HARROWBY PROPERTY CO., LTD. vs. DAVID O. DOUGLAS, SUSAN S. SILVA, VIRGINIA C. JONES, LEAH SMITH, EILEEN MALEY and JAMES POWELL, as they constitute the Planning Board of the Town of West Tisbury, and THE PLANNING BOARD OF THE TOWN OF WEST TISBURY.

Harrowby Property Co., Ltd. (“Harrowby”) filed its unverified complaint in 09 MISC 405508 (AHS) on July 10, 2009, appealing, pursuant to the provisions of G. L. c. 41, § 81BB, a decision (“Planning Board Decision 2”) of Defendant Town of West Tisbury Planning Board (the “Planning Board”) which denied approval of a modification to a subdivision plan (the “Modified Subdivision Plan”). The Planning Board filed its Answer on July 31, 2009. A case management conference was held on September 16, 2009. This court issued a Remand Order (the “2009 Remand Order”) dated October 30, 2009, for the limited purpose of having the Planning Board set forth findings and specific reasons for Planning Board Decision 2. The Planning Board issued a Supplemental Decision (“Planning Board Decision 3”) dated November 23, 2009. Harrowby filed its First Amended Complaint on December 9, 2009, appealing Planning Board Decision 3. The Planning Board filed its Answer on December 24, 2009.

Harrowby filed its Motion for Summary Judgment on January 20, 2010. On March 1, 2010, the Planning Board filed its Cross-Motion for Summary Judgment. A hearing was held on all motions on August 25, 2010, and at that hearing the parties discussed mediation. By letter to this court dated October 13, 2010, the parties reported that mediation would not be productive, and the matter was taken under advisement. A Decision and Judgment of this court were issued on April 26, 2011 (“Land Court Decision 1” and the “Judgment,” respectively), which determined that Planning Board Decision 3 was arbitrary and capricious and remanded the matter to the Planning Board (the “2011 Remand Order”). [Note 1] As a result of the 2011 Remand Order, the Planning Board issued its decision on June 27, 2011 (“Planning Board Decision 4”). Harrowby filed its Second Amended Complaint in case 09 MISC 405508 on July 5, 2011, challenging several conditions to Planning Board Decision 4. The Planning Board filed its Answer on July 27, 2011.

Plaintiffs William W. Graham (“Graham”), 100 John Cottle Road LLC (“100 LLC”) and 170 John Cottle Road, LLC (“170 LLC”) (together “Plaintiffs”) filed their unverified Complaint in case 11 MISC 450745 on July 18, 2011, pursuant to G. L. c. 41, §81BB, appealing Planning Board Decision 4, which approved the Modified Subdivision Plan, with conditions, relative to land owned by Dunster Realty, LLC (“Dunster”) and Harrowby (which, together with the Planning Board, shall be referred to hereinafter as “Defendants”). [Note 2] On July 28, 2011, Harrowby filed its Answer. On August 2, 2011, the Planning Board filed its Answer. A case management conference was held on September 28, 2011. At a status conference held on October 18, 2011, cases 09 MISC 405508 and 11 MISC 450745 were consolidated. Harrowby filed a Motion to Dismiss Plaintiffs’ Complaint for Lack of Standing on February 17, 2012. Plaintiffs filed an Amended Complaint on March 23, 2012, adding a count pursuant to G.L. c. 231A, seeking a declaratory judgment relative to Harrowby’s claimed right of access to its lot over John Cottle Road (the “Road”). Harrowby filed its Answer and Counterclaim to Plaintiffs’ Amended Complaint, on April 12, 2012, alleging easement rights in the Road. The Planning Board filed its Answer to Plaintiffs’ Amended Complaint on April 24, 2012. On May 16, 2012, Plaintiffs filed their Reply to Harrowby’s Counterclaims. Harrowby filed its Amended Counterclaims on August 20, 2012, asserting rights in the Road. Plaintiffs filed their Reply to Harrowby’s Amended Counterclaims on August 30, 2012.

On February 1, 2013, Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Statement of Undisputed Facts, and Affidavits of William W. Graham, Edward A. Rainen, Esq. (“Rainen”), Matthew P. Shute, and Sander A. Rikleen, Esq. On the same day Harrowby filed its Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, and Affidavits of Paul Levey (“Levey”), Eric L. Peters, Esq., Brian M. Hurley, Esq., Jesse W. Abair, Esq., and Bart Smith. The Planning Board filed its Cross-Motion for Summary Judgment on February 27, 2013. Harrowby filed its Opposition to Plaintiffs’ summary judgment motion on March 1, 2013, together with Affidavit of Cara J. Daniels, Esq., and Motion to Strike Affidavit of Rainen. On the same day, Plaintiffs filed their Opposition to Harrowby’s summary judgment motion, and Affidavits of Kristoffer S. Lukowitz (“Lukowitz”), Richard S. Bryant (traffic expert), Second Affidavit of Edward A. Rainen, Esq. and Second Affidavit of Sander A. Rikleen, Esq., and Motion to Strike Portions of the Levey Affidavit and Portions of Statement of Material Facts. On March 22, 2013, Harrowby filed Affidavit of Elizabeth A. Bailey, and its Motions to Strike Portions of the Lukowitz Affidavit and the Second Rainen Affidavit. Plaintiffs filed their Opposition to the Planning Board’s Cross-Motion on April 1, 2013. On April 22, 2013, Plaintiffs filed their Reply memorandum, and Harrowby filed its Opposition to Plaintiffs’ Motion to Strike and Reply to Plaintiffs’ Opposition to the Planning Board’s Cross-Motion. Plaintiffs filed their Reply memorandum, Opposition to Strike the Second Rainen Affidavit, Opposition to Strike Portions of the Lukowitz Affidavit, and Opposition to Motion to Strike Affidavit of Rainen on April 24, 2013. A hearing on all of the motions was held on April 29, 2013, and the matter was taken under advisement.

I find that the following material facts are not in dispute:

Locus, Plaintiff Property, and the Subdivision Proceedings:

1. Harrowby is the record owner of property located at 245 John Cottle Road (“Locus”).

2. Graham is the owner either individually, beneficially, or as Trustee of property located at 155 John Cottle Road, 40 Simon Athearn Road, and 10 John Cottle Road. 100 LLC owns property located at 100 John Cottle Road by deed dated January 20, 2009, recorded with the Registry at Book 1173, Page 477. 170 LLC owns property located at 170 John Cottle Road, by deed dated January 20, 2009, recorded with the Registry at Book 1173, Page 475. Graham is the Manager of 100 LLC and 170 LLC. 155 John Cottle Road, 40 Simon Athearn Road, 10 John Cottle Road, 100 John Cottle Road and 170 John Cottle Road are hereafter referred to as “Plaintiff Property.” None of Plaintiff Property is registered land. Plaintiff Property is accessed by Lambert’s Cove Road, and then by John Cottle Road, i.e. the Road.

3. The Road, which is an unpaved private road in West Tisbury, Massachusetts, begins at a point on Lambert’s Cove Road (a public road) and a portion of Plaintiff Property, more specifically, Lot 1.2 as shown on the Town of West Tisbury Assessors’ Map, prepared by Schofield Brothers Inc. (the “Assessors Map”). The Road runs along the northern boundary of Lot 21 on the Assessors Map and then briefly splits into two with one strand each running along the northern and the southern boundary of Lot 21 as shown on the Assessors’ Map. The Road then comes back together on Lot 14, as shown on the Assessors Map, which is a portion of Plaintiff Property and directly abuts Lot 21 to the west. The Road then meanders in a westerly direction through Plaintiff Property for more than one mile before it reaches Locus. All of the land between Locus and Lambert’s Cove Road over which the Road travels is included within Plaintiff Property, except for Lot 21. The Road is the primary access from Locus and the land owned by Dunster (the “Dunster Property”) to a public road. If Harrowby had rights in the following roads (which facts are not before this court), a secondary but much longer means of access from Locus to a public way is down Obed Daggett Road, over Indian Hill Road, and out onto State Road. [Note 3]

4. On April 12, 1993, the Planning Board approved (“Planning Board Decision 1”) a definitive subdivision plan of registered land located off John Cottle Road in West Tisbury, MA and titled “Subdivision Plan of Land in West Tisbury” prepared by Vineyard Land Surveying and dated December 30, 1993 (the “1993 Subdivision Plan”), creating Lots 1-5 as shown on the 1993 Plan (the “Subdivision Property”). [Note 4]/ [Note 5] Locus is shown as Lot 4 on the Subdivision Plan and appears to be Lot 7.2 on the Assessors Map. Dunster is the owner of Lot 2 and Lot 3 as shown on the Subdivision Plan, which appear to be Lot 7.1 and Lot 7, respectively, on the Assessors Map. The subdivision road, shown as “WAY (40.00 wide)” on the 1993 Plan, was a dead-end street longer than 500 feet which ended in a hammer-head shape rather than a cul-de-sac (the “Subdivision Road”). The Subdivision Road connected to the Road at the southeastern corner of Locus. No neighbors, including Graham, opposed or objected to the 1993 Subdivision Plan during the Planning Board’s review process.

5. On April 3, 2009, Harrowby filed an application (the “Application”) with the Planning Board for approval of a modification of the 1993 Subdivision Plan. The Application proposed to relocate and abandon the Subdivision Road and create a new subdivision road (the “Modified Subdivision Road”) to the southwest of the Subdivision Road, as shown on the Modified Subdivision Plan, which is titled “Sketch Plan of Land in West Tisbury, Mass. Prepared for Harrowby Property Company, Ltd.,” dated February 2, 2009, and prepared by Vineyard Land Surveying & Engineering, Inc. The Application and the Modified Subdivision Plan intended to use a portion of the Subdivision Road as a driveway to Locus. Public hearings were held on May 18 and June 22, 2009, and after the public hearing was closed, the Planning Board issued Planning Board Decision 2 on June 22, 2009, denying the Modified Subdivision Plan.

