CHARLES S. COX, JR., ARTHUR RICHMOND and CAROL RICHMOND vs. CONSIDINE DEVELOPMENT CO., LLC, VILLAGE GATE REALTY TRUST, and PLANNING BOARD OF THE TOWN OF CANTON; KRISTEN MIRLIANI, GARY E. VINCIGUERRA, CHRISTOPHER J. CONNOLLY, GEORGE J. JENKINS, and JEREMY J. COMEAU, as they are members of the PLANNING BOARD OF THE TOWN OF CANTON, and THE CITY OF CANTON

Plaintiffs (prior to an order of remand, discussed, infra) Considine Development Co., LLC (the “LLC”) and Village Gate Realty Trust (the “Trust”) (together, “Considine”) filed their unverified Complaint (11 MISC 449127) on June 9, 2011, pursuant to G. L. c. 41, § 81BB and G. L. c. 40A, § 17, appealing two decisions of Defendant Planning Board of the Town of Canton (the “Planning Board”) which denied Considine’s application for approval of a twenty-eight lot Definitive Flexible Development Subdivision Plan (the “Flexible Subdivision Plan”), dated May 19, 2010, revised November 8, 2011, entitled Turtle Creek (the “Subdivision”) and Considine’s application for a Flexible Development Special Permit (the “Special Permit”). [Note 1] The Planning Board and Defendant Town of Canton (the “Town,” together, “Municipals,”) filed an Answer on July 7, 2011. A case management conference was held on August 17, 2011, and this court, at the request of the parties, issued an Order of Remand to the Planning Board on August 24, 2011. A Revised Order of Remand was issued on September 7, 2011.

On January 23, 2012, Plaintiffs Charles S. Cox, Jr. (“Cox”), Arthur Richmond and Carol Richmond (the “Richmonds,” and together with Cox, the “Abutters”) filed their unverified Complaint (12 MISC 458355), pursuant to G. L. c. 41, § 81BB and G. L. c. 40A, § 17, appealing two decisions of the Planning Board which approved the Flexible Subdivision Plan and the Special Permit. Considine filed its Answer on February 10, 2012. The Municipals (and together with Considine, “Defendants”) filed their Answer on February 13, 2012. A case management conference was held on February 14, 2012. Frederick Martin filed a Motion to Intervene on February 24, 2012, which was denied by Order dated March 6, 2012.

The Abutters filed their Motion for Summary Judgment on August 27, 2012, together with supporting memorandum, Statement of Material Facts, and Affidavits of Charles S. Cox, Jr., Arthur Richmond and Carol Richmond, David J. Buczkowski (“Buczkowski”), and Doug Harris (“Harris”). On the same day, Considine filed its Motion for Summary Judgment, together with supporting memorandum and Undisputed Material Facts, and Affidavit of Counsel for Considine, Robert A. DeLello. Considine filed its Opposition to the Abutters’ Motion for Summary Judgment on September 28, 2012, together with Concise Statement of Additional Material Facts, and Motion to Strike Affidavits of Charles S. Cox, Jr., Arthur Richmond and Carol Richmond, David J. Buczkowski, and Doug Harris. On October 1, 2012, the Municipals filed their memorandum in support of Considine’s Motion for Summary Judgment. On the same day the Abutters filed their Reply. On October 2, 2012, the Municipals filed their Opposition and Statement of Undisputed Facts, and Motion to Strike portions of Affidavits of Charles S. Cox, Jr., Arthur Richmond and Carol Richmond, and Doug Harris. A hearing on all of the motions was held on October 15, 2012, and the matter was taken under advisement.

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

1. Considine [Note 2] is the record owner of property located in Canton, MA (“Locus”) containing sixty-four acres located off Wayside Lane (a public way) and Village Gate Road (a private way). [Note 3] Locus is located in a Single Resident AA zoning district. Considine took title to separate portions of Locus through various deeds. [Note 4] Although Locus contains approximately sixty-four acres of land, the Flexible Subdivision Plan excludes Parcel A, which contains 5.206 acres, and Parcel C, which contain 15.445 acres, both of which are owned by Considine. [Note 5] The Flexible Subdivision Plan therefore contains a total parcel area of 43.369 acres, all of which is owned by the LLC.

