DEWITT P. DAVENPORT, as Trustee of the Davenport Realty Trust vs. DENNISPORT PARTNERS, LLC; ROBERT MEZZADRI, JUDITH DEMARCO, DORRIA DIMANNO, JEFFREY ELDREDGE, LOUIS MALZONE, and ELIZABETH NASHAWATY, as the PLANNING BOARD OF THE TOWN OF DENNIS; and THE TOWN OF DENNIS.

Plaintiff Davenport Realty Trust filed its unverified Complaint on November 29, 2011, 1) pursuant to G. L. c. 40A, § 17, appealing a decision (“Planning Board Decision 2”) of Defendant Planning Board of the Town of Dennis (the “Planning Board”) which approved the special permit application (“Special Permit 2”) of Defendant Dennisport Partners, LLC (“Dennisport”) to remove a duplex on property located at Parcel 63, Searsville Road in Dennis (“Locus”) and replace it with an eighteen unit municipally sponsored housing project (the “Project”), and 2) pursuant to G. L. c. 231A, enter a binding declaration with respect to the status of Elkannah Howland Road (the “Road”) in Defendant Town of Dennis (the “Town”). [Note 1] On December 19, 2011, Dennisport filed its Answer and Counterclaim, claiming use of the Road by prescription, estoppel, necessity, or implication. On December 20, 2011, the Town filed its Answer. Plaintiff filed its Answer to Counterclaim on December 21, 2011. A case management conference was held on January 3, 2012.

A pre-trial conference was held on October 22, 2012. On January 7, 2013, Plaintiff filed its Motion in Limine to Exclude the Expert Testimony of Edward Rainen. Dennisport filed its Opposition on January 9, 2013. Plaintiff filed its Reply on January 10, 2013. A site view and the first day of trial at the Barnstable Juvenile Court was held on January 14, 2013. At the first day of trial, I allowed Plaintiff’s Motion in Limine to exclude the expert testimony of Edward Rainen. The second day of trial was held at the Land Court in Boston on January 15, 2013. Post trial briefs were filed on March 19, 2013, and at that time the matter was taken under advisement. On March 20, 2013, Dennisport filed a Motion to Strike Exhibit to Plaintiff’s Post-Trial Brief (the “Motion to Strike”), and Plaintiff filed an Opposition on April 3, 2013. A hearing was held on the Motion to Strike on April 9, 2013.

Testimony at trial for Plaintiff was given by DeWitt Davenport (Plaintiff) and James Quirk (“Quirk”) (title examiner). Testimony for Dennisport was given by Terrance Hayes (“Hayes”) (Dennis Health Director), Kevin McNeill (“McNeill”) (principal of Dennisport), DeWitt Davenport (Plaintiff), Chester Lay (“Lay”) (professional land surveyor), and Robert Drake (“Drake”) (environmental engineer). Sixty-six exhibits were submitted into evidence, some in multiple counterparts.

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

1. Dennisport is a limited liability company with its place of business at 122 Sea Street in Dennisport, Massachusetts, and is the record owner of Locus. Dennisport purchased Locus for $455,000 in November 2005. Locus is a roughly rectangular parcel of land that contains 71,142 square feet and is shown as Parcel 63 on the 2006 version of the Dennis Assessor’s Map (the “2006 Assessors’ Map”). [Note 2] Locus, the subject of Special Permit 2, lies within an R-40 residential zoning district and currently houses a duplex with a 1,040 square foot foundation.

2. DeWitt Davenport (“DeWitt”) is the trustee of Plaintiff, which owns Parcel 65 as shown on the 2006 Assessors’ Map, which abuts Locus to the south. Plaintiff also owns Lots 2 and 4 [Note 3] as shown on the 2006 Assessors’ Map, which abut Locus to the north and to the east, respectively. [Note 4] These three properties are referred to as “Plaintiff Property.”

3. On January 3, 2006, Dennisport applied to the Planning Board (the “2006 Application”) for a special permit (“Special Permit 1”) to be issued for a substantially similar version of the Project under the municipally-sponsored, affordable housing provisions of section 4.9 of the Town’s Zoning By-law (the “By-law”). Section 4.9 was adopted by the Town under the authority of G.L. c. 40A, §9 as an alternative to G.L. c. 40B. By decision filed with the Town Clerk on March 22, 2006 (“Planning Board Decision 1”), the Planning Board voted to issue Special Permit 1. Planning Board Decision 1 indicated that the Planning Board considered, inter alia, a plan entitled “Proposed Septic System Layout,” dated February 23, 2006, and prepared by KCJ Engineering (the “2006 Septic Plan”), a plan entitled “Existing Site Conditions,” dated February 23, 2006 prepared for Dennisport Partners by KCJ Engineering (the “2006 Conditions Plan”), and a plan entitled “Proposed Site Conditions, dated February 23, 2006 prepared for Dennisport Partners by KCJ Engineering (the “2006 Site Plan”). [Note 5] The 2006 Site Plan depicted “Elkanah Howland’s Road” traveling southerly from Great Western Road (“GWR”), crossing through Plaintiff Property and onto Locus running adjacent to the westerly boundary of Locus. Planning Board Decision 1 made a number of findings including as follows:

• The road that provides the access to the site has historically been used only to get to and from this site and the petitioner’s proposal seeks to continue that practice. This fact helps to isolate the property and segregates its traffic away from the other neighborhood traffic and adds to the separation of the development from the neighborhood.

• The road serving the site, Elkanah Howland Road, is a “statutory private way” enjoying the benefit of a town layout by the Dennis Board of Selectmen, but never the actual acquisition of a fee in the street by the town.

4. On March 31, 2006, Plaintiff filed a complaint with the Barnstable Superior Court (the “Superior Court Action”) challenging Planning Board Decision 1 and alleging that the Planning Board had exceeded its authority under §§ 4.9.2.2.and 4.9.2.4.2 of the By-law, which allowed the Planning Board to reduce the minimum lot area requirements set forth in the By-Law. Plaintiff claimed that the Planning Board improperly used its authority under those sections to reduce all intensity of use requirements. The status and location of the Road were not at issue in the Superior Court Action. The Superior Court held that Special Permit 1 was valid, but, upon Plaintiff’s appeal, the Massachusetts Appeals Court reversed and overturned Special Permit 1 (Davenport v. Planning Board of Dennis, et al., 76 Mass. App. Ct. 221 (2009)) (the “Appeals Court Decision”). The Appeals Court Decision held that the By-law had no provision allowing the Town to reduce width, frontage and lot coverage requirements for the Planning Board to grant Special Permit 1. The Appeals Court remanded the matter to the Superior Court.

5. After the Appeals Court Decision was rendered, the parties executed an “Agreement for Entry of Final Judgment” “ANNULLING [Planning Board Decision 1].” Subsequently, the Town amended the By-law, giving the Town authority to issue special permits allowing increases in intensity and density, and relaxing off-street parking requirements. Section 4.9.2.4.2 of the By-law, entitled “Modified Procedures,” states:

A municipally sponsored housing project may be allowed upon issuance of a special permit provided that the Planning Board finds that the conditions present on the site are adequate to support the proposed use, protect the surrounding neighborhood, and meet the intended goals of providing affordable housing, and further meets the following requirements:

a. the minimum requirements of Section 2.3, 3.1, and 4.2 shall not apply provided however that there must be:

a. a maximum height of 35 feet and two stories

b. a maximum building coverage of 15%

c. a maximum total site coverage of 50%

d. a minimum building separation of twenty feet; and

e. a determination that the parking will be adequate in number and size to serve the proposed use of the site.

b. Minimum Area of the Tract to be Developed under Section 4.9.2.3.1 may be less than 2 ½ acres.

c. The maximum density of the Tract to be Developed may be greater than one bedroom per 10,000 sf based upon the recommendation of the Dennis Board of Health that the waste water system recommended for the site meets all state and local environmental standards for the protection of public health and water quality.

d. The tract of land to be developed shall provide for front, rear, and side setbacks of 20 feet, which shall constitute vegetated buffers, except for where crossed by site driveways; and

e. The minimum parking requirement may be less than 2 parking spaces per residential unit. The Planning Board shall have the discretion to reduce all other off-street parking requirements as otherwise applicable under Section 3.1 based upon a finding that the parking is sufficient to meet the needs of the proposed use of the property.