6. In Land Court case 09 MISC 405508, Harrowby appealed Planning Board Decision 2 on July 10, 2009. This court issued the 2009 Remand Order on October 30, 2009, and ordered that Planning Board Decision 2 be remanded to the Planning Board:

for the limited purpose of setting forth findings and specific reasons in support of the Board’s decision to deny a modification to the approved subdivision plan. The original decision shall not be superceded by any supplemental written decision of the Board . . . The Board shall not conduct a new public hearing, the original public hearing having been closed on June 22, 2009, and shall not accept or consider any new evidence with respect to the proposed modification.

7. The Planning Board held hearings on November 16, 2009, and November 23, 2009. In Planning Board Decision 3, the Planning Board made additional findings and statement of reasons for the denial.

8. In Land Court Decision 1 and the Judgment, this court found that Planning Board Decision 3 was arbitrary and capricious, that there may be feasible remedies for each concern expressed in Planning Board Decision 3. On April 26, 2011, this court issued the 2011 Remand Order (together with Land Court Decision 1 and the Judgment) requiring the Planning Board to “issue a new decision in accordance with [Land Court Decision 1].”

9. Without holding a new public hearing, on June 27, 2011, the Planning Board voted 5-0 to approve the Modified Subdivision Plan with twelve conditions (the “Vote”), and the Planning Board filed its decision (Planning Board Decision 4) with the West Tisbury Town Clerk on June 28, 2011. Planning Board members James Powell (“Powell”) and Beatrice Phear (“Phear”) participated in the Vote notwithstanding the fact that they were not present for the public hearings relative to the Modified Subdivision held on May 18, 2009 and June 22, 2009. Several findings and conditions of Planning Board Decision 4 are as follows:

Condition 1 states:

1. The existing subdivision road, as shown on the original definitive subdivision plan and as it exists on the ground, shall be abandoned and removed and replaced with plantings of indigenous trees and shrubs. Access to the existing subdivision road from the new subdivision road shall be blocked with plantings of indigenous trees and shrubs. This condition shall not apply to any portion of the existing subdivision road that is located within the driveway that will provide access to the buildings on [Locus] from the new subdivision road.

Condition 2 states:

2. The driveway that will provide access to the buildings on [Locus] from the new subdivision road shall be laid out and constructed so that it a.) intersects or connects to the new subdivision road at as near a right angle as possible; and b.) is located as close as possible to the common lot line between Lot 3 and Lot 4 from the new subdivision road to the point where the existing driveway for Lot 4 intersects with the existing subdivision road.

Condition 4 states:

4. At the end of the proposed relocated road, a turnaround or cul-de-sac having an outside roadway diameter of at least 150 feet and a property line diameter of at least 115 feet shall be provided as required by the second Paragraph of Section 5.1-4 of the [Rules and Regs]. The turnaround or cul-de-sac shall be subject to review and approval by the fire chief and road inspector.

Condition 8 states:

"8. No RoundUp or Glyphosate is to be used or applied anywhere on the land comprising the subdivision roadway relocation project.”

Finding 3 recognizes that a portion of the existing Subdivision Road will be used as a driveway for Locus and then it states:

...Allowing a dead-end street in excess of 500 feet in length in addition to most of the existing subdivision road does not give adequate protection to the safety and convenience of the present and future inhabitants of the Town or of prospective purchasers of land within the subdivision in that it would allow two long narrow access ways, in close proximity to each other, within the same subdivision, without adequate turnaround and turnouts on both ways and will be confusing to persons traveling on the ways.

Finding 4 states:

4. A turnaround or cul-de-sac is not provided at the end of the proposed relocated road. The lack of such a turnaround at the end of the proposed relocated road will make it difficult or impossible for fire apparatus and other large public safety vehicles to maneuver or turnaround and will not give adequate protection to the safety and convenience of the present and future inhabitants of the Town or of prospective purchasers of land within the subdivision.

10. In his Affidavit, Richard S. Bryant (“Bryant”) testified that construction of the Modified Subdivision Road would cause an additional twenty-two trips per day over the Road for twenty-six days of construction, on a best case scenario. He further attested that many “of the trips will involve large commercial vehicles including rack trucks, excavators, chippers, bulldozers, graders, rollers, loaders, and backhoes.” Bryant attested that there will be at least two additional trips each year to inspect the retaining wall that will be built as part of the Modified Subdivision Road. Bryant further attested that the landscape plantings that will replace a portion of the Road as it currently exists and will require landscaping resulting in approximately sixty additional trips over the Road annually. Finally, Bryant attested that the increased commercial vehicle traffic during construction will cause permanent soil erosion, air and dust emissions, and damage to vegetation. Bryant, Graham, and others testified in depositions that commercial vehicles that are unfamiliar with the Road tend to drive faster than residents, which causes serious safety concerns for pedestrians and bikers along the Road.

11. Reed Silva (“Silva”), a professional civil engineer, submitted an Affidavit on behalf of Harrowby regarding the effects of construction of the Modified Subdivision Road. Silva testified that the work relating to the Modified Subdivision Road can be broken down into three categories: (1) tree cutting, which will take one day to complete and six trips over the Road; (2) construction of the Modified Subdivision Road, which will take two days to complete, and six trips with heavy equipment, thirteen trips with materials, and four trips with small equipment and laborers; and (3) construction of a retaining wall, which will take two days to complete and two trips over the Road. Silva concluded that the entire project will take result in fifty-two total trips over the Road over the course of five days of construction. Silva did not opine as to the additional trips resulting from the necessary maintenance of the portion of the Road that must be replaced with plantings and landscaping pursuant to Condition 1. In the Affidavit of Bart Smith (the “Smith Affidavit”), Mr. Smith attested that “[a hammerhead design] has functioned well [since the 1993 Subdivision Plan was approved] and there have been no incidents related to the safety and convenience of the road’s users, including the town’s public safety vehicles.”

Title.

12. By deed dated March 28, 1911 (the “1911 Deed”), John Cottle conveyed to Mary W. Butler (“Butler”) certain land at Lambert’s Cove in West Tisbury. [Note 6] The 1911 Deed makes reference to the Road and states that John Cottle also conveyed, “together [with Parcel 2 conveyed in the 1911 Deed] with a right of way from the Lambert’s Cove Road so called, to the granted premises...by the road now traveled, known as aforesaid as the John Cottle Road to all the premises herein described.” By deed dated August 9, 1911, Bartimus Luce conveyed a parcel of land to Butler abutting land previously conveyed to Butler.

13. By deed dated July 10, 1943 (the “1943 Deed”), Butler conveyed a parcel of land shown on Plan 19164A (the “Smith Property”) to Albridge C. Smith and Margaret Righter Smith (the “Smiths”). The 1943 Deed included an easement from the Smith Property “out to the main road through Lambert’s Cove.” The Smiths were issued an original Certificate of Title in Land Court Registration Case 19164 on March 28, 1945 relative to the Smith Property. Registration Decree 19164 states that appurtenant to the Smith Property was a right of way (the “Registered Smith Easement”) “over land of [Butler] out to the Main Road through Lambert’s Cove as set forth in [the 1943 Deed].” Sheets 1 and 2 of Plan 19164A (the “Smith Registration Plan”) depict a right of way (“Simon Athearn Road”) running from the southeastern boundary of the Smith Property, over the land of Butler, in a northern direction. Simon Athearn Road intersects with another right of way, which is the Road. From the intersection with Simon Athearn Road, the Road meanders in a northwesterly towards Locus. The Road (as shown on the Smith Registration Plan) also meanders in a southeasterly direction from its intersection with Simon Athearn Road over Plaintiff Property towards what is depicted on the Smith Registration Plan as “MAIN ROAD to Lambert’s Cove.” The Smith Property abuts Lot 5, as shown on the 1993 Subdivision Plan, to the south.

14. By instrument dated March 23, 1948 (the “1948 Austin Easement”), and recorded with the Registry at Book 212, Page 273, Butler granted an easement over the Road to James A. Austin (“Austin”), to access land owned by Austin (the “Austin Property”). The Austin Property appears to be Lots 5 and 6 on the Assessors Map and abuts the Subdivision Property to the west. [Note 7] The Austin Property is now owned by the family that controls Dunster. The 1948 Austin Easement granted:

The right to pass and re-pass over my land in Lambert’s Cove, in the town aforesaid, adjoining the land now or formerly owned by Nathaniel H. Emmons, through an old traveled road shown on a plan prepared by William F. Swift, surveyor, dated September 10, 1942, and on [Plan 19164A2] . . . being and intended to be a grant of right of way over my land identical with that granted by me to [the Smiths] and registered in the Land Court, Certificate No. 19164, which said right of way shall constitute an easement running with the land owned by said James A. Austin, at a place called Paul’s Point in said town.

15. By instrument dated March 23, 1948, and recorded with the Registry at Book 214, Page 274 (the “1948 Emmons Easement”), Butler granted an easement to access the Irvine Property (defined, infra). to the Trustees under the Will of Nathaniel H. Emmons, Trustees under the Will of Eleanor B. Simmons, and Susan E. Garfield, William B. Emmons, Helen B. Emmons, Gardner Emmons, and Robert W. Emmons [Executor under will of Elizabeth P. L. Emmons] (the “Emmons Heirs”).