2. By deed dated October 5, 1965 (the “Turley Deed”), and recorded with the Registry at Book 4297, Page 700, Joseph and Frances Turley (the “Turleys”) took title to two separately described parcels of land. The first parcel contained approximately seventeen acres and the second parcel, also known as the Indian Rock Lot, contained approximately twelve acres. A portion of this land is included within the Subdivision. [Note 6]

3. By deed dated April 8, 1969 (the “Turley-Gentile Deed”), the Turleys conveyed a parcel of land shown as Parcel 1 on Plan No. 264 of 1969 in Plan Book 225 (recorded with the Registry) (“Plan 264”) to Louis E. Gentile (“Gentile”). The parcel conveyed to Gentile by this deed was comprised of approximately 14.591 acres, as shown on Plan 264. The Turley-Gentile Deed states that the land being conveyed therein is “the same premises conveyed to [the Turleys] by [the Turley Deed.]” It is clear, however, that the Turley-Gentile Deed conveyed only a portion of the property conveyed to the Turleys via the Turley Deed. Plan 264 depicts that Parcel 1 abuts land that the Turleys continued to own, to the west of Parcel 1, subsequent to the Turley-Gentile Deed (the “Turley Parcel”).

4. Plaintiffs and Defendants agree that the Turley Parcel is comprised of approximately 22.4 acres. [Note 7] Plaintiffs’ Exhibit 82 (“Exhibit 82”) superimposes the Turley Parcel over the Flexible Subdivision Plan. [Note 8] Exhibit 82 indicates that the Turley Parcel, as shown on the Flexible Subdivision Plan, is comprised of the majority of Road B [Note 9]; the majority of Road E; a portion of road C; a portion of Road A; all of Parcel B; all of Lots 26, 23, 25, 20, and 19; and a portion of Lots 24, 28, 1, 22, 21, 18, 10, 11. The Turley Parcel is also shown on “Plan of Land in Canton, Mass” that is recorded with the Registry at Book 524, Plan 34 (“Plan 34”).

5. By deed dated April 9, 1969, and recorded with the Registry at Book 4584, Page 720, Gentile granted certain easement rights to the Turleys (the “Easement”) as follows:

The right to use in common with others entitled thereto all of the streets and ways as shown on a plan entitled “Village Gate, a Subdivision in Canton, Mass., Owner and Developer, Louis E. Gentile” [the “Gentile Subdivision”] dated August 8, 1967 by Schofield Brothers, Registered Land Surveyors and Civil Engineers (the “1967 Plan”), to be recorded herewith. Said streets and ways to be used for all purposes for which public ways are commonly used in the Town of Canton. Said right to be appurtenant to and run with all the remaining land of the Grantees which lies to the west of and abuts the land of the Grantor herein which has been acquired by three deeds to be recorded herewith all of which land is shown on said plan.

6. On April 10, 1969, Gentile recorded the 1967 Plan with the Registry at Plan Book 225, Plan 258. The 1967 Plan depicts Village Gate Road and Wayside Lane as access to the Gentile Subdivision shown on the 1967 Plan and also depicts a portion of the Turley Parcel to the west of the Gentile Subdivision and the terminus of Village Gate Road (as shown on the 1967 Plan). The Easement granted rights to the Turleys over Village Gate Road for the benefit of the Turley Parcel.

7. Cox is the record owner of property located at 20 Village Gate Road, Canton, MA (“Cox Property”) pursuant to a deed recorded with the Registry at Book 12471, Page 418. Cox Property directly abuts Locus.

8. The Richmonds are the record owners of property located at 21 Village Gate Road, Canton, MA (“Richmond Property”) pursuant to a deed recorded with the Registry at Book 4896, Page 545. Richmond Property directly abuts Locus.

