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. A decision of today’s date has been issued (“Land Court Decision 2”). In accordance with Land Court Decision 2, it is hereby:

ORDERED and ADJUDGED that the Motion to Strike the Affidavit of Edward Rainen is DENIED.

ORDERED and ADJUDGED that the Motion to Strike the Second Affidavit of Edward Rainen is DENIED.

ORDERED and ADJUDGED that the Motion to Strike the portions of the Affidavit of Kristoffer Lukowitz that reference alternative means of access is DENIED.

ORDERED and ADJUDGED that Paragraph 3of the Affidavit of Paul Levey (the “Levey Affidavit”) and corresponding Paragraph 48 of Harrowby’s Statement of Material Facts shall be stricken.

ORDERED and ADJUDGED that 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.

ORDERED and ADJUDGED that Paragraph 10 of the Levey Affidavit regarding Graham’s testimony before the Appellate Tax Board shall be stricken.

ORDERED and ADJUDGED that any language in Paragraphs 16 and 17 of the Levey Affidavit and Paragraphs 39, 59, 60, 71, and 79 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 the property located at 245 John Cottle Road (“Locus”) used the Road.

ORDERED and ADJUDGED 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 a subdivision road (the “Modified 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.

ORDERED and ADJUDGED that the 5-0 vote of the Planning Board approving the Modified Subdivision Plan was valid.

ORDERED and ADJUDGED 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 3]

ORDERED and ADJUDGED that Condition 1 of Planning Board Decision 4 is a valid condition. [Note 4]

ORDERED and ADJUDGED that Condition 2 of Planning Board Decision 4 is a valid condition. [Note 5]

ORDERED and ADJUDGED that Condition 4 is valid and shall not be stricken from Planning Board Decision 4, provided that Condition 4 is addressed consistent with the paragraph in Land Court Decision 2 regarding the issue of the proper outside roadway diameter distance. [Note 6]

ORDERED and ADJUDGED that the Planning Board had the authority to impose Condition 8 of Planning Board Decision 4 to ensure “due regard” for existing vegetation. [Note 7]

ORDERED and ADJUDGED that Harrowby has rights in the Road consistent with (1) an instrument dated March 23, 1948, and recorded with the Registry at Book 214, Page 274, granting an easement in the Road to Harrowby’s predecessor in title (the “1948 Emmons Easement”) and (2) a document dated July 19, 1952 and recorded with the Registry at Book 222, Page 438 between Mary W. Butler and a number of individuals including Ralstone R. Irvine and Mamie M. Irvine (the “Irvines”) (Harrowby’s predecessor in title) in which the parties to that document agreed to relocate a portion of the Road (the “Relocation Agreement”).

ORDERED and ADJUDGED that the use of the Road by the Irvines and Harrowby has been adverse and was not permissive.

ORDERED and ADJUDGED that Harrowby and its predecessors used the Road openly and notoriously.

ORDERED and ADJUDGED that the Irvines’ and Harrowby’s use of the Road has been continuous for more than twenty years beginning in 1963.

ORDERED and ADJUDGED that only if Harrowby’s predecessors had waived their deeded rights in the Road in 1963, Harrowby has a prescriptive easement in the Road.

ORDERED and ADJUDGED that Graham is foreclosed from claiming that Harrowby has no rights in the Road based on the doctrine of laches.

ORDERED and ADJUDGED that Graham should be estopped from denying an easement in the Road appurtenant to Locus.

ORDERED and ADJUDGED that 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.

So ordered.