The right to pass and re-pass over my land in Lambert’s Cove, in the town aforesaid, adjoining the land now owned by them as heirs of Nathaniel H. Emmons, deceased, through an old traveled road shown on a plan prepared by William F. Swift, surveyor, dated September 10, 1942, and on [Plan 19164A2] . . . being and intended to be a grant of right of way over my land identical with that granted by me to [the Smiths] and registered in the Land Court, Certificate No. 19164, which said right of way shall constitute an easement running with the land owned by said heirs, at a place called Paul’s Point in said town. [Note 8]

16. The Emmons Heirs are predecessors in title to Ralstone R. Irvine and Mamie M. Irvine (the “Irvines”) and Harrowby. The Subdivision Property (referred to also as the Irvine Property, infra) was never owned by Butler. Pursuant to the Narrative Chain of Title in the Irvine Registration case, the Subdivision Property was initially owned by Daniel Luce in 1889, at which time it was then conveyed to Nathaniel H. Emmons. Nathaniel H. Emmons took additional property in a “Division” in 1914. The Subdivision Property was eventually inherited by the Emmons Heirs. By deeds dated October 15, 1948, and recorded with the Registry at Book 215, Pages 221-225, Ralston R. Irvine and Mamie M. Irvine (the “Irvines”) purchased land located at Paul’s Point (Lambert’s Cove) (the “Irvine Property”) from the Emmons Heirs. The Irvine Property is the same land as the Subdivision Property, shown on the 1993 Subdivision Plan and the Modified Subdivision Plan.

17. By document dated July 19, 1952 and recorded with the Registry at Book 222, Page 438 (the “Relocation Agreement”), between Butler and a number of individuals including the Irvines, the parties agreed to relocate a portion of the Road. The Relocation Agreement moved the Road several feet to the north of where it had currently existed on Lot 15 on the Assessors Map. The Relocation Agreement stated that the Irvines (and others) “have an easement or right of way over land of [Butler] extending from their several properties in West Tisbury, Massachusetts to the Lambert’s Cove Road sometimes known as the Main Road” as referenced in the 1943 Deed. [Note 9]

18. The Irvines were issued Registration Decree 28839 dated June 13, 1963 (the “Irvine Decree”). The Irvine Property is shown on Plan 28839A dated June 18, 1958 and December 17, 1962 (the “Irvine Registration Plan”). The Irvine Registration Plan depicts the Road traversing across the Irvine Property and then over property owned by Butler, which is now owned by Graham in some capacity, i.e. Plaintiff Property. The Irvine Registration Plan labeled the Road as “Way to Main Rd. See: Plan 19164A (Sheets 1 & 2 with Cert. 1140)” (i.e. the Smith Registration Plan). In their registration petition, the Irvines claimed as appurtenant to the Irvine Property an easement in the Road over what is now Plaintiff Property. There was no objection filed by Butler or her successor in title with respect to the claimed appurtenant easement. A letter in the Irvine registration case file dated May 1, 1963, signed by Judge Joseph Cotton stated, “I will add the statement that the petitioner has waived his appurtenant rights over the way running from locus to the main road over the Butler land” (the “Cotton Letter”). The Irvine Decree did not include this language, but it also did not include express language to the effect that the Irvine Property was registered with the benefit of an easement over the Road pursuant to the 1948 Emmons Easement. [Note 10]

19. Mamie M. Irvine, Katherine Graham and Trustees for the benefit of William W. Graham were plaintiffs in a suit against Nancy Polucci-Edwards, Dukes County Superior Court No. 93-0052, who the plaintiffs in that action alleged was trespassing on the Road. [Note 11] The court made as a finding of fact, “[a]ccess to plaintiffs’ property is obtained primarily by travel over [the Road] . . . Plaintiffs and other landowners who use the dirt roads to get to their property pay annually for the upkeep, maintenance and repair the roads inevitably require.” The Order of that court dated January 15, 1997, found that “[the Road and other roads] are private roads the general public has no right to use without the owners’ permission.”

20. By deed dated December 6, 1994 (the “1994 Deed”), recorded with the Registry at Book, 125, Page 249 and also as Document No. 35636 on Certificate of Title No. 9139, the Estate of Mamie M. Irvine conveyed Locus to Harrowby.” Document No. 35636 certified that Locus was conveyed to Harrowby “[s]ubject to and with the benefit of Rights, Rights of way, Easements, restrictions and Agreements as contained in Document No. 35636 [the 1994 Deed].” The 1994 Deed stated “[t]he premises are conveyed together with the perpetual right and easement to use, together with the grantors and all others lawfully entitled thereto, the way leading from the above-described premises to Lambert’s Cove Road...described in [the 1948 Emmons Easement].” The 1994 Deed expressly mentioned the 1948 Emmons Easement.

21. Graham filed an appeal with the Appellate Tax Board (the “ATB”) challenging the taxes assessed on Plaintiff Property in 2003 and 2004. At a hearing before the ATB on June 16, 2005, Graham testified as to rights in the Road. With regard to easements over the Road, Graham stated, “[t]hey run with the land and they are for full-time access. The use has to be reasonable...but that is their legal right of way in and out, within broad limits, unlimited right to use it.” Graham admitted that there are “other people who have easements on the road to access their lots.” Graham noted that the Road travels through “Lot 7.2 [on the Assessors Map],” which corresponds to Locus; however, Graham did not expressly state that Lot 7.2 held an easement to use the Road over Plaintiff Property. [Note 12]

22. On March 21, 2000, Graham’s attorneys recorded a February 8, 2000 Notice to Prevent Acquisition of Prescriptive Easement with respect to the Road with the Registry at Book 792, Page 577, pursuant to G. L. c. 187, § 3.

Use of the Road.

23. From 1949 until 1991, members of the Irvine family used the Irvine Property every year on a seasonal basis (summer), and used the Road daily as their primary means of access to the Irvine Property. Such use included driving, biking, walking and riding horseback.

24. Harrowby purchased Locus in 1994. Paul Levey (“Levey”), a principal of Harrowby, obtained a building permit and constructed a house on Locus in 1995. In 2005, Levey conducted extensive renovations to the house pursuant to permits obtained through the Town. Such renovations were completed in 2008. Levey has continuously used the Road as sole access to Locus from 1994 to the present time.

25. The Graham family performs all maintenance of the Road and has done so for many years. In her deposition, Barbara Irvine (“Barbara”) testified that neither Graham nor his mother ever granted her family permission to use the Road. Levey attested in an Affidavit that in his entire nineteen years of ownership, “no one has ever contested our right or ability to use John Cottle Road as our legal access. Neither William Graham has never said nor suggested that our right to use the road was permissive in any sense.”

26. In 2005, Graham lined both sides of the Road with large boulders. The boulders were placed on Plaintiff Property and not directly on the Road. It is unclear where along the Road towards Locus these rocks were placed.

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Plaintiffs and Harrowby have filed several Motions to Strike. Harrowby contends that Plaintiffs do not have standing to challenge Planning Board Decision 4. Plaintiffs argue that Planning Board Decision 4 is not legally tenable because the Vote was invalid and because the Planning Board failed to address offsite impacts caused by the Modified Subdivision Road. Harrowby and the Planning Board contend that Planning Board Decision 4 is valid; however, Harrowby contends that the Planning Board exceeded its authority by imposing several conditions of approval in Planning Board Decision 4. Finally, Plaintiffs contend that Harrowby has no rights in the Road. Harrowby argues that it has easement rights (deeded, prescriptive, and by estoppel) to use the Road. Harrowby also contends that Plaintiffs are barred by the doctrines of judicial estoppel and laches from asserting that Harrowby and Dunster do not have rights in the Road. [Note 13] I shall examine each issue in turn.

I. Motions to Strike.

Harrowby has filed three Motions to Strike, one for the Affidavit of Rainen, one for the Second Affidavit of Rainen, and one for portions of the Affidavit of Lukowitz. Plaintiffs have filed a Motion to Strike portions of the Affidavit of Levey and portions of Harrowby’s Material Facts. Both parties have filed oppositions to these motions.

A. Motion to Strike Rainen Affidavit

Harrowby argues that Rainen was not qualified as an expert and cannot give a legal opinion. See Mattoon v. City of Pittsfield, 56 Mass. App. Ct. 124 (2002). Rainen is an attorney and a well respected title examiner in the Commonwealth. Rainen can cite documents in the registration and he also may draw conclusions from these documents. Both the Rainen Affidavit and the Peters Affidavit relate to the title of Locus and the surrounding parcels. There is no Motion to Strike the Peters Affidavit. This court shall utilize both the Rainen Affidavit and the Peters Affidavit as aids in this Decision. Neither Affidavit, however, will be considered conclusive in any regard.

Based on the foregoing the Motion to Strike the Rainen Affidavit is DENIED.

B. Motion to Strike the Second Rainen Affidavit

For the reasons articulated by this court relative to the Rainen Affidavit, the Motion to Strike the Second Rainen Affidavit is DENIED.

C. Motion to Strike Portions of the Lukowitz Affidavit

Harrowby seeks to strike the portions of the Lukowitz Affidavit which suggests that there is another access from Locus to a public road. Lukowitz states he has used another dirt road (Obed Daggett Road) as access to his lot (170 John Cottle Road), but he gives no facts as to the status of the road, what rights he or others have in the road, or where the road is located. The Lukowitz Affidavit is evidence that there may be alternative means of access but is not conclusive as to whether Harrowby has any right to use Obed Daggett Road. This court shall not strike the Lukowitz Affidavit, but it shall use its discretion to determine the relevancy of this Affidavit in this Decision. As a result the Motion to Strike the portions of the Lukowitz Affidavit which references an alternative access is DENIED.