9. On November 16, 2005, Considine filed a preliminary subdivision plan for the Turtle Creek Subdivision with the Planning Board. A twenty-seven lot definitive plan was submitted on March 10, 2006. An amended twenty-eight lot definitive subdivision plan (the “June 2006 Definitive Plan”) was filed on June 22, 2006. On September 20, 2006, the Planning Board approved the June 2006 Definitive Plan, and such approval was filed with the Canton Town Clerk on October 5, 2006.

10. The Abutters appealed the Planning Board’s approval of the June 2006 Definitive Plan on October 24, 2006, with the Norfolk Superior Court (the “Superior Court Action”), alleging that the Planning Board exceeded its authority in approving the plan, specifically with respect to access from Village Gate Road. On July 14, 2008, the Norfolk Superior Court denied the Abutters motion for summary judgment on the grounds that the Abutters did not timely appeal the approval of the June 2006 Definitive Plan (the “Superior Court Decision”). [Note 10] On August 1, 2008, the Abutters appealed the Superior Court Decision to the Massachusetts Appeals Court. On June 11, 2009, the Appeals Court affirmed the Superior Court Decision on the basis that the Abutters’ appeal was untimely (the “Appeals Court Decision”). [Note 11]

11. On April 5, 2010, the LLC and Mark A. Goodman (“Goodman”) entered into an Exchange Agreement (the “Exchange Agreement”). The Exchange Agreement was a land swap whereby the LLC was to take title to two small parcels of land shown as Parcel B and Parcel D on a plan titled “Lot Line Modification Plan, 22 Wayside Lane & Land Off of Wayside Lane, Canton MA” (the “Exchange Plan”). [Note 12] Parcel B and Parcel D are land included within the Flexible Subdivision Plan. The Exchange Agreement stated, inter alia:

Unless otherwise agreed in writing, closing will occur within 5 business days of the Planning Board’s release of the first lots in the subdivision. At that time [Considine] and GOODMAN will execute all documents required to complete this Agreement...[Considine’s] performance is contingent upon obtaining conservation commission and planning board approval of a road layout that in fact utilizes the land that is the subject of this agreement.

12. In May 2010, Considine amended the June 2006 Definitive Plan and submitted a preliminary version of the Flexible Subdivision Plan and an application for the Special Permit to the Planning Board. [Note 13] An earlier version of the Flexible Subdivision Plan is titled “Flexible Residential Development Index Plan Definitive Subdivision Plan Turtle Creek Subdivision Canton, MA” dated May 19, 2010, and prepared by Civil Environmental Consultants, LLC. By decision dated May 25, 2011, the Planning Board denied (by vote of 2-2) the two applications (the “Denials”). At that time, the Planning Board determined that the layout of the Subdivision required access from Village Gate Road. Two members of the Planning Board determined that the applicant could not prove it had adequate access to the Subdivision from Village Gate Road. Even though the Planning Board issued the Denials, it nonetheless voted 4-0 to waive the requirement that a dead-end road be no longer than 1000 feet. The Denials measured the length of the dead-end road from the intersection of Road B (the extension of Village Gate Road) and Road A (the extension of Wayside Lane) to the cul-de-sac at the end of Road C to be 1,176 feet. [Note 14]

13. Subsequent to the Order of Remand issued by this court on September 7, 2011 (subsequent to the Denials and related appeal to this court), at a hearing on December 7, 2011, the Planning Board voted (by 4-0 vote) to approve a final version of the Flexible Subdivision Plan (the “Subdivision Decision”) dated November 8, 2011, entitled “Flexible Subdivision Land Court Remand Turtle Creek Village Gate Road, Canton, MA” [Note 15] and the Special Permit (the “Special Permit Decision”, and together, the “Planning Board Approvals”), and the Planning Board Approvals were filed with the Canton Town Clerk on January 5, 2012. The Subdivision Decision contained several waivers, two of which (the “Waivers”) state as follows:

f. (“Waiver f”) Waiver of strict compliance with Sections 3.4.8.2 and 3.4.8.3 of the Rules & Regulations to allow for a road length of 4,588 feet if measured from the intersection of Wayside Lane with York Street to the cul-de-sac at the end of Road “C” which exceeds the maximum allowable length of 1000 feet. Granted 4-0. The Planning Board finds that there is a public interest in said waiver because proposed emergency access at the terminus of Village Gate Road limits the actual road length, the gated emergency access is temporary in nature and because revisions to the roadway layout proposed would increase pavement and runoff . . .