6. In anticipation of applying for Special Permit 2, McNeill submitted a letter to Hayes asking him to review the Project on behalf of the Board of Health. Acting on behalf of the Board of Health, Hayes reviewed two plans relating to the Project: the 2006 Septic Plan and a plan entitled “Site Plan,” dated September 20, 2010, and prepared by S.A. Architecture, Inc. (the “2010 Site Plan”). The 2006 Septic Plan is a detailed plan depicting the septic and wastewater systems for the version of the Project that gave rise to Special Permit 1. The 2010 Site Plan shows a reconfigured layout of the Project. [Note 6] The layout of the Project had been amended between the creation of the 2006 Septic Plan and the 2010 Site Plan. Hayes testified that in order to determine whether the Project complied with all state and local septic regulations he would have to review a complete septic system layout plan.

7. Based on his review of the 2006 Septic Plan and the 2010 Site Plan, Hayes issued a memorandum to the Planning Board on September 9, 2011 (the “Hayes Memo”). The Hayes Memo stated:

On behalf of the Board of Health through the authority granted by Massachusetts General Law, Chapter 111, § 30, I recommend to you that the proposed wastewater treatment systems for this project should meet all state and local environmental standards for the protection of the public health and water quality. This recommendation in no way reflects approvals of these wastewater treatment systems, which we will grant only after a more extensive review.

8. On September 21, 2011, under section 4.9.2.4 of the By-Law, Dennisport submitted an application (the “2011 Application”) to the Planning Board for Special Permit 2 to “construct 18 affordable housing units, to be located within 6 buildings.” The 2011 Application description requested that the Planning Board “find that the proposed density may be permitted to exceed one bedroom per 10,000 square feet of land [as allowed by section 4.9.2.4.2.c of the By-Law], based upon the recommendation of the Dennis Board of Health that the wastewater system recommended for the site would meet all state and local environmental standards from [sic] the protection of public health and water capacity.” Together with the 2011 Application, Dennisport submitted the 2006 Conditions Plan to the Planning Board again and a plan entitled “Site Plan” dated September 8, 2011, and prepared by S.A. Architecture, Inc. (the “2011 Site Plan”). [Note 7] Section 2.3.2 of the By-law requires a residential unit within R-40 to have fifty feet of frontage and the Road provides adequate frontage if it is a public way (as discussed, infra).

9. The Planning Board held a public hearing on the 2011 Application on November 14, 2011. Planning Board Decision 2, the result of a unanimous vote approving the 2011 Application, was filed with the Town Clerk on November 17, 2011. Under its authority in section 4.9.2.4.2 of the By-Law, the Planning Board made several findings:

• The development, density increase and relaxation of zoning standards has no material, detrimental effect on the character of the neighborhood or Town and is consistent with the performance standards of the Dennis Zoning By-law...

• The project is consistent with the General Objectives of the Municipally Sponsored Housing Project as stated in Section 4.9.2.4.1 as noted below:

· promotes in-fill residential development opportunities;

· is compatible with the adjacent neighborhood

· encourages development of economically priced housing and a variety of types of housing

· fosters flexibility and creativity in the creation of affordable housing

• The [Project] is consistent with Section 4.9.2.4.2 as noted below:

· Buildings are under 35 feet tall

· Building coverage is under 15%

· Maximum site coverage is under 50%

· Buildings are greater than 20 feet apart and meet the normal 40 foot separation requirement in other parts of the zoning by-law

· The site complies with the normally require parking for residential uses, providing two parking spaces for every unit

· The site is under 2 ½ acres

· The Board of Health has submitted a letter illustrating that the site can accommodate the 24 bedrooms proposed for the site and therefore the site can accommodate more than one bedroom for every 10,000 sf....

• The road that provides the access to the site has historically been used only to get to and from the site and the petitioner’s proposal seeks to continue that practice. This fact helps isolate the property and segregates its traffic away from the other neighborhood traffic and adds to the separation of the development from the neighborhood.

• The road serving the site, Elkannah Howland Road, is a ‘statutory private way’ enjoying the benefit of a town layout by the Dennis Board of Selectmen, but never the actual acquisition of a fee in the street by the Town. [Note 8]

• The status of Elkannah Howland Road as a ‘statutory private way’ was established by Town Counsel in a letter dated September 13, 1990, from Attorney Elizabeth Lane to Dennis Assistant Executive Secretary for Community Development Sheila Vanderhoef...

10. Section 5 of the By-Law defines lot area as “[t]he horizontal area of a lot exclusive of any area within a street.” Drake testified that the total square footage of Locus that could be developed is the portion of Locus to the east of the Road, which consists of 65,798 square feet. [Note 9] The By-law defines a building as: “[a] structure having a roof or similar temporary or permanent covering which encloses useful space.” The By-law defines building coverage as “the percentage of the lot area, exclusive of wetland area, covered by the area of a building or building(s), refer to §5.B for definition of building.” McNeill testified the total building coverage for the Project is 9,824 square feet, which translates to a building coverage ratio of 14.9%. Drake testified that the floor area of all six buildings was 9, 802 square feet, which also translates roughly to a building coverage ratio of 14.9%. In their calculations, McNeill and Drake did not include the floor areas of the porches, deck, and stairs for each of the six buildings. McNeill further testified that total porch area was 398 square feet; total deck area was 336 square feet; and total stair area was 343 square feet. If the square footage for the porches, decks, and stairs were included within building coverage, the building coverage ratio would exceed the 15% maximum threshold pursuant to section 4.9.2.4.2.a.b of the By-law.

11. Drake testified as an expert in the field of engineering employed by Beta Group, an environmental engineering firm. He created the 2006 Conditions Plan and the 2006 Site Plan, and he also helped calculate the building coverage at 14.9% and total site coverage at 36.7% for the version of the Project submitted in Application 1. The Project was re-configured, as shown on the 2010 Site Plan and the 2011 Site Plan, by another firm, SA Architecture. [Note 10] In 2012, Drake designed a new septic system plan (not submitted into evidence) for the re-configured Project (the “2012 Septic Plan”). Hayes never reviewed the 2012 Septic Plan prior to issuing the Hayes Memo.

