and relied upon Shaw's conclusion in this regard.

The Trust's expert, Bristol, determined the sight distance down Gardner Road would be over 250 feet, looking in either direction down Gardner Road. Bristol provided detail regarding how he measured the sight distances at the intersection of Pippen's Way and Gardner Road in compliance with the AASHTO manual, whereas Shaw did not provide his specific methodology for measuring sight distance. Furthermore, Pesce's traffic and sight concerns were addressed to Pesce's satisfaction by various revisions to the Original Subdivision Plan. Considering the conflicting testimony and the fact that Pesce was satisfied with the sight distance at the Pippen's Way/Gardner Road intersection, I find that the Planning Board did not exceed its authority in approving the Subdivision Plan as it relates to safety and sight distances at the intersection of Pippen's Way and Gardner Road.

(v) Dead-End Street & Emergency Access for Gardner Road

Section 4.04 of the Rules and Regs provides that "dead-end streets shall not be longer than one thousand (1,000) feet unless, in the opinion of the Board, a greater length is necessitated by topography or other local conditions." The Rules & Regs do not require subdivisions to have secondary access. Section 4.08, entitled "Adequate Access to the Site" discusses the importance of access for emergency vehicles and then states that "[t]he Board may require that secondary access be provided for reasons of public safety and convenience." (emphasis added). [Note 24]

Plaintiffs argue that the length of the dead-end road terminating at the end of Pippen's Way should be measured from the intersection of Polpis Road and Gardner Road. Plaintiffs contend that one must travel approximately 1,000 feet from Polpis Road down Gardner Road to Pippen's Way, and then travel another 830 feet from Gardner Road to reach the terminus of Pippen's Way. This approximate total of 1,830 feet, Plaintiffs argue, is in clear violation of Section 4.04 of the Rules and Regs. Plaintiffs contend that the dead end should be measured from the intersection of Polpis Road and Gardner Road rather than the intersection of Gardner Road and Pippen's Way for three reasons: (1) the Trust does not have rights in the portion of Gardner Road to the north and west of Pippen's Way, which leads to a public way; (2) Gardner Road as laid out is impassable to the north and west due to extensive wetlands; and (3) Gardner Road is a dead-end street rather than a through street.

The Trust argues that the dead-end road should be measured from the intersection of Gardner Road and Pippen's Way, which measures a distance of 830 feet. To support this argument, the Trust states that (1) Gardner Road is a through street; (2) Gardner Road is not impassable to the north and the west of the Subdivision; and (3) adequate emergency access is practical from the north and west.

The Planning Board implicitly agreed with the Trust with respect to the dead-end street issue and concluded that it is proper to measure the length of the dead end road from the intersection of Pippen's Way and Gardner Road. There is no evidence indicating that the Planning Board ever considered that the dead-end street should be measured from the intersection of Gardner Road and Polpis Road. The Planning Board granted no explicit waiver(s) for a dead-end street.

The Rules and Regs do not define a dead-end street, but case law defines a dead-end street as one "that has no exit or continuation." Wheatley v. Planning Bd. Of Hingham, 7 Mass. App. Ct. 435 , 450, n.23 (1979). The primary rationale for limiting the length of dead-end streets is to ensure that public safety personnel can effectively respond to emergencies on streets with only one access point. "[Dead end street regulations] are enacted because of a concern that the blocking of a dead-end street, as by a fallen tree or an automobile accident, will prevent access to the homes beyond the blockage particularly by fire engines, ambulances, and other emergency equipment." Nahigian v. Lexington, 32 Mass. App. Ct. 517 , 521 & n.3 (1992), citing Wheatley, 7 Mass. App. Ct. at 451.

The Planning Board has broad discretion to interpret its own regulations. See Purity-Supreme, Inc. v. Attorney Gen., 380 Mass. 762 , 782 (1980) ("In the absence of clear error, the interpretation an administrative body gives to its own rule is entitled to deference."), citing Finkelstein v. Board of Registration in Optometry, 370 Mass. 476 , 478 (1976) and Federal Trade Comm'n v. Anderson, 442 F.Supp. 1118, 1127 (D.D.C. 1977).