n. (“Waiver n”) Waiver of strict compliance with Section 3.4.9.1 of the Rules & Regulations which require a cul-de-sac at the terminus of all dead end streets. This waiver requests the elimination of the requirement for a cul-de-sac created by the emergency access gate at the terminus of Road B and Village Gate Road. Granted 4-0. The Planning Board finds that there is a public interest in said waiver because the applicant’s plans allow for a vehicle to turn around in the vicinity of the “terminus” indicated, that as modified Village Gate Road allows access for emergency vehicles, a cul-de-sac would create significant disruption to the historic site known as “Balancing Rock” and that the gating of Village Gate Road will not be a permanent condition. [Note 16]

14. The Subdivision Decision and the Special Permit Decision were subject to many conditions of approval. Several of the conditions of the Subdivision Decision and the Special Permit Decision (the “Conditions”) relate to the status of Village Gate Road: [Note 17]

15. In the findings in both the Special Permit Decision and the Subdivision Decision, the Planning Board determined:

Upon remand, the applicant proposed to upgrade Village Gate Road to a standard acceptable for submission by the appropriate authorities to the Town Meeting for official acceptance as a public way and that access to the subdivision over Village Gate Road would be limited to emergency vehicles and first responders only by the installation of an Emergency Access Gate at the end of Village Gate Road, during the time that the emergency access gate is located as proposed. The board notes that it has been provided with information and analysis that allows it to conclude that the applicant has established rights to the property over Village Gate Road by providing evidence of: (1) an express grant of easement over Village Gate Road benefitting at least a portion of the property; and, (2) prescriptive rights of the public of access over Village Gate Road by use by the public and maintenance by the Town for over twenty year[s];

16. The Bylaw requires that 30% of a flexible subdivision contain “Common Open Land.” [Note 18] “Land considered by the Planning Board as marginal or unsuitable for building, such as inaccessible wetland and open water, steep slopes, highly erosion or poorly drained areas, areas of very shallow bedrock, or of very high water table shall be included in the permanent open space; but no more than fifty (50%) of the required open land shall consist of such marginal or unbuildable areas.” Bylaw, §8.6.9. [Note 19]

17. Total open space within the Subdivision, as calculated and indicated on the Flexible Subdivision Plan, is 16.113 acres, which comprises 37.14% of the Subdivision. Total “usable upland open space”, as noted on the Flexible Subdivision Plan, excludes steep slopes, open stormwater, and a 30 foot buffer zone to all wetlands. [Note 20] The Subdivision contains 6.631 acres of usable upland open space, which comprises 15.29% of all land within the Subdivision. The 6.631 acres of total usable upland open space is 41.153% of the total open space of 16.113 acres. Therefore, 9.482 acres of total open space is not characterized as usable open space. This acreage constitutes 58.847% of total open space and 21.864% of all land within the Subdivision.

18. The Planning Board determined in one of its finding in the Special Permit Decision that:

The totality of acres designated on the [Flexible Development Subdivision Plan] indicates that there will be 16.113 acres of area that the applicant has designated as “open space” which represents 37.14% of the total “Parcel B” project area. Upon exclusion of marginal and unbuildable lands (which excludes land encumbered by steep slopes, open stormwater management impoundment areas and the 30 foot no touch buffer zone to wetlands), the remaining open space (“usable open land” is determined to be 6.631 acres. The 6.631 acres of “usable open space” constitutes 15.29% of the total “Parcel B” project area, which exceeds the minimum required area of “useable open space” for the SRAA District which is 15% of the total “Project B” project area (i.e. one-half of the minimum required 30% open space for the project); thus conforming to the requirements of the [Bylaw]”

19. Balancing Rock, a/k/a and hereinafter referred to as “Indian Rock,” is an historical site that is located within the Subdivision (and the Turley Parcel) adjacent to Village Gate Road. Defendants submitted no evidence as to the use of Village Gate Road to access Indian Rock. The Abutters’ affidavits indicate that school children and Native Americans have used Village Gate Road to visit Indian Rock for more than twenty years with the permission of the Abutters. Indian Rock is included within Parcel F, as shown on the Flexible Subdivision Plan.