12. The Town of Dennis Board of Selectmen (the “Selectmen”) voted in 1845 (the “1845 Vote”) to accept a layout (the “1845 Layout”) of a road in South Dennis. The 1845 Layout stated:

On the annexed petition of Lemuel Studley and others and Horace Nickerson and others, we the [Selectmen] have laid out for the use of [the Town] a Town way, as follows: Beginning at a marked tree by the road that passes nearly north and south and sets 58.3 degrees W. 9 rods, 15 links over Samuel Small’s land to Elkanah Howland’s land thence N. 56 degrees W. on the south side of said Howland’s land 18 rods thence same course 8 rods over Elkanah Howland’s and Otis Baker’s land...as the fence now stand over said Howland and Baker’s land 10 rods, 7 links to the southwest corner of said Howland’s field, thence south 37 degrees W. over Otis Baker and Jonathan Nickerson, Jr., land 7 rods thence same course over Jospeh Nickerson’s land 8 rods to a Town road - the aforesaid road ... [to be] ... one and a half rods in width and to lay on the said easterly side of said range ... [Note 11]

Article 17 of the Town Meeting Warrant for the February 10, 1846 Town Meeting (the “Warrant”) states “[t]o know if the Town will accept a road laid out by the Selectmen near Elakanah Howlands Dec. 30, 1845.” A report (the “Annual Meeting Report”) of the Annual Town Meeting (the “Annual Meeting”) held on February 10, 1846 stated that the Town voted (the “Town Vote”) to accept the 1845 Layout of “the road near Elkanah Howland’s.” [Note 12] There is also a Town ledger (the “Ledger”) indicating that the Town paid certain sums of money to certain individuals as compensation for the taking and laying out of the Road.

13. R.S. 1836, C. 24, section 69 (“Section 69”), the statute in effect at the time of the 1845 Layout, the Annual Meeting, and the Town Vote, reads:

No town way or private way, which may have been laid out or altered by the Selectmen shall be established, until such laying out, or alteration, with the boundaries and measurements of the said way, shall have been reported to the town, and accepted or allowed, at some public meeting of the inhabitants, regularly warned and notified therefor, nor unless such laying out . . . shall have been filed in the office of the town clerk, seven days at least before such meeting.

14. In 1855, GWR was laid out as a public way by the Selectmen (the “GWR Layout”). The GWR Layout states, in part, that it begins at a point on the southwestern corner “of land of Alpheus Baker.” The GWR Layout also states that it crosses a public way at two points, but the GWR Layout does not mention the name of such public way or ways and does not state whether it crosses over two different public ways or one public way two times.

15. Lay, Dennisport’s expert surveyor, testified as an expert in the field of land surveying. Lay used both his knowledge of surveying and his experience construing deeds to create Chalk A, which illustrates that the relevant portion of the Road starts at GWR and travels southwesterly for a distance of 858 feet. [Note 13] Along that course, the Road crosses a small strip of land on the westerly side of Plaintiff Property, close to the westerly boundary of Locus, and continues southwesterly to merge with Miller’s Road before terminating at Searsville Road. Lay determined the course by analyzing the 1845 Layout and several deeds in the vicinity of GWR, Searsville Road, and Locus. The 1845 Layout states that the Road begins (at its north/easterly terminus) by “a large tree by the road that passes nearly north and south.” This north-south road (the “N/S Road”) no longer exists, but Lay ascertained its former location by consulting an 1851 U.S. Coast Survey. Starting at that road, Lay proceeded by the courses and distances listed on the 1845 Layout to plot the Road, matching up the course of the Road with the property owners listed as those burdened by the Road. The relevant portion of the Road, which is described near the end of the 1845 Layout, is in a substantially similar location to that portion of the Road shown on the 2010 Site Plan and the 2011 Site Plan. That is, the Road crosses both Plaintiff Property and Locus. It appears that the Road, traveling southerly from GWR, crosses over another parcel of land (the “Unknown Parcel”) prior to intersection with a portion of Plaintiff Property. The Unknown Parcel is depicted as an unnumbered lot on the 1976, 1981, and 2006 versions of the Assessor’s Map. It is also depicted as “Owner Unknown” on the Marceline Subdivision Plan (defined, infra). [Note 14]

16. Quirk, an expert title examiner, testified regarding the layout of the Road on behalf of Plaintiff. Quirk examined titles in the vicinity of the Road and determined that Lay’s proposed layout of the Road (as shown on Chalk A) was adjacent to and may cross into two parcels of registered land, and the certificate of title and plans to these registered parcels make no mention of the Road as a possible encumbrance. Quirk also suggested the 1845 Layout of the Road could begin more than 100 feet to the east of where Lay determined the Road began based on his interpretation of the GWR Layout. This opinion was based on Quirk’s interpretation of the GWR Layout and the location of other town ways that intersect with GWR.

17. There are two registration cases that are relevant to this case: Registration Case No. 34903 (“34903”) (decree entered in 1966) and Registration Case No. 36728 (plan filed with the Land Registration Office on August 25, 1970) (“36728,” and together, the “Registration Cases”). The subject property in 34903 (the “34903 Property”) is shown on “34903A Plan of Land in South Dennis,” dated November 16, 1966 (the “34903 Plan”). The subject property in 36728 (the “36728 Property”) is shown on “36728A Plan of Land in Dennis”), dated April 29, 1970 (the “36728 Plan”) The 34903 Property abuts the 36728 Property to the north and to the east, and both properties are located to the north of GWR. The 36728 Property is shown as “Owner Unknown” on the 34903 Plan. The easterly abutter to the 34903 Property is also shown as Owner Unknown on the 34903 Plan. The Road as depicted on Chalk A runs through the 34903 Property but it does not cross into the 36728 Property.

18. A deed from Rita Callahan dated May 27, 1947 to George Marceline and Dorothy Marceline (the “Marcelines”), recorded with the Registry at Book 671, Page 204 (the “Marceline Deed”), conveyed certain property to the southwest of Locus (the “Marceline Property”). The Marceline Deed describes the Marceline Property as

Beginning at the Southwesterly corner of the premises by the road leading to Searsville, in range of land now or formerly of Joseph T. Baker; thence running Northerly in range of land now or formerly of said Baker to land now or formerly of Ebenezer C. Kelley; thence running Easterly in range of land now or formerly of said Kelley to a road commonly known as “Elkanah Howland’s Road” thence running Southerly by said Elkanah Howland’s Road to the said Searsville Road; and thence running westerly by said Searsville Road to first mentioned bound and point of beginning...

In 1966, the Marcelines subdivided the Marceline Property as shown on a plan of land entitled “Subdivision Plan of Land in South Dennis, Mass. For [the Marcelines],” dated February 4, 1966 (the “Marceline Subdivision Plan”). Generally, the eastern/northeastern boundary of the Marceline Property is a dogleg shaped road. The Marceline Subdivision Plan shows that the northeastern boundary of the Marceline Property is “overgrown wood road” (to the north east) and the easterly boundary is Miller’s Road. In addition, the Marceline Subdivision Plan also depicts a road labeled as “Elkanah Howland’s Road,” beginning at Searsville Road and running the same course as Miller’s Road. Then, at a point where Miller’s Road appears to bend to the northwest at the bend in the dog leg boundary of the Marceline Property, Elkanah Howland’s Road, as shown on the Marceline Subdivision Plan, continues to travel due north and does not bend. [Note 15]

19. The inventory of roads maintained by the Town’s Department of Public Works states that “Elkanah Howland Road” is not a public road. On both the 1976 Assessors’ Map and the 1981 Assessor’s Map, a portion of the Road is depicted. This portion, depicted as dashed lines and not labeled as any road, begins at Searsville Road and runs in the same course and location as Miller’s Road. When Miller’s Road bends to the northwest, the Road, as shown on said versions of the Assessors’ Map, continues in a northerly direction towards GWR but is shown to end prior to reaching GWR. The 2006 Assessors’ Map, however, shows the road beginning at Searsville Road, running in the same course and location as Miller’s Road, continuing to the north when Miller’s Road bends to the northwest, and finally running to and terminating at GWR.