D. Motion to Strike Portions of the Levey Affidavit

Plaintiffs seek to strike Paragraphs 3, 6, 10, 16, and 17 of the Levey Affidavit, which correspond to Paragraphs 39, 48, 50, 59, 60, 71, and 79 of Harrowby’s Statement of Material Facts. As grounds therefore, Plaintiffs contend that said paragraphs of the Levey Affidavit are not based on personal knowledge. This court agrees.

Paragraph 3 described the approval process for the 1993 Subdivision Plan, and it states in part, “The Planning Board...thoroughly vetted the access to the [Irvine Property] (which was always shown to be via John Cottle Road) and eventually affixed their seal of approval on the plans to divide and sell.” Levey has established no basis for his knowledge of the Planning Board’s processes for subdivision approvals. Levey did not state that he was present or participated in any vetting of the 1993 Subdivision Plan. As such, Paragraph 3 of the Levey Affidavit and corresponding Paragraph 48 of Harrowby’s Statement of Material Facts shall be stricken.

Paragraph 6 of the Levey Affidavit states, “I built our home on this property in 1995-1996 - a substantial investment - after passing all the plans through the Town approval process without any complications and obtaining a valid building permit - something that the Town does not do unless the applicant has legal access to the subject property [emphasis added].” Again, Levey has not established foundational knowledge of the Planning Board’s review process and why they approve or deny subdivisions. As such, any statement in Paragraph 6 of the Levey Affidavit and Paragraph 50 of Harrowby’s Statement of Material Facts shall be stricken as they relate to the Planning Board’s subdivision approval process and criteria.

Paragraph 10 of the Levey Affidavit states in part, “[In Graham’s] testimony before the [ATB] in 2005, he stated that [Locus] had an [easement to pass over Plaintiff Property.]” Paragraph 10 of the Levey Affidavit regarding Graham’s testimony before the ATB shall be stricken because Levey never established that he had reviewed all of Graham’s testimony before the ATB. This court shall conduct an independent review of Graham’s testimony before the ATB.

Paragraph 16 of the Levey Affidavit states that generations of certain property owners in and around Locus used the Road to access their respective properties dating back to the 1940s. Paragraph 17 of the Levey Affidavit states that the current owners of those same properties in and around Locus continue to use the Road as did their predecessors. Levey has not established any basis for his knowledge of how “generations” of former property owners used the Road. As such, any language in Paragraphs 16 and 17 of the Levey Affidavit and Paragraphs 39, 59, 60, 71, and 79 of Harrowby’s Statement of Material Facts shall be stricken, but only as they purport to be statements of fact regarding how prior owners of land in and around Locus used the Road. [Note 14]

II. Standing to Challenge Planning Board Decision 4:

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). “To qualify for that limited class, a plaintiff must establish – by direct facts and not by speculative personal opinion – that his injury is special and different from the concerns of the rest of the community.” Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005) (noting plaintiff’s injury flowing from board’s decision must be “special and different from the injury the action will cause to the community at large”).

“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. 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).

As stated in both Kenner and Rattner, supra, standing must be based on an interest that is protected by the West Tisbury zoning by-law or by the West Tisbury Rules and Regulations Governing the Subdivision of Land (the “Rules and Regs”). Chapter 1 of the Rules and Regs authorizes the Planning Board to consider the impact of a proposed subdivision on traffic and congestion on roads adjacent to a subdivision, as well as public safety considerations. More specifically, the “Purpose” section of the Rules and Regs authorizes the Planning Board to analyze the impact of a proposed subdivision, keeping in mind “lessening congestion...in the adjacent public ways; for reducing danger to life and limb in the operation of motor vehicles; for securing safety in the cases of fire, flood, panic and other emergencies.” See Rules and Regs. In another subdivision case in West Tisbury involving the Road, the Appeals Court discussed the Rules and Regs and the issue of standing and held:

Pursuant to s. 81M, the board had an obligation to consider the adequacy of roads outside the defendants' proposed subdivision in deciding whether to approve their plan. Furthermore, the provisions of the subdivision rules and regulations indicate a reasonably definite intention on the part of the board to lessen congestion and potentially dangerous conditions on roadways adjacent to a proposed subdivision. Rattner, supra, at 10.

155 John Cottle Road is the only Plaintiff Property that abuts Locus. The other Plaintiffs do not enjoy a presumption of standing as defined by G.L. c. 41 § 81T and G.L. c. 40A, § 11. [Note 15] For these other properties, the burden is on Plaintiffs to assert their alleged harms. If they cannot, Harrowby need only show that Plaintiffs have no reasonable expectation of proving a legally cognizable injury. See Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 35 (2006), citing Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). To rebut Plaintiffs’ (at least the owners of 155 John Cottle Road’s presumed standing) Harrowby contends that none of Plaintiffs will be harmed because the Modified Subdivision Plan does not create any additional buildable lots and that, once completed, the Road and its traffic will remain status quo. In this regard, Harrowby contends that Plaintiffs’ concerns are “de minimis” and cannot be a basis of standing. Harrowby’s contention regarding traffic remaining status quo is sufficient for the purposes of rebutting standing; however, this court must make a determination of all Plaintiffs’ standing based on the law and all of the evidence.

Plaintiffs’ claim of aggrievement primarily relates to the use of the Road during construction of the Modified Subdivision Road. In fact, it seems that Plaintiffs’ general issue relating to the Road is the influx of construction vehicles on the Road to service the homes not only of Harrowby and Dunster, but the homes of other neighbors who may have a deeded and/or registered right to use the Road. Plaintiffs also claim, though, that the use of the Road during construction will have permanent effects on the Road and that there will in fact be increased traffic along the Road as a result of the Modified Subdivision Road.

In Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011), the Appeals Court stated:

[D]ue to the right of way over the Gale property, the Foote’s plan to construct a year-round residence would have a particularized impact on the use of that right of way in the future, especially during the construction phase of the new residence. Id. at 335.

Accordingly, the Appeals Court affirmed the Land Court’s holding that the plaintiff had standing to challenge a variance and special permit based on the construction and permanent impact on a right of way over the plaintiff’s property used by defendant. In Gale, the defendant proposed to raze an existing home and to construct a new home on the same lot. Similar to the case at bar, the project in Gale did not propose any additional living structures that would dramatically alter the use of the right of way.

Harrowby attempts to distinguish Gale by arguing that the impact over a private right of way may be a basis for standing in the context of a variance or special permit; however such impact cannot confer standing in the subdivision context. This court disagrees. As noted, supra, the Rules and Regs explicitly authorize the Planning Board to evaluate the traffic and safety impact on roads outside of the subdivision. [Note 16] Offsite road impacts are clearly an interest that is protected by the Rules and Regs and can be a basis for standing.

As set forth in the Affidavit of Richard S. Bryant (“Bryant”), a licensed traffic engineer, Plaintiffs’ major claims of aggrievement are caused by the construction of the Modified Subdivision Road. Bryant attested that the construction of the Modified Subdivision Road would cause an additional twenty-two trips per day over a period of twenty-six days based on a best case scenario. He further attested that many “of the trips will involve large commercial vehicles including rack trucks, excavators, chippers, bulldozers, graders, rollers, loaders, and backhoes...” Bryant’s Affidavit was contested by Silva’s Affidavit, in which Silva attested that the build-out of the Modified Subdivision Road will only take five days and will result in a total of fifty-two trips over the Road. Silva recognized that many, if not all, of the additional trips over the Road will be completed by commercial vehicles and large trucks. Even if Silva is correct, although the extent of construction traffic is certainly in dispute, Silva’s estimate is considered by this court to surpass the “de minimis” threshold set forth in Kenner, supra, at 124. Moreover, the increase in commercial vehicles along the Road during construction will also exacerbate safety concerns along the Road. Bryant, Graham, and others testified in depositions and in subpoenas that commercial vehicles that are unfamiliar with the road tend to drive faster than residents, which causes serious safety concerns for pedestrians and bikers along the road. [Note 17]

With respect to permanent implications, Bryant attested that there will be at least two additional trips each year to inspect the retaining wall that will be built as part of the Modified Subdivision Road. Bryant further attested that the landscape plantings that will replace a portion of the Road as it currently exist will require landscaping resulting in approximately sixty additional trips over the Road annually. Finally, Bryant attested that the increased commercial vehicle traffic during construction will cause permanent soil erosion, air and dust emissions, and damage to vegetation. Silva did not give any opinion as to the permanent implications and increased trips over the Road that will directly result from the Modified Subdivision Road.

Based on the foregoing, I find that Plaintiffs have standing to challenge Planning Board Decision 4 based on increased traffic and safety issues on the Road that will be caused by the construction and permanent impact of the Modified Subdivision Road. [Note 18]

III. Plaintiffs’ Challenges to Planning Board Decision 4:

A. Validity of Vote:

Plaintiffs claim that the Vote approving the Modified Subdivision Plan (with conditions) must be annulled because two Planning Board members voted on the Modified Subdivision Plan even though those two members were not present at the public hearings held in May and June of 2009. According to Harrowby and the Planning Board, the Vote was valid notwithstanding the fact that two member of the Planning Board voted even though they missed earlier hearings relative to the Modified Subdivision Plan. Harrowby and the Planning Board admit that Planning Board member Powell participated in the Vote, even though he had missed the May 18, 2009 public hearing and recused himself from the June 22, 2009 public hearing. Harrowby and the Planning Board also admit that Planning Board Associate member Phear participated in the 2011 Vote even though she did not attend any public hearings in 2009.