The Subdivision Approval classified Pippen's Way as a "dead-end streetway terminating with a cul-de-sac, approximately 830 feet long." By interpreting its own Rules and Regs, the Planning Board took the position that Gardner Road is a through street, not a dead-end street. Unless Plaintiffs can prove the Planning Board's determination that Gardner Road is not a dead-end street is "clear error," then this court will not overturn the Planning Board's dead-end street determination.

To prove that Gardner Road is not a through street, Plaintiffs rely in part on the waiver for Gardner Road that the Trust was granted pursuant to section 4.03(a)(1) of the Rules and Regs. Section 4.03(a)(1) states in part, "[a] minor subdivision street which, in the opinion of the Board, provides access to abutting lots, and is not intended for use by through traffic..." (emphasis supplied). Plaintiffs contend that this waiver implies that Gardner Road is a dead-end, rather than a through street. It is important to note, however, that section 4.03(a)(1) of the Rules and Regs uses the language "through traffic" rather than "through street," and that "through street" is not a defined term in the Rules and Regs. Even if Gardner Road is not particularly well suited for everyday, non-emergency "through traffic," Gardner Road is certainly not itself a dead-end street. To the north and west of the Pippen's Way/Gardner Road intersection, Gardner Road intersects with both South Valley Road and Middle Valley Road. Both South Valley Road and Middle Valley Road intersect with Shimmo Pond Road, which intersects with Polpis Road. As such, Gardner Road is a through street, not a dead-end street.

Plaintiffs argue that Gardner Road is not a through street, the foregoing notwithstanding, because Gardner Road is impassable to the north and west of the Pippen's Way intersection. The credible testimony of Conley and the Chief of the Nantucket Fire Department, McDougall, is to the contrary. First, Plaintiffs' own traffic expert, Conley, testified that she has traveled by vehicle on several occasions along the secondary access way, via South Valley Road to Gardner Road and then out to Polpis Way.

Moreover, by letter dated June 8, 2007, McDougall informed the Planning Board that with respect to the Subdivision, the "emergency access road is determined adequate." This letter, however, did not indicate which roads provide emergency access to the Subdivision. At trial, McDougall clarified the letter he sent to the Planning Board regarding the fact that there is adequate emergency access to the Subdivision. McDougall testified that emergency vehicles could access the Subdivision via Shimmo Pond Road, up to either South Valley Road or Middle Valley Road, onto Gardner Road to the north and west of the Subdivision, and then down Gardner Road to Pippen's Way.

This secondary access to the Subdivision brings the discussion full circle. As articulated in both Wheatley and Nahigian, the primary purpose for limiting the length of a dead-end street is to ensure emergency vehicles will have access to the dead-end street. As discussed, supra, secondary access via Gardner Road is feasible because Gardner Road is a through street rather than a dead-end.

Plaintiffs also contend that there is no practical or legal emergency access to the Subdivision. In support of this argument, Plaintiffs contend that the owners of lots within the Subdivision have no legal right to travel along Gardner Road to the north and west of the Subdivision. This may be true; however, emergency vehicles certainly have the right to access Gardner Road to the north and west of the subdivision to respond to emergencies. See Thurlow v. Crossman, 366 Mass. 248 , 250-51 (1957) (In a case charging trespass against a law enforcement officer, "defendant in his capacity as enforcement officer was authorized, in the performance of his duties, to 'enter upon and pass through or over private property or lands whether or not covered by water'").

Based on the foregoing, I find that there is secondary emergency access to the Subdivision and that the dead-end street contemplated by the Subdivision Plan is approximately 830 feet and therefore complies with section 4.04 of the Rules and Regs.

(vi) Width of Road Layout and Paved Surface

Plaintiffs argue that the Trust did not seek and the Planning Board did not grant a waiver for the thirty-three (33) foot road layout as planned, versus a forty (40) foot road layout as required by the Rules and Regs. Second, Plaintiffs argue there is no waiver for a paved roadway surface of twenty (20) feet as planned, versus twenty-two (22) feet as required for a secondary subdivision street.