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At the outset, this court must address the Motion to Strike. The first set of substantive issues in this case relate to the status of the Road. Dennisport argues that any and all issues with respect to the Road should have been adjudicated in the Superior Court Action, and as a result of the final outcome of the Superior Court Action, Plaintiff is barred by the doctrine of res judicata from arguing any such issues. Plaintiff claims that res judicata does not apply. Next, Plaintiff argues that the Road is not a public way through either public prescriptive rights, dedication, or municipal action. Plaintiff also contends that Dennisport has not acquired an easement by necessity, implication or estoppel in the Road. In the alternative, Plaintiff argues that even if the Road is a public way, the 1845 Layout, Chalk A, and the 2011 Site Plan are not consistent. With respect to the Road, Dennisport argues that the Road is a public way. [Note 16] Dennisport also contends that the Road exists as shown on the 2011 Site Plan, i.e. across the westerly side of Locus. As such, Dennisport contends that the Road provides the necessary access and frontage to Locus.

The second set of substantive issues relates to the Project’s compliance with the dimensional requirements set forth in the applicable sections of the By-law. Plaintiff contends that the Project exceeds the maximum building coverage requirement of 15 % as required by the By-Law. Dennisport states that building coverage is 14.9%, in compliance with the By-law. Plaintiff also argues that the Planning Board erred in granting Special Permit 2 because it approved the 2011 Application even though the Project provides for greater than the maximum 10,000 square feet per bedroom. In this regard, Plaintiff claims that the Board of Health did not properly inform the Planning Board that the wastewater system to be used for the Project will comply with all state and local regulations, which is a pre-requisite for allowing a higher density pursuant to section 4.9.2.4.2.c of the By-law. In response, Dennisport asserts that the Board of Health properly informed the Planning Board that the wastewater system will comply with such regulations. I shall examine each issue in turn.

I. Motion to Strike:

Together with its post-trial brief, Plaintiff submitted “Exhibit A” entitled “Supposedly Elkannah Howland Road,” which purports to depict Plaintiff’s interpretation of the 1845 Layout. The Motion to Strike seeks to exclude Exhibit A. Exhibit A was not a trial exhibit, is not dated, and this court cannot ascertain who created Exhibit A. Plaintiff opted to not put any expert surveyor on the witness stand in its case in chief and Plaintiff never attempted to submit a competing exhibit or chalk to Chalk A. Now, with no opportunity for cross-examination, Plaintiff attempts to submit Exhibit A to show its determination of the layout of the Road. Plaintiff had an opportunity to demonstrate its interpretation to the court at trial and failed to do so. Based on the foregoing, Dennisport’s Motion to Strike Exhibit A to Plaintiff’s post-trial brief is ALLOWED.

II. Res Judicata:

Dennisport contends that Plaintiff is barred from arguing any issues relating to the status of the Road because such issues should have been litigated in the Superior Court Action. Plaintiff argues the issue of the Road’s existence and status were not essential in the Superior Court Case. In Massachusetts, the doctrine of res judicata encompasses both claim preclusion and issue preclusion. Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005), citing Heacock v. Heacock, 402 Mass. 21 , 23 n. 2, (1988). Dennisport argues both claim and issue preclusion with respect to Plaintiff’s claim that the Road is not a public way and does not exist on the ground in conformity with the 2011 Site Plan.

“Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents litigation on all matters that were or could have been adjudicated in the action.” Kobrin, supra, at 843. Issue preclusion “prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.” Heacock, supra, at 23, n.2. Res judicata has been extended to situations where there is neither a full trial nor a judgment on the merits. “A consent judgment generally is not given preclusive effect in future litigation, unless the judgment manifests an intent of the parties that it have such effect.” Pinshaw v. Metropolitan Dist. Com., 402 Mass. 687 , 697 n.14 (1988) citing Restatement (Second) of Judgments Section 27 comment e (1982). An agreement for judgment does not provide a basis for issue preclusion. See CBI Consulting, Inc. v. Trs. of Boston College, 84 Mass. App. Ct. 1111 (2013), citing Jarosz v. Palmer, 436 Mass. 526 , 535-536 (2002).

A dismissal with prejudice constitutes a valid and final judgment for the purposes of claim preclusion. Department of Revenue v. LaFratta, 408 Mass. 688 (1990); Tuite & Sons v. Shawmut Bank, N.A., 43 Mass. App. Ct. 751 , 755 (1997), this principle does not apply with equal force to issue preclusion. Because claim preclusion involves the same claims and the same parties, it is necessary that a stipulation of dismissal be accorded the same effect as a final judgment; it would have no force if the parties were permitted to change their minds and relitigate the exact same claims against the same parties. The same does not hold true for issue preclusion.” Jarosz, supra, at 535-536.

A. Claim Preclusion:

A successful assertion of claim preclusion requires three elements to be found: “(1) the identity of privity of the parties to the present and prior actions; (2) identity of the cause of action; and (3) prior final judgment on the merits.” De Luz v. Dept. of Correct., 434 Mass. 40 , 45 (2001), quoting Franklin v. Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933). It is undisputed that the parties to the case at bar and the Superior Court Action are identical. The parties also entered into an agreement for final judgment on the merits in the Superior Court Case, annulling Planning Board Decision 1. The issue of whether the Agreement for Judgment constitutes a final judgment for res judicata purposes depends on whether the claim giving rise to the case at bar is identical to the claim in the first claim. See Jarosz, supra. This issue is discussed, infra.

The second prong of claim preclusion is at issue: “the identity of the cause of action.” See Tynan v. Attorney General, 453 Mass. 1005 (2009) (“[t]here is nothing in the complaint in the present case that was not, or could not have been, brought in the first complaint.”); Zelinsky v. Pontbriand, 15 LCR 183 (2007) (“[t]here is nothing to show that any of the relevant facts...have been the subject of any material change since the Superior Court heard and decided her case there.”) Dennisport points out that Planning Board Decision 1 and Planning Board Decision 2 cite the exact same language regarding access via the Road and its status as a “statutory private way.” In Count I in the case at bar, Plaintiff raises issues relating to the Road. According to Dennisport, because Plaintiff never included a Count challenging the status and location of the Road in the Superior Court Action, the doctrine of res judicata prevents Plaintiff from raising such issues now. Plaintiff states that the Superior Court Action was an attempt to invalidate Special Permit 1 and the objective of this action is to invalidate Special Permit 2. According to Plaintiff, this critical distinction results in two separate causes of action.

This court is inclined to agree with Plaintiff on this point. It is true that Plaintiff could have challenged Dennisport’s rights in and the location of the Road in the Superior Court Action but it declined to do so. However, unlike in Tynan and Zelinsky, supra, the complaint in the case at bar raised new issues and new facts that were not raised and could not have been litigated in the Superior Court Action, i.e. the validity of Special Permit 2 under a modified section of the By-law. Moreover, neither the Superior Court nor the Appeals Court made any findings, declarations, or judgments relating to the Road. It is inherently unfair to prevent Plaintiff from litigating any claims relating to the Road when no court of competent jurisdiction has ever been asked to make any rulings regarding the Road. Plaintiff is not getting the proverbial “second bite at the apple” on issues relating to the Road because it never took a “first bite” in the Superior Court Action.

Had Plaintiff lost its appeal in the Superior Court Action, Plaintiff would have been barred by claim preclusion if it attempted to bring another Complaint seeking to invalidate Special Permit 1 on grounds that Dennisport had no rights in the Road. See Bendetson v. Building Inspector of Revere, 36 Mass. App. Ct. 615 (1994).

Bendetson was obliged in the first action to put forward every reason, every argument, and every theory he intended to assert as grounds for the illegality of an occupancy permit; there was no legal impediment to his doing so. He cannot choose to hold back one theory to await the outcome of different theories. To permit that possibility would defeat the goal of judicial efficiency and the conclusiveness of judgments. Id. at 621.