This matter comes before the court after two separate remands to the Planning Board. In the 2009 Remand Order, this court stated,“the board shall not conduct a new public hearing, the original public hearing having been closed on June 22, 2009, and shall not accept or consider any new evidence with respect to the proposed modification.” In accordance with the 2009 Remand Order, no further public hearings were held by the Planning Board on the Modified Subdivision Plan. After the 2009 Remand Order, the Planning Board issued Planning Board Decision 3, which was appealed to this court by Harrowby. In Land Court Decision 1, this court held that certain aspects of Planning Board Decision 3 were arbitrary and capricious and remanded the matter to the Planning Board again (pursuant to the 2011 Remand Order). Although Land Court Decision 1 and the Judgment contained no language barring any further public hearing, such was implied based on the reasoning in Land Court Decision 1 as well as the 2009 Remand Order stating the same. No new evidence needed to be taken as a result of Land Court Decision 1. In the 2009 Remand Order, this court ordered the Planning Board to review the administrative record that had already been built and supplement any findings with justifications for their denial of the Modified Subdivision Plan. In the 2011 Remand Order, this court found that there were feasible remedies to address each concern expressed in Planning Board Decision 3 and this court ordered the Planning Board to issue a new decision in accordance with Land Court Decision 1. The initial public hearings were held on May 18, 2009 and June 22, 2009, almost two full years before Land Court Decision 1 was issued by this court. It is certainly foreseeable that there would be turnover of Planning Board members in those intervening two years. Both the 2009 Remand Order and the 2011 Remand Order either explicitly or implicitly prohibited any further public hearing on the matter, notwithstanding any turnover. In remand proceedings, the judge sets the terms of the remand. Nasca v. Bd. of Appeals of Medway, 27 Mass. App. Ct. 47 , 49 (1989).

As a general principle of law, the SJC has held that “action by a planning board to approve a definitive subdivision plan requires the affirmative vote of a majority of the members of the board.” McElderry v. Planning Bd. of Nantucket, 431 Mass. 722 , 727 (2000). However, Plaintiffs rely on Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 (2009) and Mullin v. Planning Bd. of Brewster, 17 Mass. App. Ct. 139 (1983), both of which cases held that a planning board’s approval of a subdivision plan was invalid because board members who voted on the plan were not present at all hearings. “All members of the board who are to join in the decision...must have attended the hearing.” Krafchuk, supra, at 532-533. [Note 19]

It is undisputed that Powell and Phear were not present at two hearings relative to the Modified Subdivision Plan in 2009. Even if the votes of these two members were not counted, the 5-0 Vote (now reduced to 3-0) was still an affirmative vote of a majority of the members of the Planning Board. Therefore, based on McElderry, supra, it would seem at first blush that the Vote was valid. In Krafchuk, supra, the SJC stated, “the record is clear that several board members who voted on the December, 2003, approval decision missed sessions at which the amended plan was considered.” Krafchuk, supra, at 533. In Krafchuk, the planning board held several hearing on an applicant’s subdivision plan and “several members” out of a five members board did not attend all hearings. The use of the word several indicates that at least two members of that planning board missed at least one public hearing on the application. The five member board in that case voted 4-0 to approve the subdivision plan, even though several members missed at least one hearing. The applicant in Krafchuk needed an affirmative vote of three members of the planning board who were present at all hearings. It appears that because several members missed at least one public hearing, it would have been impossible to have an affirmative vote of three planning board members who were present at all hearings. There could only be an affirmative vote of no more than two members who attended all hearings.

In Mullins, supra, an affirmative vote of at least two thirds of the members of a board (five members out of a seven member board) was required for the issuance of a special permit. Two members missed a public hearing relative to the application at issue and abstained from a vote. Four members of the board voted affirmatively to grant the permit. [Note 20] After an appeal was taken by abutters, the matter was remanded to the planning board, and the two members who previously did not vote participated at the remand vote, which resulted in a 6-0 affirmative vote in favor of the application. Upon another appeal by abutters, the Appeals Court concluded that the issuance of a special permit is quasi-judicial in nature, thus the applicant needed an affirmative vote of at least two thirds of its members, i.e. five members. See Mullins, supra, at 143. The Appeal Court also held that the two members who were not present at the public hearing were not qualified to vote, thereby reducing the affirmative remand vote to 4-0. The Appeals Court did not address the issue of whether the vote and participation by the two members who did not attend the public hearings “tainted” the entire vote of all other members of the board. Those members who did not attend the public hearing were simply disqualified from voting, and the Appeals Court treated the other four votes as valid and legitimate, but an insufficient number of votes for the issuance of a special permit. As such, it would appear that the mere participation in a vote by members that did not attend a public hearing does not taint the vote of those who attended the hearing. The former voters were simply disqualified.

Unlike in Krafchuk and Mullins, Harrowby received three affirmative votes from three members of the Planning Board who attended all public hearings relative to the Modified Subdivision Plan. There is no evidence that the deliberations of Powell and Phear lead to any injustice or tainted the Vote in any way. The fact is, not counting the votes of Powell and Phear, Harrowby received an affirmative vote of a majority of the members of the Planning Board who were present at all public hearings relative to the Modified Subdivision Plan. This is all that is required for a valid vote. See McElderry, supra, at 726.

Based on the foregoing, I find that the Vote was valid. [Note 21]

B. Failure to Consider Off-Site Impacts:

Graham next contends that Planning Board Decision 4 must be annulled because the Planning Board failed to consider off-site impacts caused by the Modified Subdivision Road. More specifically, Graham contends that the increased use of the Road caused by the Modified Subdivision Plan will have a detrimental physical impact on the Road. Graham states that none of the twelve conditions in Planning Board Decision 4 address issues relating to the safety and physical condition of the Road, and as a result, Planning Board Decision 4 must be annulled. As discussed in detail, supra (relative to standing), Planning Board Decision 4 will not have a significant impact on the use of the Road over Plaintiff Property. Although the impact on the Road may be sufficient to confer standing, this does not constitute a valid reason for overturning Planning Board Decision 4.

Dwellings and structures are already in existence on all buildable lots within the Subdivision Property, and the Modified Subdivision Plan proposes no new residences. There will not be any increase in use of the Road by the residents of the Subdivision Property. Even considering the expert testimony of Bryant regarding use and impact on the Road primarily during construction, it seems that other than some potential increased traffic for landscaping and maintenance, the Modified Subdivision Plan will result in a minimal effect and physical impact on the Road. Moreover, Finding 1 of Planning Board Decision 4 discusses access to the Subdivision Property via the Road (noting that the Road is only ten feet wide) and via Lambert’s Cove Road. The Planning Board was certainly aware that construction vehicles would have to traverse Plaintiff Property to access the Subdivision Property in order to construct the Modified Subdivision Road. Indeed, Condition 9 limits the timing and certain activities relating to construction of the Modified Subdivision Road. Graham’s major contention with the Modified Subdivision Plan arises out of use of the Road during construction. Although the construction of the Modified Subdivision Road may be a temporary inconvenience to Graham, such inconvenience is insufficient to overturn Planning Board Decision 4. Condition 9 attempts to mitigate any such inconvenience and concerns. Contrary to Graham’s position, it appears that the Planning Board considered offsite impacts and use of the Road when deliberating Planning Board Decision 4.

Based on the foregoing, I find that Planning Board Decision 4 is not invalid on grounds that the Planning Board failed to consider the impact of the Modified Subdivision Plan on the Road. [Note 22]

IV. Harrowby’s Challenges to Planning Board Decision 4:

Harrowby challenges four conditions imposed by Planning Board Decision 4, alleging that such conditions are arbitrary and capricious and conflict with Land Court Decision 1. The Planning Board defends the challenged conditions, arguing that they were imposed within the Planning Board’s legal discretion.

“In reviewing appeals brought pursuant to G.L.c. 41, § 81BB, the trial judge hears the matters de novo, making independent findings of fact and, on the facts so found, determines whether the plan submitted to the planning board conforms to the reasonable rules and regulations of the board.” Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478-479 (1955); Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104 , 106 (1991). The court’s de novo review is limited to determining whether the planning board's decision exceeded its authority. Batchelder, supra, at 106. “While the trial judge may not substitute his or her own judgment for that of the planning board, see, Strand v. Planning Bd. Of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977), the Board’s decision will not be sustained where it has acted outside of its authority under the subdivision control law.” Kilpatrick v. Planning Bd. for Boylston, 16 Mass. L. Rep. 436 (2003). A certain amount of deference should be given to Planning Board Decision 4. If reasonable minds might in good faith differ, the conclusion reached by a planning board should be sustained and the role of the courts is merely to ascertain whether the board exceeded its authority. See Arrigo v. Planning Board of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977); Douglas v. City of Malden Planning Board, 17 LCR 132 (2009). I shall address each challenged condition in turn.

A. Condition 1:

Condition 1 states:

The existing subdivision road, as shown on the original definitive subdivision plan and as it exists on the ground, shall be abandoned and removed and replaced with plantings of indigenous trees and shrubs. Access to the existing subdivision road from the new subdivision road shall be blocked with plantings of indigenous trees and shrubs. This condition shall not apply to any portion of the existing subdivision road that is located within the driveway that will provide access to the buildings on [Locus] from the new subdivision road.

