FREEMAN H. ALLISON v. PETER J. NYBERG, JAMES MARCELINE, GERALD D. COUGHLAN, SALLY A. COUGHLAN, and ANGELO LA MANTIA, BRUCE NIGHTINGALE, GEORGE W. DINSMORE, MATTHEW HART, LARRY BROPHY, WILLIAM STOLTZ, and ELAINE BELLEFEUILLE, as MEMBERS OF THE TOWN OF HARWICH PLANNING BOARD
MISC 05-309537
November 8, 2012
BARNSTABLE, ss.
Scheier, C.J.
JUDGMENT
This action arises from the Harwich Planning Boards approval of a definitive plan creating a subdivision of land off Headwaters Drive in Harwich (Subdivision Plan). Plaintiff Freeman H. Allison (Allison) challenged the Boards approval of the Subdivision Plan by the filing of a complaint in this court on May 18, 2005, under Section 81BB of G. L. c. 41 (subdivision control law). Allison alleged that the Board exceeded its authority in approving the Subdivision Plan because Allison and not Marceline owned a portion of the land shown on the Subdivision Plan. In count II of Allisons complaint, he seeks to quiet title in himself, asserting a one-third fee interest in a portion of the land shown on the Subdivision Plan, and, in addition, claims the same ownership interest in additional land that extends westerly of the land shown on the Subdivision Plan, along the rear lot lines of lots 1 through 5. That additional land is not the subject of this action. [Note 3]
Prior to trial, the parties stipulated that the lands owned by Allison and Marceline are abutting parcels, but all parties agreed that there is a dispute as to the location of that common boundary line (the location of the Old Brewster Harwich Road, so-called). It was therefore decided that there would be an initial phase of the trial, meant to determine the location of the Old Brewster Harwich Road, as it is called in the Decision.
A seven-day trial was held on July 21 through 23, 2009, December 7 through 9, 2009, and February 1, 2010. [Note 4] A decision in Plaintiffs favor, dated April 27, 2012, as affected by an Amended Decision dated November 8, 2012, has issued declaring the boundary between the parties properties to be in the location asserted by Plaintiff. [Note 5] In accordance with the Amended Decision, it is hereby:
ADJUDGED and ORDERED that the location of the Old Brewster Harwich Road that is the
common boundary between the land owned of record by Plaintiff and land owned of record by Defendant Marceline, is the line shown as Overgrown Vehicle Tracks (Deemed to be Old Brewster/Harwich Road by this Decision)on the Decision Sketch Plan A, attached to the Amended Decision and attached hereto; and, as a result of that ruling, it is further
ADJUDGED and DECLARED that Defendant Marceline has no claim of title to the land westerly of the Overgrown Vehicle Tracks shown on the Subdivision Plan; it is further
ADJUDGED and ORDERED that approval of Defendants Subdivision Plan is hereby ANNULLED ; it is further
ADJUDGED and ORDERED that all counterclaims are DISMISSED.
So ordered.
By the court (Scheier, C.J.)
FOOTNOTES
[Note 1] John D. Hallisey was added as a party as to Count II only, upon the allowance of his motion to intervene on September 6, 2006. He waived any right to intervene on Count I. He was nominally aligned with Plaintiff Alison at trial, although they were not in agreement on all aspects of the case.
[Note 2] In a stipulation filed with the Court on April 15, 2009, the parties agreed that all claims against Nyberg were dismissed with prejudice, without costs or attorneys fees to any party, and with all rights of appeal waived. Defendant James Marceline was substituted for Nyberg.
[Note 3] Mr. Hallisey asserts a claim for a one-third undivided interest in the land shown on the Subdivision Plan.
[Note 4] The Planning Board of Harwich members did not participate in the trial.
[Note 5] The parties were given an opportunity to comment on the April 27, 2012 Decision and, as a result of their comments, certain changes were made, which resulted in the issuance of the Amended Decision today. The parties all agreed that Judgment could now issue.