The case at bar is different from Bendetson in that Plaintiff won the Appeals Court Decision, which set in motion the amendment to the By-law. Since Plaintiff won and Special Permit 2 was issued, Plaintiff has the right to raise all issues as to why Dennisport is not entitled to Special Permit 2. The challenge in the case at bar has a separate objective than in the Superior Court Action, and Plaintiff is entitled to raise all issues relative to Special Permit 2. As such, I find that the case at bar and the Superior Court Action do not share an “identity of cause of action.”

Accordingly, I find that Plaintiff is not barred from litigating Count I relating to the Road by the doctrine of claim preclusion.

B. Issue Preclusion:

Before precluding a party from re-litigating an issue, “a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.” Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998). “Additionally, the issue decided in the prior judgment must have been essential to the earlier judgment.” Id. at 134-135. (1) There is no final judgment on the issue of the Road as a public way. See Jarosz, supra. (2) Davenport, the party against whom preclusion is being asserted, is the same party as that in the prior adjudication. (3) The issues in the case at bar relate to the issuance of Special Permit 2, under a modified section of the By-law, compared to Special Permit 1. Moreover, any issues relating to the Road were never litigated in the Superior Court Action. As such, the issues in the case at bar and the Superior Court Action are not identical.

Based on the foregoing, I find that the doctrine of issue preclusion does not bar the litigation of all issues relating to the Road. Accordingly, I find that res judicata does not apply to the case at bar relative to the status of the Road.

III. Issues Relating to the Road:

The next set of issues that must be addressed relates to the status of the Road. Dennisport claims that the Road is a public way laid out pursuant to the 1845 Layout and the Town Vote held in 1846. Plaintiff claims that there is not sufficient evidence in the record to prove that the Road was properly laid out in accordance with Section 69. The parties also dispute the location of the Road. Plaintiff contends that Locus has no frontage on the Road. This issue shall essentially be decided pursuant to the discussion relating to the status of the Road as a public way and the location of the Road.

A. The Road as a Public Way:

Dennisport claims that the Road is a public way; Plaintiff contends that the Road was never properly laid out by the 1845 Vote. More specifically, Plaintiff contends that there is no plan depicting the layout of the Road and that no plan was ever filed with the Town Clerk seven days prior to the 1845 Vote.

If the Road is shown to be a public way crossing Plaintiff Property, then Dennisport may freely use the Road for access and frontage to Locus. In determining whether a way in a city or town is a “public way,” it is well established that a way “has become public in character by [1] a laying out by public authority in manner prescribed by statute, [2] by prescription, or [3] prior to 1846, by dedication by owner to public use, permanent and unequivocal.” Fenn v. Town of Middleborough 7 Mass. App. Ct. 80 , 83 (1979). Dennisport relies on the first option - layout by the Town as prescribed by statute, i.e. Section 69.

Section 69 requires: (1) a report describing the layout of way including the boundaries and measurements of the way, (2) the filing of the report with the town in the office of the town clerk seven days before the public meeting, and (3) allowed at a public meeting duly called. In the case at bar, the evidence indicates that the 1845 Layout, which constitutes the “report,” was filed with the Town in the office of the Town Clerk on December 30, 1845. [Note 17] Exhibit 17 states that a “Copy of Report,” i.e. the description of the 1845 Layout, was filed with the Town in the office of the Town Clerk on December 30, 1845. The evidence further indicates that the citizens of the Town voted to accept “a road as laid out by the Selectman near Elkanah Howlands Dec. 30. 1845,” at the Annual Meeting on February 10, 1846. [Note 18] As such, it is clear that the 1845 Layout was filed with the Town in the office of the Town Clerk well in advance of the seven day minimum requirement prior to the Town Vote at the Annual Meeting.

The foregoing notwithstanding, Plaintiff contends that the 1845 Layout is invalid because no “layout plan” was filed with the Town Clerk seven days prior to the Annual Meeting. Plaintiff relies on Jeffries v. Swampscott, 105 Mass. 535 , 536 (1870), which states: “the report of the selectmen in this case, if considered independently of the plan, is not such a description as the statute requires...The plan, if it can be considered apart of the report, was not only an important but the vital part of it, and without it the rest of the report was of no account whatever.” Id. (emphasis supplied). “The giving of notice and filing of a layout required by the provisions of G. L. c. 82, §§ 22, 23, are not mere procedural technicalities.” Markiewicus v. Methuen, 300 Mass. 560 , 563.

As one of the safeguards of individual rights against inconsiderate or capricious action on the part of municipal authorities, it establishes a rule to secure precision and exactness of description on the part of the selectmen as to the changes which they propose to make. It is material to the landowner to know exactly what portion of his land is to be taken, and to the voters to know exactly what the proposition is upon which they are to decide. Jeffries, supra, at 536.

Unlike the report of the selectmen in Jeffries, the report in the case at bar, i.e. the 1845 Layout filed with the Town Clerk, gave a detailed metes and bounds description of the land subject to the taking and public layout of the Road. The 1845 Layout provides notice to all abutting lot owners and all citizens of the Town of the exact location of the 1845 Layout of the Road. The purpose of Section 69, as articulated in Jeffries, was satisfied by the detailed description in the 1845 Layout. This court does not interpret Jeffries to require that a plan must always be filed with the Town Clerk pursuant to Section 69; but only that in Jeffries a plan needed to be filed because the report and the layout were inadequate to put any abutters and the citizens of the town of Swampscott on notice of the exact location of the road that was being altered. The case at bar does not present this problem because the 1845 Layout includes the “boundaries and measurements” of the Road, in accordance with Section 69. Thus, the lack of any plan depicting the 1845 Layout is not fatal to the validity of the 1845 Layout. [Note 19]

Based on the foregoing, I find that the Road was properly laid out and accepted by the Town as a public way in 1846. [Note 20]

B. Location of the Road:

The dispute over the location of the Road “is a factual question which must be resolved on all the evidence, including the numerous surveys and plans, and relevant title information.” Allison v. Nyberg, 2012 WL 1493755 (Apr. 27, 2012 as amended Nov. 8, 2012) citing Hulbert Rogers Machinery Co. v. Boston & Main Railroad, 235 Mass. 402 , 203 (1920). “[T]he law does not require absolute certainty of proof to determine a boundary line. The standard, as in all civil cases, is ‘by a preponderance of the evidence,’ i.e. more probably that not.” McCarthy v. McDermott, 18 LCR 405 , 406 (2010). The evidence regarding the location of the Road exists in three forms: (1) the expert testimony of Lay (Dennisport’s surveyor); (2) the expert testimony of Quirk (Plaintiff’s title examiner); and (3) sixty-six exhibits consisting of town, county, and state records, maps, deeds, and recorded plans. [Note 21]

“Questions about the extent of the knowledge which the surveyor has of relevant conveyances go to the weight of the testimony rather than to its competence...[t]he surveyor, at the time he testified, could have been found to have had sufficient knowledge of the relevant conveyances to provide a proper foundation for his testimony.” Ellis v. Wingate, 338 Mass. 481 (1959). Lay testified that he used both his knowledge of surveying and his experience construing deeds to create Chalk A, which illustrates his opinion that the Road is shown correctly on the 2011 Application. Plaintiff, through cross-examination of Lay and through the testimony of Quirk, has mounted several challenges to Lay’s Chalk A and Lay’s determination of the location of the Road.