Condition 1 requires Harrowby to abandon the portion of the Subdivision Road that traverses Locus and to replace it with plantings and shrubs. Condition 1 further requires Harrowby to block all access to the Subdivision Road onto Locus. Harrowby intends to utilize a portion of the Subdivision Road as it currently exists on the ground as a driveway to access Locus so that all Locus/Harrowby related traffic will not travel along the Modified Subdivision Road. Condition 1 is untenable to Harrowby because it prohibits use of any portion of the Subdivision Road as a driveway to Locus. Therefore, according to Harrowby, Condition 1 is tantamount to a denial of the Modified Subdivision Plan.

In Land Court Decision 1, this court stated in Footnote 13:

If the Planning Board is truly concerned, and articulates its concern with a particular reason, that the safety of the current and future residents of West Tisbury will be endangered by the existence of both the Modified Subdivision Road and the Subdivision Road, the Planning Board is free to impose a condition of approval...to remove or block access to the Subdivision Road.

Finding 3 in Planning Board Decision 4 provides the Planning Board’s justification for Condition 1. Finding 3 recognizes that Harrowby intends to use the Subdivision Road as a driveway for Locus and then it states:

...Allowing a dead-end street in excess of 500 feet in length in addition to most of the existing subdivision road does not give adequate protection to the safety and convenience of the present and future inhabitants of the Town or of prospective purchasers of land within the subdivision in that it would allow two long narrow access ways, in close proximity to each other, within the same subdivision, without adequate turnaround and turnouts on both ways and will be confusing to persons traveling on the ways.

Based on this finding, it appears that the Planning Board took Footnote 13 literally and articulated safety concerns relating to the existence of both the Subdivision Road (as a driveway) and the Modified Subdivision Road. After reviewing many plans and chalks submitted by the parties, this court must defer to the discretion of the Planning Board with respect to Condition 1. The Subdivision Road crosses through Locus for several hundred feet before it intersects with the current driveway to Locus. The driveway to Locus and the parking area on Locus are very close to the boundary between Locus and Lot 3 as shown on the Modified Subdivision Plan. The Modified Subdivision Plan proposes that the Subdivision Road, as it currently exists, will serve as the driveway to Locus. It seems almost certain that the parking area on Locus will remain in the same location and, essentially, Harrowby will utilize the Subdivision Road in the exact same manner as it is currently used. The Modified Subdivision Road will also traverse Locus, essentially parallel to the Subdivision Road for nearly the entire width of Locus. As the Planning Board points out, there will be two long and narrow ways (the Subdivision Road and the Modified Subdivision Road) that travel through Locus for several hundred feet.

The Planning Board has the authority to regulate the layout and construction of ways in subdivisions. See G.L. c. 41, § 81M. In the Planning Board’s discretion, it determined that the layout of two long and narrow ways within a subdivision will be unsafe and confusing. This court is cognizant that the only parties who will use the Modified Subdivision Road and the Subdivision Road/driveway to Locus will be Harrowby and Dunster, who are parties to the case. [Note 23] That would seemingly mitigate any confusion; however, emergency access vehicles will also be required, at some point, to travel down either the Modified Subdivision Road and the Subdivision Road. The parallel ways may certainly be confusing to emergency responders, particularly when both means of access will essentially begin at the same point along the Road. Moreover, there does not appear to be any provision or Condition requiring an adequate turnaround at the end of the existing Subdivision Road that will be used as a driveway to Locus. The lack of such condition will clearly make it difficult for emergency vehicles to access and maneuver the Subdivision Road for access and egress to Lot 4. Contrary to Harrowby’s contention, Condition 1 will not obviate the entire purpose of the Subdivision. It is true that Harrowby will still be required to travel further along the Modified Subdivision Road; however, the Modified Subdivision Road will be very close to the boundary of Locus resulting in additional open or usable space on Locus. This court shall not substitute its own judgment for that of the Planning Board regarding Condition 1. [Note 24]

Based on the foregoing, I find that Condition 1 is a valid condition.

B. Condition 2:

Condition 2 states:

The driveway that will provide access to the buildings on [Locus] from the new subdivision road shall be laid out and constructed so that it is a.) intersects or connects to the new subdivision road at as near a right angle as possible; and b.) is located as close as possible to the common lot line between Lot 3 and Lot 4 from the new subdivision road to the point where the existing driveway for Lot 4 intersects with the existing subdivision road.

Similar to Condition 1, Harrowby contends that Condition 2 will obviate the purpose of the Modified Subdivision Plan. Condition 2 requires that the driveway to Locus be as close as possible to the boundary line between Lot 3 and Locus. This is consistent with where the driveway to Locus appears to currently exist, based on several exhibits and chalks submitted to this court. For many of the reasons stated, supra, regarding Condition 1, the Planning Board is within its authority to require that all access to the Subdivision Road be blocked upon completion of the Modified Subdivision Road.

The ninety degree angle requirement, as Harrowby acknowledges, is certainly rationally related to safety concerns. Section 5.1-1 of the Rules and Regs requires, inter alia, “[s]treets shall be laid out so as to intersect as nearly as possible at right angles.” Harrowby’s engineer, Silva, attested that the driveway to Lot 4 will connect with the Modified Subdivision Road at a right angle. In this regard, any concern relating to safety caused by sharp turning angles has been considered by Harrowby and implemented as part of the Modified Subdivision Plan. The ninety degree angle is therefore not a dispute between the parties.

For the foregoing reasons, and as stated, supra, regarding Condition 1, I find that Condition 2 is a valid condition. [Note 25]

C. Condition 4:

Condition 4 states:

At the end of the proposed relocated road, a turnaround or cul-de-sac having an outside roadway diameter of at least 150 feet and a property line diameter of at least 115 feet shall be provided as required by the second Paragraph of Section 5.1-4 of the [Rules and Regs]. The turnaround or cul-de-sac shall be subject to review and approval by the fire chief and road inspector.

Finding 3 states:

A turnaround or cul-de-sac is not provided at the end of the proposed relocated road. The lack of such a turnaround at the end of the proposed relocated road will make it difficult or impossible for fire apparatus and other large public safety vehicles to maneuver or turnaround and will not give adequate protection to the safety and convenience of the present and future inhabitants of the Town or of prospective purchasers of land within the subdivision.

Section 5.1-4 of the Rules and Regs states, “Dead-end streets shall be provided at the closed end with a turnaround having a diameter of at least one hundred feet and a property line diameter of at least one hundred and fifteen feet.” This court specifically held in Land Court Decision 1 that “the Planning Board acted arbitrarily in denying the Modified Subdivision Plan on account of the Modified Subdivision Road not conforming with Rule 5.1-4.” Footnote 18 of Land Court Decision 1 stated:

The Planning Board is not without a remedy in this instance either. If the Planning Board is truly concerned, and articulates its concern with a particular reason, that the safety of the current and future residents of West Tisbury will be endangered by the hammerhead shape of the Modified Subdivision Road, the Planning Board may impose a condition in Planning Board Decision 3 mandating that the closed end of the Modified Subdivision Road have a turnaround with an outside diameter of at least one hundred feet and a property line diameter of at least one hundred and fifteen feet, i.e. strict compliance with Rule 5.1-4.

Harrowby contends that there is no basis for the Planning Board’s conclusion that it will be difficult or impossible for emergency vehicles to safely turnaround on the proposed hammerhead terminus. Harrowby further contends that the terminus of the Modified Subdivision Road is exactly the same as approved by Planning Board Decision 1 relative to the 1993 Subdivision Plan. The Planning Board states that the granting of a waiver in the past does not require a planning board to grant the waiver of the requirement prospectively. See Lakeside Builders, Inc. v. Planning Bd. of Franklin, 56 Mass. App. Ct. 842 (2002).

The Planning Board did exactly what was proposed by this court. Condition 4 requires that the Modified Subdivision Road have a cul-de-sac terminus rather than a hammerhead. The reason therefore, according to the Planning Board, is that emergency vehicles cannot maneuver within the hammerhead terminus of the Modified Subdivision Road without stopping, backing up and changing directions. The Planning Board states that such maneuvering is unsafe as a matter of “common sense.” It is true that the fire chief never weighed in through the public hearing process to request a cul-de-sac rather than a hammerhead terminus. This fact, however, does not prove that a condition requiring compliance with the Rules and Regs regarding the shape of the Modified Subdivision Road is arbitrary and unreasonable. Moreover, the fact that a completely different board approved a hammerhead terminus in 1993 does not bind the new members of the Planning Board to grant the same waiver of the Rules and Regs. The Smith Affidavit states that there has never been any issue with public safety vehicles maneuvering the current hammerhead terminus of the Subdivision Road. This Affidavit, no doubt self-serving for Harrowby, does not convince this court that there will not be any future issues with public safety vehicles maneuvering the Modified Subdivision Road.

In the context of subdivision approvals, a planning board is afforded discretion to impose certain conditions of approval. This is especially true in the case at bar because the Modified Subdivision Plan does not comply with Section 5.1-4 of the Rules and Regs. This court cannot conclude that Condition 4 is unreasonable or arbitrary. Condition 4 was imposed to ensure the safety of the respective owners of the Subdivision Property.

One final issue must be addressed even though it was not raised by Harrowby. Section 5.1-4 of the Rules and Regs requires an outside roadway diameter of “at least one hundred feet” and a property line diameter of “at least one hundred and fifteen feet.” Condition 4, however, requires an outside roadway diameter of “at least 150 feet” and a property line diameter of “at least 115 feet...as required by the second Paragraph of Section 5.1-4 of the [Rules and Regs].” There is no explanation for this inconsistency with respect to the outside roadway diameter. This court assumes that the inconsistency is merely a mistake. If the Planning Board intended to impose a Condition requiring a one hundred and fifty foot outside diameter then the parties may need to address this issue via Motion. [Note 26]

Based on the foregoing, I find that Condition 4 is valid and shall not be stricken from Planning Board Decision 4, provided that Condition 4 is addressed consistent with the preceding paragraph.