Section 4.03(e) of the Rules and Regs requires a forty foot width for the layout of both a minor subdivision street and a secondary subdivision street. Plaintiffs are correct that the Planning Board did not issue an express waiver. As discussed, supra, however, the Planning Board is not required to list each rule or regulation that it has decided to waive, or to explain the reason for such waivers. See Meyer, 29 Mass. App. Ct. at 170. The trial record, specifically the Subdivision Approval, clearly contemplates a waiver of the forty foot width requirement. First, the Berm and Slope Waiver allows for a shorter berm and a higher slope than is required by the Rules and Regs. The Berm and Slope Waiver was granted to the Trust so that the Trust can fit the "required improvements [to Gardner Road] within the available right of way," i.e. the Easement.

Second, the Shoulder Waiver allows for a smaller shoulder for Gardner Road than is required by the Rules and Regs. A smaller berm and shoulder and a higher slope act to reduce the width of a road. The Waivers provide relief to the Trust so that the Trust can fit Gardner Road, as improved, within the thirty-three foot Easement. The Waivers clearly indicate that the Planning Board understood the Trust was not going to build Gardner Road on a forty foot layout. Accordingly, I find that the Planning Board has granted an implicit waiver to the Trust with respect to section 4.03(e), width of road layout.

Finally, Rules and Regs section 4.03(e) requires a twenty (20) foot paved surface for a minor subdivision street and a twenty-two (22) foot paved surface for a secondary subdivision street. Mulloy testified that the Planning Board treated Gardner Road as a minor subdivision street. The Planning Board understood Gardner Road to be a minor subdivision street, as evidenced by the Berm and Slope Waiver. The Berm and Slope Waiver was granted pursuant to section 4.03(a)(1) of the Rules and Regs, which explicitly refers to minor subdivision streets. [Note 25] Plaintiffs argue that Gardner Road is a secondary street because Gardner Road carries traffic out to Polpis Road, which is a major road.

Once again, absent clear error, this court will not overturn the Planning Board's interpretation of its own Rules and Regs. It is completely rational for the Planning Board to consider Gardner Road a minor subdivision street even though Gardner Road carries traffic out to Polpis Road, which might be a "major street." Gardner Road also carries traffic out to South Valley Road and Middle Valley Road, although neither of those roads would be considered a major road. [Note 26] [Note 27]

Accordingly, I find that it was not clear error for the Planning Board to issue the Subdivision Approval with Gardner Road having a width of twenty feet.

(vii) Lack of Separate Landscaping Plan

The Trust did not file a plan showing existing trees over three inch caliper as required by the Rules and Regs Section 4.16, and sought no waiver of that requirement. Mulloy testified that he has never prepared a separate plan as required by Section 4.16 on any of the other plans approved by the Planning Board in the past, and that the Planning Board has never required or requested one. Certainly, in this case, the Planning Board did not request such a plan. The Planning Board's power to forego application of all rules and regulations "in the public interest" is invested with a "large measure of judgment or discretion." Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). See also Lyman v. Planning Bd. of Winchester, 352 Mass. 209 , 213-214 (1967); North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 , 443 (1981); Windsor v. Planning Bd. of Wayland, 26 Mass. App. Ct. 650 , 657 (1988).

There is evidence, more than just the Subdivision Approval, that the Planning Board waived the requirement that the Trust submit a landscaping plan. The Subdivision Plan included elements of existing and proposed new landscaping, including trees, even though the Trust did not submit a separate and dedicated landscape plan showing all trees over three inches caliper. Furthermore, the Planning Board never requested such a plan from the Trust, nor has it required or requested such a plan from Mulloy for any of the subdivisions he has designed on Nantucket in the past. The Planning Board also granted an express waiver of Section 5.04 of the Rules and Regs (entitled "ON SITE DISPOSAL OF BRUSH AND TREES"), which requires an on-site disposal area of brush and trees, because the Subdivision Plan calls for chipping all debris. As a result of the foregoing I find that the Planning Board waived the requirement of Section 4.16 of the Rules and Regs requiring submission of a separate landscaping plan.

Based on the foregoing, I find that the Planning Board did not exceed its authority in approving the Subdivision Plan.