1. The GWR Layout:

Lay analyzed both the GWR Layout and the 1845 Layout to determine the location of the Road. Plaintiff contends that Lay erroneously analyzed the GWR Layout and that Lay erroneously determined the western starting point of GWR. The western starting point in the GWR Layout is “the southeast corner of Alpheus P. Baker’s front yard in Dennis at a stake a little west of the shed of Nathan Underwood in Harwich.” Lay testified that Alpheus Baker’s property, as shown on Chalk A, is in the same location as such property is shown on two other plans of land: “Plan of County Way in Dennis, Part of Great Western Road as defined by the County Commissioners,” dated December, 1926 (the “1926 GWR Plan”), and “Plan of Upper County Road in the Town of Dennis as laid out by the County Commissioners,” dated January 7, 1932 (the “1932 Upper County Road Plan”). Both the 1926 GWR Plan and the 1932 Upper County Road Plan depict GWR beginning at a point on the southeasterly corner of land of Alpheus Baker and then running in a northeasterly direction. Lay credibly testified that his depiction of the beginning of GWR on Chalk A, in the southeasterly corner of land of Alpheus Baker, is the starting point of GWR. The 1926 GWR Plan and the 1932 Upper County Road Plan corroborate such testimony. Plaintiff contends that this is not an accurate starting point of GWR because Alpheus Baker owned many parcels of land in Dennis (which fact is not disputed), and Dennisport cannot definitively prove the starting point of GWR. On cross-examination, Lay continued to credibly testify that the starting point of GWR that he chose was correct. Based on Lay’s research, it appears that GWR begins where he marked it because all of the abutters listed in the courses/distances in the GWR Layout “line up.” Plaintiff suggested that the starting point of GWR could be 100 feet to the east of where Lay has indicated; however, Plaintiff and its experts have provided no basis in fact for this assertion and Plaintiff offers no alternative starting point of GWR. Moreover, as Lay testified, the deeds of abutters would not “line up” properly if the starting point of GWR was more than 100 feet to the east. As such, I find that GWR begins at the point as determined and testified to by Lay (which testimony is embodied on Chalk A). [Note 22]

2. The 1845 Layout

Chalk A depicts the Road, as laid out in 1845, crossing GWR twice and terminating at Searsville Road. Lay testified that some version of a road existed in or near the vicinity of both GWR and Searsville Road in 1845 when the Road was first laid out. Therefore, Plaintiff contends that the 1845 Layout should have specifically called out “Great Western Road” or “Searsville Road” (a/k/a the “Road to Searsville”). Since the 1845 Layout does not specifically call out either road, Plaintiff contends that the Road cannot be located where it is shown on Chalk A. At the time of the 1845 Layout, neither GWR nor Searsville Road had been laid out as public ways. [Note 23] It appears that such roads may have existed but were not named and may not have been located on the ground as they are today. The fact that the 1845 Layout does not specifically call out GWR and Searsville Road/Road to Searsville by name is not fatal to Lay’s determination of the location of the Road.

Plaintiff also points out that Chalk A depicts the Road, as laid out in 1845, intersecting twice with GWR; however, the 1845 Layout makes no reference of the Road intersecting with any road at any point. It is true that GWR was not laid out by the Selectman until 1855, but Lay testified that GWR had existed in some capacity prior to 1855. [Note 24] Lay, an expert surveyor, was aware that GWR and Searsville Road existed in some manifestation. As noted, supra, though, Searsville Road and GWR were not actually taken, laid out, and/or named when the Road was laid out in 1845. Again, the fact that there is no mention of the Road crossing over any other road or way is not fatal to Lay’s determination of the location of the Road on Chalk A.

3. Registration Cases 34903 and 36728

Plaintiff contends that the location of the Road set forth by Lay conflicts with information found in the Registration Cases (34903 and 36728). The land subject to the Registration Cases lies to the north of GWR. Quirk testified that if the Road exists according to Lay, then the Road would cross over/into the 34903 Property. Indeed, Chalk A depicts the Road crossing into the 34903 Property (which has since been subdivided). This court also observes that there is no mention of the Road anywhere in the Decree in case 34903. The 34903 Plan likewise does not depict the Road traversing through the 34903 Property. The 36728 Property is also located to the north of GWR. The parties have submitted the registration plan in 36728, and that plan does not depict the Road traversing through the 36728 Property. Lay testified, and Chalk A depicts, that the Road does not cross into the 36728 Property. As the 36728 Property and the 34903 Property abut (east/west abutters), it would be impossible for the Road, running north/south at that point, to intersect with both properties. It is clear, though, that the Road, as Lay contends is laid out pursuant to the 1845 Layout, crosses into the 34903 Property.

Plaintiff contends that because the Road is not shown on the 34903 Plan, that is conclusive proof that the Road was not laid in 1845 out according to Lay. Dennisport contends that the title examiner in 34903 failed to research back to the 1845 Layout to determine that the Road travels over the 34903 Property. This court cannot determine the reasons as to why the Road is not depicted on the 34903 Plan. Although no reference to the Road may raise some issues, this is not conclusive. The examiner in 34903 may not have gone back far enough into the record title to determine the layout of the Road. [Note 25] Moreover, the owner of the 34903 Property is not a party to this case and Dennisport does not intend to utilize the Road to travel over the 34903 Property. The lack of any reference to the Road in 34903 merely means that no party has any right over the Road onto the 34903 Property. It does not mean that the Road never existed or was not laid out over the 34903 Property. Finally, nearly every plan and/or sketch depicting “Elkanah Howland’s Road” shows the road only to the south of GWR. It is certainly possible that the 1845 Layout intended for the Road to be to the north and south of GWR but over time the portion of the Road to the north of GWR had been abandoned and/or never used. Based on the foregoing, I find that 34903 and 36728 are not convincing evidence that the Road was not laid out according to Lay’s testimony.

4. Marceline Deed and Subdivision

Plaintiff contends that the Marceline Deed is proof that the Road does not exist according to Lay. The legal description in the Marceline Deed is cited in full, supra. Such legal description posits that the Marceline Property is bounded on the east by “Elkanah Howland’s Road.” This is actually consistent with the Marceline Subdivision Plan, which shows that the Road, together with and running the same course as Miller’s Road in a northerly direction, forms the eastern boundary of the Marceline Property. The Marceline Subdivision Plan also depicts “Elkanah Howland’s Road” in substantially the same location as it is depicted on Chalk A. Based on the foregoing, it appears that the description in the Marceline Deed and the Marceline Subdivision Plan are consistent with Lay’s depiction of the Road on Chalk A.

5. The North/South Road

The 1845 Layout states that the northern/eastern most point of the Road begins at a point on the N/S Road. Plaintiff disputes Lay’s decision to use the 1851 U.S. Coast Survey to locate the N/S Road as the starting point for the Road in the 1845 Layout. While other maps (submitted as agreed exhibits) such as the Walling Map of 1858 (the “Walling Map”) show neither the N/S Road as determined by Lay nor the Road itself, Plaintiff once again provides no specific alternative to Lay’s interpretation. Instead, Plaintiff attempts to cast doubt by references to other roads that might be feasible starting points. [Note 26] Plaintiff further contends that Gages Road was a well known north/sound road in Dennis in 1845 and could possibly be the N/S Road referred to in the 1845 Layout. Plaintiff offers no sketches that would be an alternative to Chalk A with the Road beginning at Gages Way as the N/S Road. Furthermore, the fact that the N/S Road depicted on Chalk A does not appear on the Walling Map is far from fatal to Dennisport’s rendition of the Road. Both parties have submitted more than fifty different maps, plans, sketches, and drawings into evidence. Some of the plans show the Road and some do not. It should also be noted that the Walling Map does not depict Duck Pond Road (which Plaintiff claims is one of the “public ways” called out in the GWR Layout). The simple fact is that not all plans submitted into evidence depict every road in the Town in the vicinity of Locus. Lay credibly testified that he utilized the N/S Road as he did because of the 1851 U.S. Coast Survey. Just because such road does not appear on another map produced by Plaintiff does not mean that Lay was wrong in determining the appropriate starting point of the Road.