D. Condition 8:

Condition 8 states: “[n]o RoundUp or Glyphosate is to be used or applied anywhere on the land comprising the subdivision roadway relocation project.” Harrowby contends that Condition 8 is ultra vires because there is nothing in the Rules and Regs granting the Planning Board authority to prohibit the use of particular toxic chemicals. The Planning Board points to Section 5.4 of the Rules and Regs, Protection of Natural Features, which states, “[d]ue regard shall be shown for all natural features, such as...existing vegetation.” The Planning Board has discretion to interpret its owns Rules and Regs. 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.”). Section 5.4 of the Rules and Regs therefore does provide the Planning Board with the authority to regulate certain manners of clearing vegetation to construct a subdivision road and/or driveway to a subdivision lot. Harrowby recognizes and states that it has no interest in utilizing toxic chemicals within Locus because doing so would jeopardize its water supply. Therefore, it seems that there is no actual controversy, especially if Harrowby is admitting that it does not intend to use such toxic chemicals.

Based on the foregoing, I find that the Planning Board had the authority to impose Condition 8 to ensure “due regard” for existing vegetation.

V. Rights in the Road [Note 27]

A. Deeded rights

Count II of Plaintiffs’ Complaint, pursuant to G.L. c. 231A, seeks a declaration that Harrowby has no rights in the Road as it crosses Plaintiff Property. In its Counterclaim to Count II, Harrowby contends that it has a deeded easement right to use the Road pursuant to the 1948 Emmons Easement granted to the Emmons Heirs (predecessors to the Irvines and Harrowby). [Note 28] Plaintiffs argue that the Irvines waived any easement rights they may have had over the Road when the Irvine Decree failed to expressly include a right of way from the Irvine Property over Plaintiff Property. Plaintiffs do not dispute that the 1948 Emmons Easement created rights in the Road over Plaintiff Property for the benefit of the Subdivision Property (a/k/a the Irvine Property). The 1948 Emmons Easement stated that it was a conveyance of the same rights in the Road (to access the Irvine Property) that Butler had granted to the Smiths, which was depicted on the Smith Registration Plan. Indeed, the 1948 Emmons Easement included the right to use the Road from the Irvine Property, over land owned by Butler, out to Lambert’s Cove Road.

Plaintiffs argue that the 1948 Emmons Easement did not appear in the Irvine Decree, and as a result, the Irvines waived their easement rights in the Road. Plaintiffs rely on the Cotton Letter included in the Irvines’ registration case file which stated, “I will add the statement that the petitioner has waived his appurtenant rights over the way running from locus to the main road over the Butler land.” Plaintiffs contend that the Cotton Letter confirms that the Irvines waived any rights in the Road. The Cotton Letter and the language contained therein, however, is not part of the Irvine Decree. While it is true that the Irvine Decree does not include a registered easement to use the Road over Plaintiff Property, the Irvine Registration Plan depicts a way shown as “Way to MAIN RD. See Plan 19164A (Sheets 1 & 2 with Cert. 1140).” Plan 19164A is the Smith Registration Plan, and the Smith Registration Decree included the Registered Smith Easement over Plaintiff Property. The 1948 Emmons Easement granted to the Irvines is based upon the Registered Smith Easement appurtenant to the Smith Property.

A provision in the land registration statute, G. L. c. 185, § 46, states in relevant part:

Every plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate, and any of the following encumbrances which may be existing...if there are easements or other rights appurtenant to a parcel of registered land which for any reason have failed to be registered, such easements or rights shall remain so appurtenant notwithstanding such failure, and shall be held to pass with the land until cut off or extinguished by the registration of the servient estate, or in any other manner.

Curiously, Plaintiffs argue that Dubinsky v. Cama, 261 Mass. 47 , 56 (1927) supports their position that the Irvines affirmatively waived their rights in the Road. That case, however, confirms Harrowby’s position relative to claimed appurtenant easement rights that do not appear on the dominant estate’s certificate of title or registration decree:

It has long been the law touching deeds that if the owner grants an estate to which a right of way over land of a third person is appurtenant, that right of way passes as an incident although no mention is made of it and although the grant is not expressed to be with the easement or appurtenance. Kent v. Waite, 10 Pick. 138 , 141. Atkins v. Bordman, 2 Met. 457 , 464. Oliver v. Dickinson, 100 Mass. 114 , 117. Whatever easement of travel, therefore, was appurtenant to the defendants' land under the registration records shown in its chain of title under G. L. c. 185, passed to them under their certificate of title although no reference, thereto is made in their certificate of title. The requirement of G. L. c. 185, s. 47, as to the contents of the decree of the Land Court and of the several sections concerning the certificate of title, contains no reference to easements appurtenant to the land. It is only easements to which the registered land is subject which must be set out in the decree and certificate of title. However desirable it may be that the decree and the certificate of title should disclose the whole state of the title, including all easements appurtenant, that does not appear to be the mandate of the Legislature as shown in G. L. c. 185. Id.

The fact that the Irvine Decree does not expressly list any easement rights in the Road is far from fatal to the existence of such rights. Judge Cotton, notwithstanding his threat to do so, did not include language in the Irvine Decree explicitly stating that the Irvines waived their rights in the Road. As clearly codified in G.L. c. 185, § 46, any unregistered easement rights appurtenant to a registered parcel remain appurtenant until they are cut off by a registration of the servient estate (i.e. Plaintiff Property) or in any other manner (e.g. abandonment or waiver or such rights).

The Irvines and Harrowby did not abandon their right to use the Road. Both the Irvines and principals of Harrowby attested to their continuous, seasonal use of the Road for decades. Plaintiffs’ sole contention is that the Irvines waived any rights they had in the Road by failing to register such rights. This theory is in direct conflict with G.L. c. 185, § 46, which is interpreted by this court to mean that a failure to include appurtenant rights in a registration decree is not a waiver of such rights. Judge Cotton did not rule that the Irvines waived their rights in the Road. Were he to so hold, it is almost certain he would have carried through with his threat and included a statement in the Irvine Decree to the effect that any easement rights in the Road were waived. No such statement was included in the Irvine Decree.

As a result of the foregoing, I find that Harrowby has rights in the Road consistent with both the 1948 Emmons Easement granted by Butler to the Irvines and the Relocation Agreement.

B. Prescriptive Rights:

Harrowby cannot have both deeded easement rights in the Road and an easement by prescription. A deeded right in the Road amounts to permission to travel over Plaintiff Property. One element of a prescriptive easement is that the use of the claimed easement must be adverse or under a claim of right and not with permission. Although this court found to the contrary, if an appeal determined that the Irvines waived their deeded rights in the Road (granted by the 1948 Emmons Easement and the Relocation Agreement), then Harrowby can attempt to establish prescriptive rights in the Road beginning as of the date of the Irvine Decree when such waiver could have been adjudicated.

Acquisition by prescription of a right of way over land of another requires use or enjoyment “continued uninterruptedly for twenty years.” G. L. c. 187, § 2. “[W]herever there has been the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.” Truc v. Field, 269 Mass. 524 , 52829 (1930); Tucker v. Poch, 321 Mass. 321 , 324 (1947). As with adverse possession, the use must be open, notorious, continuous, and adverse. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Boston Seaman’s Friend Soc. v. Rifkin Mgmt., Inc., 19 Mass. App. Ct. 248 , 251 (1985); Stone v. Perkins, 59 Mass. App. Ct. 265 , 266 (2003). Whether the elements of a claim for a prescriptive easement have been satisfied is essentially a factual question for the trial judge. See Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961).

I. Permissive Use:

The major point of disagreement regarding prescriptive rights in the Road is whether the use of the Road by the Irvines and Harrowby was permissive. An owner’s express or implied permission for claimants’ use of his property defeats claims of adverse possession. See Spencer v. Rabidou, 340 Mass. 91 , 93 (1959). “Implied acquiescence is not necessarily the same as permission.” Houghton v. Johnson, 71 Mass. App. Ct. 825 , 836 (2008) (internal citations omitted). An owner’s acquiescence in a claimant’s clearly adverse act does not negate adversity. See id. “Adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto.” Id. “Wherever there has been the use of an easement for twenty years unexplained, it will be presumed to be under a claim of right and adverse, and will be sufficient to establish title by prescription...unless controlled or explained.” Flynn v. Korsach, 343 Mass. 15 , 18 (1961).

It is abundantly clear, and Graham even admits, that he and/or his mother never gave express permission to the Irvines or to Levey and his family to use the Road to access Locus. Graham contends that permission to use the Road was implied based on his dominion and control over the Road, especially as it relates to maintenance. It is not contested that Graham now performs all maintenance over the Road as it crosses Plaintiff Property. The fact that Graham maintains the Road, in which he holds a fee interest, has no bearing on whether the Irvines and Harrowby were granted permission to use the Road. As stated, supra, implied permission may defeat prescriptive rights; however, silent acquiescence by the fee owner will not. In the case at bar, it is quite obvious that for many, many years Graham and his family sat idly by and acquiesced in the use of the Road over Plaintiff Property by the Irvines and Harrowby. It is undisputed that, until this lawsuit was filed, Graham never voiced any objection to the use of the Road by the Irvines and Harrowby.