C. Scope of the Easement Within Gardner Road.

In Land Court Decision 1, this court ruled that the Trust holds a registered easement to use Gardner Road for access to Polpis Road. This court held that the Easement included all of Gardner Road to the north and east of the Subdivision. It is now necessary to address the Trust's argument that its easement rights include the right to improve Gardner Road. The Trust claims that the Easement includes the right to widen, pave, and re-grade Gardner Road. Plaintiffs assert that the Easement is limited to using Gardner Road as it existed on the ground when the Easement was created.

The Trust also claims that it has the right to install a drainage and water infiltration system under Gardner Road pursuant to either its common law easement rights or G.L. c. 187 § 5. Plaintiffs argue that G.L. c. 187 § 5 does not apply because the Trust did not receive its easement rights by deed and the Trust Property does not abut Gardner Road. In the alternative, Plaintiffs argue that G.L. c. 187 § 5 does not include the right to install a drainage and water infiltration system under Gardner Road.

Plaintiffs also contend that Gardner Road is a private road and even if the Trust has the right to improve Gardner Road, the Trust's use of Gardner Road will overburden the Shawkemo Property. Finally, Plaintiffs allege that the various improvements to Gardner Road will be a conversion of the Shawkemo Property and constitute a trespass and/or a nuisance.

(i) Right to Improve Gardner Road

Plaintiffs argue that the Trust has no right to improve Gardner Road. Plaintiffs recognize that Land Court Decision 1 held that the Trust has a registered easement over Gardner Road based on the 1927 Certificate, which states there is a right of way appurtenant to the Trust Property over Gardner Road to Polpis Road. This holding in Decision 1 notwithstanding, Plaintiffs contend that the Easement must be an easement by prescription because there is no evidence proving that the Easement was created by necessity, implication, or grant. Plaintiffs argue easements by prescription are limited to the uses that created them and the use of the easement when it was established. See Adams v. Planning Board of Westwood, 64 Mass. App. Ct. 383 , 392 (2005); Cumbie v. Goldsmith, 387 Mass. 409 , 411-412 (1982).

In response, the Trust distinguishes this principal by pointing out that the Easement is a registered easement. "The effect of the issuance of the original certificates of title involved in this case, therefore, was to create rights to the claimed easements as if by express grant." Lasell College v. Leonard, 32 Mass. App. Ct. 383 , 387 (1992); see also Dubinsky v. Cama, 261 Mass. 47 , 55-56 (1927) (the issuance of a certificate of title and its corresponding decree give easement rights to the petitioner as if they were obtained by grant). [Note 28]

The Easement is not as limited as Plaintiffs would have it. The Trust Certificate and the 1927 Certificate contain no limitations as to use, nature, and formation of the Easement. Pursuant to the principles announced in Lasell College and Dubinsky, I find that the Trust holds the Easement as if it were created by express grant.

Easement rights in a way "include a right to make reasonable repairs and improvements to those ways and install utilities." Post v. McHugh, 76 Mass. App. Ct. 200 , 206 (2010). "Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs, if necessary to enjoyment of [an] easement." Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981). "Where the easement arises by grant and not by prescription, and is not limited in its scope by the terms of the grant, it is available for the reasonable uses to which the dominant estate may be devoted." Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 82 (2004), citing Parsons v. New York, N.H. 7 H.R.R., 216 Mass. 269 , 273 (1913). The use of the easement "must be consistent with what the parties reasonably anticipated at the time of the establishment of the way." Cerasuolo, 62 Mass. App. Ct. at 82. An easement holder cannot make any changes to the grade or surface of a private way if the changes make the way less convenient and useful to any other party with rights in the way. See Crowley v. J.C. Ryan Construction, Inc., 356 Mass. 31 , 35 (1969).

The Trust relies in part on Cerasuolo to prove that it has the right to improve Gardner Road, expand its width, and increase traffic on Gardner Road. In Cerasuolo, the defendant held an easement by necessity over a bike path owned by the town of Bedford. Cerasuolo, 62 Mass. App. Ct. at 564-565. In the late 19th and early 20th centuries, the defendant's land had been used for farming, and for the latter part of the 20th century, the land lay vacant and unused. Id. The defendant sought to construct a 258 unit apartment complex on the property and she needed to increase the scope of the easement. Id. at 564. The increased use of the easement included an estimated 1,860 vehicle trips per day over the easement and an expansion of the easement from 6 1/2 - 7 feet to 24 feet. Id. Upon remand from the Appeals Court, a Land Court judge determined that the increased use and scope of the easement was foreseeable and a reasonable use of the easement. Feltman v. Cerasuolo, 13 LCR 450 , 452 (2005). In support of her decision, which was upheld on appeal (in a Rule 1:28 Order), the Land Court judge found the increased scope was a reasonable use of the easement because of, inter alia, the large size of the parcel and the defendant's predecessors' use of the entire parcel. Id. at 451.