6. Town Records:

Plaintiff raises other issues with the Road relating to its status as a public way. The 1976 and 1981 Assessors’ Maps do not depict the Road running from Searsville Road to GWR. Those versions of the Assessors’s Map depict dashed lines beginning at Searsville Road and running along the same course as Miller’s Road. Then, as Miller’s Road bends to the northwest, the dashed lines (indicating the location of the Road) continue in a northerly direction but not all the way to GWR. Although these dashed lines ended prior to intersecting with GWR, it seems to indicate that the Town knew that some road or way existed in the vicinity of where Lay has depicted the Road to be. Moreover, the 2006 Assessors’ Map shows the Road running from Searsville Road all the way to GWR. [Note 27] For whatever reason, the Town has decided to abstain from actively litigating this case and they have put forth no reasoning or justification for the earlier Assessors’ Maps. This court chooses to rely on the most recent version of the Assessors’ Map which shows the Road running all the way to GWR in substantially the same location as depicted on Chalk A and on the 2011 Site Plan. [Note 28]

Plaintiff also points out that the Town’s inventory of roads states that Elkanah Howland’s Road is not a public road. As this is a trial de novo, the records of the Town Assessor are not determinative of the legal issue of whether the Road is a public town road. This court is tasked with making such determination based upon the 1845 Layout and the expert testimony put forth by both parties. As such, the fact that Elkanah Howland’s Road is not included in the Town inventory of roads is not fatal.

7. Courses/Distances:

Plaintiff’s post-trial brief asserts that Lay made a mistake in plotting some of the angles on Chalk A. In its post-trial brief, Plaintiff attempted to include an exhibit showing a competing plan of the courses and distances, but that exhibit was stricken from the record (see discussion, supra). As a result, neither Quirk nor anyone else on behalf of Plaintiff made any attempt to provide an alternative location of the Road. In the absence of a competing survey, in its discretion this Court shall accept Lay’s credible testimony regarding his determination of the appropriate angles, courses, and distances of the Road as shown on Chalk A.

Based on the foregoing, I find that the relevant portion of the Road (between GWR and Searsville Road) is located on the ground as depicted on Chalk A, and provides frontage for Locus.

IV. Standard of Review - Special Permit 2:

In an appeal of a special permit pursuant to G.L. c. 40A, § 17, a court is required to hear the case de novo, make factual findings, and determine the legal validity of the board’s decision based on those findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 489 (1999). A decision to grant a special permit “cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts, supra, at 486, quoting MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). After legal issues are decided, a court must grant deference to the Planning Board. See ACW Realty Mgmt, Inc., 40 Mass. App. Ct. 242 , 246. “[I]t is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling.” Subaru of New England, Inc. v. Bd. of Appeals of Canton, 8 Mass. App. Ct. 483 , 488 (1979). To be upheld, though, a board’s decision must be supported by a “rational view of the facts.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 74-75 (2003). The court shall give substantial deference to the Planning Board’s interpretation of its own regulations. See Berkshire Power Development, Inc.v. Zoning Bd. of Appeals of Agawam, 43 Mass. App. Ct. 828 , 82 (1997) (“thus it is that we give substantial deference to the construction placed on...an ordinance by the agency charged with its administration, i.e., the board of appeals (internal citations omitted)).

V. Validity of Special Permit 2 - Compliance With the By-law:

The last set of issues relates to whether the Project complies with all dimensional provisions within the Municipally Sponsored Affordable Housing section of the By-law (Section 4.9.4.2 et seq.). Plaintiff contends that the Project lacks the necessary frontage; Defendant disputes this point. Next, Plaintiff contends that the Project exceeds the fifteen percent (15%) maximum lot coverage requirement in the By-law. Plaintiff also contends that Hayes did not provide an adequate opinion regarding the Project’s suitability for increased density for the one bedroom per 10,000 square feet requirement in the By-law. Dennisport contends that the Project does not exceed fifteen percent (15%) lot coverage and that Hayes gave a proper opinion regarding the Project’s suitability for increased density.

According to section 4.9.1.2 of the By-law, an affordable housing development is “[a] tract of land of more than 2 ½ acres containing units of residential housing, of which at least 25% are encumbered by affordable housing deed restrictions.” Affordable housing units such as the one proposed by Dennisport are welcomed “to further the goal of encouraging various lot sizes and housing types for persons of various age and income levels in accordance with the Massachusetts General Laws, Chapter 40a, Section 9 which allows municipalities to adopt ‘incentive’ ordinances for the creation of affordable year round housing.” (By-law 4.9.1).

While the Planning Board has discretion to reduce some minimum requirements, including intensity regulations (Section 2.3), off street parking and loading requirements (Section 3.1), and multiple dwellings requirements (Section 4.2), Section 4.9.4.2.1(a) states that there must still be:

a. a maximum height of 35 feet and two stories;

b. a maximum building coverage of 15%;

c. a maximum total site coverage of 50%; and

d. a minimum building separation of twenty feet.

Section 4.9.4.2.1.c of the By-Law gives the Planning Board authority to issue special permits that relax the normal density requirement of 10,000 square feet for each bedroom (4.9.2.2.2). The Planning Board may do so “upon the recommendation of the Dennis Board of Health that the waste water system recommended for the site meets all state and local environmental standards for the protection of public health and water quality.” On September 21, 2011, Dennisport applied for Special Permit 2 to build an affordable housing development that would exceed the 10,000 square feet per bedroom requirement. The Planning Board found that the development plans met requirements listed in 4.9.2.2.1.2 through 4.9.2.2.1.5 and that the planned density increase was acceptable because it had “no material, detrimental effect on the character of the neighborhood or Town.” Plaintiff challenges the Planning Board’s findings. The Planning Board based its authority on section 4.9.2.2.1 of the By-law, and stated that the Board of Health had submitted a letter illustrating that the site could accommodate the thirty-four bedrooms proposed by the developer. Plaintiff does not argue that the Project’s status does not qualify as a Municipally Sponsored Housing Project; Plaintiff’s contentions relate to whether the Project complies with certain density and dimensional requirements set for in the By-law. A. Adequate Frontage:

Section 5 of the By-law defines “lot frontage” as “[c]ontinuous portions of the street line over which automobiles have legal and physical access from the lot.” The section defines “street line” as “a lot line abutting a street” and defines a “street” as “a way which affords the principal means of access as defined in G.L. c. 90, and 41, § 81L.” G.L c. 90 defines “way” as “any public highway, private way laid out under authority of the statute, way dedicated to public use, or way under the control of park commissioners or body having like powers.”

In this case, whether the Project meets the frontage requirements is predicated on whether the Road is a public way and whether it can be considered suitable frontage under the definition of “lot frontage” (supra) in Section 5 of the By-law. I held, supra, that the Road is a public way, thus the only remaining requirement to be met is that the Project’s frontage along the Road be at least fifty feet long (as required by the By-law section 2.3.2, the Intensity of Use Schedule). Although it is unclear the exact distance, it is abundantly clear that the Road travels through Locus, providing such frontage, for far greater than fifty feet.

Based on the foregoing, I find that the Road provides adequate frontage for the Project.

B. Maximum Building Coverage of 15%

Section 4.9.2.4.2 of the By-Law allows the Planning Board to issue special permits relaxing normal density requirements for municipally sponsored housing projects as long as, inter alia, the building coverage on the lot does not exceed 15% of the lot size. Section 5 of the By-Law defines lot area as “[t]he horizontal area of a lot exclusive of any area within a street.” In this case, Dennisport’s engineer calculated that area as 65,798 sq. ft, which means that the maximum building coverage cannot exceed 9,869 square feet.