The use of the Road by the Irvines and Harrowby was certainly pursuant to a claim of right in the Road. Barbara, though not expounding in detail, testified that no member of the Graham family ever told any member of the Irvine family that they could not use the Road or that they could use the Road only with permission. It seems that the Irvines relied on the 1948 Emmons Easement as a basis for their right to use the Road. Levey and his family used the Road pursuant to a claim of right, too. Levey attested that the Road is the sole legal access to Lambert’s Cove Road and is his only means of access and egress to and from Locus. Levey also attested that he was informed by his attorneys that he had an appurtenant right of access to Locus via the Road over Plaintiff Property. The Irvines and Harrowby were no doubt using the Road under a claim of right, beginning in 1948.

Based on the foregoing, I find that the use of the Road by the Irvines and Harrowby has been adverse and was not permissive.

ii. Open and Notorious Use:

Barbara testified that she and her family, beginning in 1949, would walk, sometimes bike, ride horses, and drive cars down the Road. Clearly the Irvines never intended to hide their use of the Road. Such activities were done in daylight and it is almost certain that members of the Graham family knew of the Irvines’ use of the Road. Similarly, Harrowby has used the road for walking and driving in broad daylight. Levey attested that he has had conversations with Graham and that Graham knew of his use of the Road, beginning when Harrowby purchased the property from the Irvines in 1994.

Based on the foregoing, I find that Harrowby and its predecessors used the Road openly and notoriously.

iii. Continuous Use For Twenty Years:

The use does not have to be constant over the twenty year period to be considered continuous and an intermission in the use does not equal interruption, Bodfish v. Bodfish, 105 Mass. 317 , 319 (1870); however, acts of possession that are “few, intermittent and equivocal” are insufficient to serve as a basis for adverse possession. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992). Continuous use can be established through circumstantial evidence; direct evidence of actual use in each of the twenty years is not required. Id. at 319320. Seasonal use does not defeat a claim for prescriptive easement rights. See Kershaw v. Zecchini, 342 Mass. 318 , 321 (1961). The Irvine family began using the Road each and every day, on a seasonal basis, beginning in 1949. As discussed, supra, they used the Road for general transportation purposes via car, bike, and horse. Levey attested that since he purchased the property from the Irvines in 1994, he used the Road for transportation purposes, on a daily (yet seasonal) basis. Assuming that any right to use the Road was waived pursuant to the Irvine Decree, the running of the statute for prescriptive use began on June 13, 1963, when the Irvine Decree was issued. Barbara Irvine’s testimony alone established the Irvines’ prescriptive rights in the Road, and the Irvines and Harrowby have certainly done nothing to abandon those rights.

Based on the foregoing, I find that the Irvines’ and Harrowby’s use of the Road has been continuous for more than twenty years beginning in 1963. [Note 29]

Based on the foregoing, and only if Harrowby’s predecessors had waived their deeded rights in the Road in 1963, I find that Harrowby has a prescriptive easement in the Road. [Note 30]

C. Laches:

Harrowby argues that Plaintiffs should be precluded from claiming that Harrowby does not have rights in the Road because Harrowby and the Irvines used the Road on a regular basis and Graham and his predecessors knew of such use but never initiated any action to prevent the owners of Locus from using the Road. Laches is an unjustified, unreasonable, and prejudicial delay in raising a claim. See Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522 , 531 (2008).

If there has been unreasonable delay in asserting claims or if, knowing his rights, a party does not seasonably avail himself of means at hand for their enforcement, but suffers his adversary to incur expense or enter into obligations or otherwise change his position, or in any way by inaction lulls suspicion of his demands to the harm of the other, or if there has been actual or passive acquiescence in the performance of the act complained of, then equity will ordinarily refuse her aid for the establishment of an admitted right, especially if an injunction is asked. It would be contrary to equity and good conscience to enforce such rights when a defendant has been led to suppose by the word or action of the plaintiff that there was no objection to his operations. Diligence is an essential prerequisite to equitable relief of this nature. DeWolf v. Apovian, 21 LCR 16 (2013), citing Stewart v. Finkelstone, 206 Mass. 28 , 36 (1910).

Harrowby’s theory of laches is necessarily premised on the notion that Graham and/or his mother have never objected to the Irvines’ and Harrowby’s use of the Road to access Locus, and they never brought any court action in this regard. It is undisputed that Harrowby and its predecessors relied on the Road to access Locus. Prior to Harrowby submitting the Modified Subdivision Plan, Graham and his predecessor never objected to the Irvines’ and Harrowby’s use of the Road dating back to 1949. The Irvines subdivided the Property in 1993 to maximize their land value. Graham did not appeal the 1993 Subdivision Plan and never objected to use of the Road to access the Subdivision Property. Graham did not object to Harrowby’s use of the Road when Harrowby purchased Locus in 1994. Graham did not object to Harrowby’s plan to construct a home on Locus in 1995, and never raised any objection to any town official regarding access via the Road over Plaintiff Property. Graham never objected to Harrowby’s increased use of the Road when Harrowby undertook extensive and costly renovations to the house on Locus in 2005.

There is no question that Harrowby relied on Graham’s acquiescence in its use of the Road when Harrowby constructed a house on Locus in 1995. At that time Harrowby had already owned Locus for two years and had used the Road to access Locus during that time period. It is also quite clear that Harrowby reasonably relied on Graham’s continuous acquiescence when Harrowby renovated its house in 2005. Such reliance was undoubtedly foreseeable by Graham. It is inherently unjust and unfair for Graham to arbitrarily claim that, after all of these years and after considerable sums were expended, Harrowby no longer has any rights in the Road. Graham has no justification for his delay in asserting that Harrowby and/or its predecessor had no rights to use the Road to access Locus. Based on the foregoing, I find that Graham is foreclosed from claiming that Harrowby has no rights in the Road based on the doctrine of laches.

D. Estoppel:

Harrowby contends that Plaintiffs must be estopped from denying Harrowby the right to use the Road. In its brief, Harrowby breaks down its estoppel argument into two categories, (1) estoppel principles recognized by the Restatement (Third) Of Property (Servitudes) (the “Restatement”), and (2) judicial estoppel. This court chooses to analyze both estoppel principles together, taking into consideration the long, litigious history involved in this case, other lawsuits, and other subdivisions involving the Road, Plaintiff Property, and Locus.

An easement by estoppel typically arises out of two scenarios. First, when a grantor conveys land that is bounded on a street or way, the grantor and those claiming under the grantor are estopped from denying the existence of the way and the grantees’ rights therein, whether or not the street or way is currently in existence. Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 482, (1989). Second, when a grantor conveys land in reference to a recorded plan on which a street is shown, the grantor and those claiming under the grantor are estopped from denying the existence of the street. Id. Harrowby recognizes that neither of these scenarios are directly applicable to the facts at bar.

Instead, Harrowby relies on a discussion in Patel, supra, which stated that “[s]ome states have recognized the creation of an easement on general estoppel principles where it was found that a party engaged in conduct relating to the creation of an easement which was misleading and which was intended to induce reliance and another party changes his position to his detriment in reasonable reliance on the misleading conduct.” Patel, supra, at 482 (internal citations omitted). If this doctrine were to be recognized, is must be narrowly applied. See id. Plaintiffs claim that this general estoppel principle has never been recognized by the courts of the Commonwealth. Harrowby cites to the Section 2.10 of the Restatement, which states:

If injustice can be avoided only by establishment of a servitude, the owner or occupier of land is estopped to deny the existence of a servitude burdening the land when:

(1) the owner or occupier permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked, and the user did substantially change position in reasonable reliance on that belief...

This general principle of estoppel is premised on the same theory as laches, i.e. actual or passive acquiescence by one party and reliance on such acquiescence by another part. For all of the reasons discussed, supra, relating to laches, Graham shall also be estopped from claiming that Harrowby has no rights in the Road.

In addition to Graham’s continuous acquiescence in the Irvines and Harrowby’s use of the Road, Graham has also represented in various court actions, either explicitly or implicitly, that the Irvines and Harrowby have rights in the Road. “Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.” Blanchette v. School Committe of Westwood, 427 Mass. 176 , 184 (1998). The Superior Court action involved several plaintiffs, all of whom used the Road to access their properties, suing an individual who allegedly had no rights in the Road. The Irvines and Graham’s mother were co-plaintiffs in that lawsuit, both asserted rights in the Road, and both asserted that the Defendant in that suit had no rights in the Road. If Graham and his mother did not believe that the Irvines had any rights in the Road, then it is very unlikely that they would have joined with them as co-plaintiffs in a case in which they both asserted those rights.

Next, Graham testified before the ATB that several groups of people had appurtenant easement rights in the Road. In his testimony, Graham traced the Road across Plaintiff Property and onto Locus, as well as tracing Simon Athearn Road in a southerly direction towards the Smith Property. Although not expressly stated, it is clear that Graham was implying to the ATB that Locus had the benefit of an appurtenant easement over Plaintiff Property and out to Lambert’s Cove Road. Otherwise, Graham’s tracing of the Road up and through Locus would have been irrelevant and fruitless based on his legal position as set forth before the ATB. [Note 31] Together with the co-plaintiff status in the Superior Court Action, it seems clear that Graham and his mother have represented to at least two tribunals that the Irvines and Harrowby have rights in the Road.

Based on the foregoing reasoning, Graham should be estopped from denying an easement in the Road appurtenant to Locus.

As a result of the foregoing, Plaintiffs’ Motion for Summary Judgment is DENIED, Harrowby’s Motion for Summary Judgment is ALLOWED IN PART and DENIED IN PART, and the Planning Board’s Motion for Summary Judgment is ALLOWED IN PART and DENIED IN PART.

Judgment to enter accordingly.