On the other hand, Plaintiffs put a great deal of weight on Crowley. In Crowley, plaintiffs and defendant had a right to pass over a private way. Crowley, 356 Mass. at 32. As part of its subdivision plan, defendant raised the grade of the private way, paved it, and installed curbs. Id. Consequentially, the plaintiff's house was below the grade of the road and plaintiffs may have sustained actual money damages. Id. at 35. Moreover, the increased grade did not improve the road for travel, but merely made it possible for the defendant to construct a house. Id. The facts at bar lend themselves more to the reasoning of the court in Cerasuolo. When the Easement was registered in 1927, it was foreseeable that the Trust Property would be subdivided and the use of Gardner Road would be intensified. The Trust Property is a large tract of land located very close to Nantucket Sound. Nantucket is a small island where real estate is a limited commodity. Single family homes close to Nantucket Sound are desirable properties. As such, it is completely reasonable to believe that the twenty acre Trust Property could be subdivided into single family homes in close proximity to Nantucket Sound.

Furthermore, the neighborhood surrounding the Trust Property has developed into a residential area thereby lending further support that residential use of the Trust Property was foreseeable. For example, the predecessor to Shawkemo subdivided the Shawkemo Property and built a number of houses thereon. Portions of the Moors End Farm have also been divided into separate residential lots. Considering these factors, I find that the use of Gardner Road appurtenant to a subdivision is a reasonable use of Gardner Road that was foreseeable at the time the Easement was registered.

Considering the reasoning of both Cerasuolo and Crowley, the proposed improvements to Gardner Road do not overburden the Shawkemo Property. First, it cannot be said that the increased traffic will be so dramatic as to overburden the Shawkemo Property. Plaintiffs' traffic expert anticipated an additional 192 trips per day, compared to the increased daily trips in Cerasuolo of 1,680.

Second, the paving and increased slope of Gardner Road also do not overburden the Easement. The Subdivision Plan contemplates a small subdivision and the Trust is merely paving Gardner Road, not substantially widening its layout. Unlike Crowley, the paving and increased slope of Gardner Road will be a significant improvement to Gardner Road. As it exists now, Gardner Road is merely a dirt track. Paving Gardner Road will improve its navigability not only for the owners of the Trust Property, but for Plaintiffs as well. Cf. Crowley ("[t]he change was made to by [defendant] not to improve [the private way] for purposes of travel..."); see also Glenn v. Poole, 12 Mass. App. Ct. 292 , 296 (1981) ("We do not think an improvement so consistent with safety goes beyond [scope of easement principles.]"

Finally, Plaintiffs contend that clearing of trees within the Easement, and thus on the Shawkemo Property, constitutes a conversion. However, the clearing of trees and limbs along a road "have been condoned as reasonable repairs, if necessary to the enjoyment of the easement." Id, citing Guillet v. Livernois, 297 Mass. 337 , 340 (1937). Accordingly, if Plaintiffs must clear limbs and trees from the Easement, they are entitled to do so. [Note 29] [Note 30] Based on the foregoing, I find that the improvements to Gardner Road do not overburden Plaintiffs' rights.

(ii) Applicability of G.L. c. 187 § 5

G.L. c. 187 § 5 states in relevant part:

The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private way pipes, conduits, manholes and other appurtenances necessary for the transmission of gas, electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways...

