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. A decision of today's date ("Land Court Decision 2") has been issued.
In accordance with Land Court Decision 1 and Land Court Decision 2, it is hereby
ORDERED and ADJUDGED that Shawkemo's Motion to Strike or Limit Affidavit of Catherine Flanagan Stover is DENIED
ORDERED and ADJUDGED that Shawkemo's Motion to Strike or Limit Exhibits J and K in the Trust's Appendix of Cited Documents is DENIED. [Note 3]
ORDERED and ADJUDGED that the Trust has the benefit of a registered easement over Gardner Road as access to Polpis Road, as described in the 1927 Certificate.
ORDERED and ADJUDGED that the Trust's registered easement in Gardner Road applies to all of Gardner Road as Gardner Road is shown on the 1927 Plan and 1931 Plan.
ORDERED and ADJUDGED that I DENY Shawkemo's Partial Motion for Summary Judgment and ALLOW the Trust's Partial Motion for Summary Judgment, consistent with Land Court Decision 1.
ORDERED and ADJUDGED that Shawkemo has standing to challenge the Subdivision Approval.
ORDERED and ADJUDGED that Bennett has standing to challenge the Subdivision Approval.
ORDERED and ADJUDGED that Moors End does not have standing to challenge the Subdivision Approval.
ORDERED and ADJUDGED that NLC has standing to challenge the Subdivision Approval.
ORDERED and ADJUDGED that Shimmo, McGrady and Richard Glidden, Trustee do not have standing to challenge the Subdivision Approval. [Note 4]
ORDERED and ADJUDGED that the Planning Board did not abuse its discretion in granting the Subdivision Approval as it relates to ESHGW testing.
ORDERED and ADJUDGED that the Planning Board did not abuse its discretion in approving the Subdivision with respect to the Trusts' soil classifications.
ORDERED and ADJUDGED that the Planning Board did not abuse its discretion in approving the Subdivision with respect to the DA-10 drainage issues.
ORDERED and ADJUDGED that with respect to the drainage issues, the Subdivision Approval is not arbitrary and capricious.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED that the Planning Board has granted an implicit waiver to the Trust with respect to section 4.03(e), width of road layout.
ORDERED and ADJUDGED that it was not clear error for the Planning Board to issue the Subdivision Approval with Gardner Road having a width of twenty feet.
ORDERED and ADJUDGED that the Planning Board waived the requirement of Section 4.16 of the Rules and Regs requiring submission of a separate landscaping plan.
ORDERED and ADJUDGED that the Planning Board did not exceed its authority in approving the Subdivision Plan.
ORDERED and ADJUDGED that the Trust holds the Easement as if it were created by express grant.
ORDERED and ADJUDGED 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.
ORDERED and ADJUDGED that the improvements to Gardner Road do not overburden Plaintiffs' rights.
ORDERED and ADJUDGED that G.L. c. 187 § 5 applies to the Trust Property and the Easement appurtenant thereto to use Gardner Road.
ORDERED and ADJUDGED that the Trust has the right to install its drainage system pursuant to G.L. c. 187 § 5.
ORDERED and ADJUDGED that the Trust's improvements to Gardner Road are not unreasonably obtrusive and do not interfere with Plaintiffs' use of Gardner Road. [Note 5]
ORDERED and ADJUDGED 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.
By the court. (Sands, J.)
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