At trial, McNeill, a principal of Dennisport, testified that the building coverage calculation was 9,824 square feet, a building coverage of 14.9%. McNeill further testified that the calculation included building footprints out to overhangs, but excluded open porches, decks and stairways. The dispute about these numbers stems from Plaintiff claiming that the porches, decks, and stairways should count toward the calculation of building coverage. If the area of the porches, decks, and stairways was added to the calculation, the total building coverage would add up to 10,901 square feet for a total building coverage of 16.6%, a violation of the By-Law.

Section 5 of the By-Law defines a “building” as “[a] structure having a roof or similar temporary or permanent covering which encloses useful space.” Section 5 further defines “structure” as “[a]n assembled combination of materials at a fixed location to give support or shelter, exclusive of boundary or retaining walls, fences, flag poles, self contained heating or ventilating equipment and the like.” Plaintiff seeks to ignore the definition of “building” and “structure” in the By-law and insists that porches, decks, and stairways should be included as part of the building coverage. Plaintiff requests this court to consider stairs and porches as “structures” based on the “commonly understood concept of what a building is.” It is readily apparent, however, that a stairway does not fall within the By-law’s definition of a building or structure. Stairs are means of access and egress to and from a building and are not generally considered to give “support or shelter.” Similarly, uncovered porches and decks do not generally provide support or shelter. Moreover, it appears that the Planning Board did not consider porches, decks, stairs, or storage areas under the stairs to be “buildings” for the purpose of determining the lot coverage/building coverage ratio. The Planning Board agreed with Dennisport’s engineers and architects when the Planning Board determined that building coverage is under 15%. In the absence of clear error, this court will not substitute its own judgment for that of the Planning Board and the court shall defer to the Planning Board’s interpretation of its own regulations. See Berkshire Power Development, Inc., supra, at 832.

Based on the foregoing, I find that the Project meets the maximum building coverage requirement of 15% of the lot.

C. 10,000 Square Feet per Bedroom

Section 4.9.2.4.2.c of the By-law states the maximum density of the tract to be developed may be greater than one bedroom per 10,000 sf of land area “based upon a recommendation” of the Board of Health that the waste water system recommended for the site meets all state and local environmental standards for the protection of public health and water quality. The parties disagree as to whether or not the Board of Health ever made a proper recommendation allowing for such increased density.

i. Hayes’ Authority

Plaintiff first claims that the only communication regarding the adequacy of the proposed waste water system sent to the Planning Board was from Hayes, the Health Director for the Town of Dennis Health Department. Plaintiff argues that Hayes’s letter was not equivalent to a formal recommendation from the Board of Health, i.e. that Hayes did not have authority to make such a recommendation on behalf of the Board of Health. Plaintiff bases this argument upon its reading of G.L. c. 111, section 30, which provides in relevant part:

Boards of health may appoint agents or directors of public health to act for them in cases of emergency or if they cannot conveniently assemble, and any such agent or director shall have all the authority which the board appointing him had; but he shall in each case within two days report his action to the board for its approval, and shall be directly responsible to it and under its direction and control. . . (check citation)

Clearly, there was no emergency requiring Hayes to act for the Board of Health, but the statute is open-ended in allowing him to act for the board if it “cannot conveniently assemble.” As Hayes testified, members of Town Boards are usually volunteers who do not have time to meet and determine the suitability of every single element of a proposed plan. As such, it was within reason that Hayes was acting under the Board of Health’s authority to examine the Project file and draft a memorandum to the Planning Board. Further, Hayes met the statutory requirement of reporting his action within two days to the Board of Health as evidenced by his memorandum to the Planning Board, which was simultaneously cc-ed to the Board of Health.

Based on the foregoing, I find that Hayes had the authority to act on behalf of the Board of Health and make a recommendation to the Planning Board pursuant to section 4.9.2.4.1c of the By-law.

ii. Validity of Recommendation:

While Hayes was within his authority to act for the Board, his testimony at trial indicates that his review and recommendation of the proposed waste water system may not have been fully informed. Hayes admitted at trial that prior to issuing the Hayes Memo he reviewed the 2006 Septic Plan and the 2010 Site Plan, the latter of which proposed a slightly different configuration of the six buildings compared to the layout of such buildings as shown on the 2006 Septic Plan. Dennisport requests this court to liberally interpret the By-law in that the By-law merely requires a recommendation of the Board of Health that the Project would comply with state and local septic requirements. In this regard, Dennisport contends that the Hayes Memo, whether completely informed or not, satisfies the Board of Health recommendation requirement. Plaintiff contends that this court must annul Special Permit 2 because the Hayes Memo did not review the actual septic plan for the reconfigured Project as shown on the 2011 Site Plan.

Hayes testified at trial that in order to determine whether the Project complied with all state and local septic regulations he would have to review a complete septic system layout plan. The only septic plan Hayes reviewed prior to issuing the Hayes Memo was the 2006 Septic Plan because that was the only septic plan that had been prepared relative to the Project. Hayes concluded that the 2006 Septic Plan could adequately accommodate the Project and that the septic plan and wastewater systems “should meet all state and local environmental standards for the protection of public health and water quality.” It is undisputed that Hayes did not have full and complete information, i.e. an updated septic plan based on the 2011 Site Plan. The layout of the Project as shown on the 2006 Site plan was modified, albeit only slightly, as shown on the 2010 Site Plan and the 2011 Site Plan, to reconfigure the location of some of the buildings, parking areas, and certain landscaping. The Hayes Memo concluded by stating, “[t]his recommendation in no way reflects approval of these wastewater treatment systems, which [the Board of Health] will grant only after a more extensive review.”

The parties never submitted an updated septic plan (the 2012 Septic Plan) to this court. Hayes stated that he never examined any plan, prior to his issuing the Hayes Memo, that showed any septic components for the proposed layout of the Project as shown on the 2010 Site Plan and the 2011 Site Plan. Hayes further testified that the 2006 Septic Plan “really does not have any bearing” on whether the waste water system as shown on the 2006 Septic Plan will comply with local and state environmental regulations based on the Project as shown on both the 2010 Site Plan and the 2011 Site Plan. Accordingly, it is clear to this court that the Hayes Memo was not a proper recommendation to the Planning Board regarding whether a waste water system was adequate for the Project as configured on the 2010 Site Plan and the 2011 Site Plan. With no valid recommendation from the Board of Health, I find that the Planning Board exceeded its authority in approving the Project and issuing Special Permit 2 with a density greater than 10,000 square feet per bedroom.

As such, this issue shall be remanded to the Planning Board for a proper recommendation from the Board of Health, if such recommendation is appropriate, that the waste water system for the Project meets all state and local environmental standards for the protection of public health and water quality, in accordance with Section 4.9.2.4.2.c of the By-law. [Note 29] By Friday, January 24, 2014, the Planning Board shall hold a hearing relative to this issue, and the Board of Health should have either made a recommendation in accordance with Section 4.9.2.4.2.c of the By-law, or should have declined to do so. By Friday, February 7, 2014, the Planning Board shall issue an amended decision based on the Board of Health’s recommendation or lack thereof. Once the Planning Board has issued its amended decision, the parties shall submit said decision forthwith to this court and Judgment shall enter accordingly. If the foregoing dates are impractical for the Planning Board, either party may mark up a motion to be heard the last week of January 2014 in accordance with this court’s motion schedule.

Judgment shall enter after all remaining issues have been resolved.