Plaintiffs' first argument under G.L. c. 187 § 5, is that the statute does not apply because (1) the Trust was not granted its easement rights by deed and (2) the Trust Property does not abut Gardner Road. As discussed, supra, courts treat a registered easement, unlimited in scope, as if it was granted by deed. See Lasell College, 32 Mass. App. Ct. at 387. As such, I shall treat the Easement as if it were granted by deed for the purpose of analyzing G.L. c. 187 § 5. [Note 31]

Plaintiffs' argument that the Trust Property does not abut Gardner Road also fails. In Land Court Decision 1, I specifically found that the entire northern boundary of the Trust Property abuts Gardner Road. There is nothing in the trial record to prove otherwise. Based on the foregoing, I find that G.L. c. 187 § 5 applies to the Trust Property and the Easement appurtenant thereto to use Gardner Road.

The Trust argues the right to install appurtenances necessary for the transmission of water or water service includes the right to install its drainage system under Gardner Road. Plaintiffs take a more narrow approach, arguing that "water service" should be strictly interpreted to mean public water utilities, i.e. sewer and water services, rather than a private drainage system. The question, in essence, is whether stormwater drainage and infiltration systems are utilities of the type encompassed by G.L. c. 187 § 5.

G.L. c. 187 § 5 has been amended several times and has been broadly interpreted by the courts. Courts have found that private utilities fall within a broad spectrum of rights given to easement holders by G.L. c. 187 § 5. See Robinson v. Bd. of Health of Chatham, 58 Mass. App. Ct. 394 (2003) (easement holder to right of way had right to install private septic system under the way). Similar to a drainage and storm water transmission system, a private septic system is not specifically listed in the G.L. c. 187 § 5 as a utility. The Trust also cites Peters v. Zaltman, 8 LCR 260 (2000), a Land Court decision declaring defendant's right under G.L. c. 187 § 5 to install utilities, including "drainage utility lines" in a subdivision access road.

The Trust's arguments are convincing. Nothing in the statute demonstrates that the right to construct "pipes, conduits...and other appurtenances necessary for the transmission of... water" applies only to water for home consumption but not to the transmission of groundwater for the purposes of drainage. Such a system is necessary to reasonable use of the private way and adjoining land. As such, I find that the Trust has the right to install its drainage system pursuant to G.L. c. 187 § 5.

Next, Plaintiffs claim that the installation of the water drainage and infiltration system will unreasonably obstruct Gardner Road and will be inconsistent with Plaintiffs' use of Gardner Road. Woven within this argument is Plaintiffs' renewed contention that the drainage system will fail and the improvements to Gardner Road will cause runoff onto Plaintiffs' property, which constitutes a nuisance and/or trespass. Plaintiffs' argument that the drainage system will fail is speculative at best. As discussed above, the Trust has the right to install its drainage system under Gardner Road. Contrary to Plaintiffs' contention, this permitted use is not "per se" unreasonably obstructive nor does it interfere with Plaintiffs' use of Gardner Road. Accordingly, I find that the Trust's improvements to Gardner Road are not unreasonably obtrusive and do not interfere with Plaintiffs' use of Gardner Road. [Note 32]

(iii) Nuisance/Trespass

The distinction between the torts of trespass and nuisance is "that trespass is an invasion of the plaintiff's interest in the exclusive possession of his land, while nuisance is an interference with his use and enjoyment of it." Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 90-91 (2005), citing Prosser & Keeton, Torts § 87, at 622. "A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it ... A nuisance is an interference with the interest in the private use and enjoyment of the land, and does not require interference with the possession." Amaral, 64 Mass. App. Ct. at 91, quoting Restatement (Second) of Torts § 821D comment d (1979). The regular and frequent nonpermissive propulsion of physical objects onto an adjacent property constitutes a continuing trespass. Id.

Plaintiffs claim that the new paved surface and the infiltration system will create various channels of water, some of which will flow onto the Shawkemo Property, resulting in a trespass or a nuisance. This argument is premised on Plaintiffs' theory that the drainage system designed by Mulloy will fail. As discussed, supra, I found Mulloy's testimony to be credible with regard to the proper functioning of the drainage system. Shaw contends, however, that there will be excessive runoff onto the Shawkemo Property. Mulloy credibly testified, and his testimony was not materially impeached, with respect to the proper functioning of his drainage system and water flow. Moreover, I found that the improvements to Gardner Road are reasonable. Accordingly, I find that there is not enough evidence in the record to prove that the improvement to Gardner Road will result in a nuisance or trespass onto the Shawkemo Property.

Judgment to enter accordingly.