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Considine and the Municipals move to strike the Affidavits of Charles S. Cox, Jr., Arthur Richmond and Carol Richmond, David J. Buczkowski, and Doug Harris. [Note 21] Next, as a threshold matter, Considine argues that the Abutters do not have standing to challenge the Planning Board Approvals. The Abutters claim that they have standing. Considine and the Municipals further argue that this action is barred by res judicata as the Abutters had their day in court and lost, pursuant to the Superior Court Decision and subsequent appeal. The Abutters state that the Superior Court Decision did not address many of the issues raised in the case at bar.

As to the merits, the Abutters state that the Planning Board had no authority to determine whether Considine has rights in Village Gate Road. The Abutters then challenge the validity of the Planning Board’s finding relating to (1) access over Village Gate Road, (2) various other violations of the Bylaw and the requirements of the Canton Subdivision Rules and Regulations (the “Rules and Regs”). Considine and the Municipals argue that the Planning Board Approvals are valid. I shall examine each issue in turn.

I. Motion to Strike:

Considine moves to strike the Affidavits of Cox, the Richmonds, Buczkowski, and Harris. With respect to the Affidavits of Cox and the Richmonds, who testified primarily as to use of Village Gate Road, Considine moves to strike on the primary basis that the statements in the respective Affidavits contradict sworn statements in depositions. This issue goes to the credibility of both Cox and the Richmonds, and to the extent their Affidavit or deposition testimony is relevant, this court shall make credibility determinations taking into consideration their alleged inconsistent statements. To the extent that any portion of these Affidavits purport to make legal conclusions, this court shall strike such conclusions. [Note 22]

Considine moves to strike the Affidavit of Buczkowski, who testified as to Considine’s rights to use Village Gate Road, on grounds that his Affidavit is premised on facts that are not true. The Affidavit and a report of Attorney Jeffrey L. Ontell (the “Ontell Report”), on which the Buczkowski Affidavit is based in part, state that Wayside Lane and Village Gate Road are private ways, which is in fact not true (Wayside Lane is public). Buczkowski also states that access via Village Gate Road will be for emergency access only, which issue is discussed, infra. It appears that the classification of Wayside Lane was made in error. This court will consider this fact when determining the credibility of Buczkowski and the Ontell Report, which was separately submitted into evidence.

Considine objects to Harris’ Affidavit, who testified as to the negative effects the Subdivision will cause to the historical significance of Indian Rock, on the grounds that there is no representation that Harris’ statements are made upon personal knowledge and that there are no facts in the record that demonstrate Harris is competent to testify to such matters in his Affidavit. Harris testified that he is a Deputy Tribal Historic Preservation Officer with the Narragansett Indian Tribal Historical Preservation Office (NITHPO) and that he is trained in culture and history of the Narragansett Indian Tribe in New England. Despite attempting to testify as such, Harris has not been qualified as an expert in his Affidavit. Moreover, a majority of his testimony is speculative, e.g. Harris states that “with respect and protection [Indian Rock] may continue for thousands of years to come.” There is absolutely no basis for this statement. The majority of Harris’ testimony continues in a similar regard, is speculative, and there is little or no evidence of Harris’ qualification. With no qualifications whatsoever, Harris’ Affidavit also contains statements that are within the purview of an engineer, not a Native American historian.

Based on the foregoing, the Motion to Strike the Affidavits of Cox, the Richmonds, and Buczkowski is DENIED and the Motion to Strike the Affidavit of Harris is ALLOWED.

II. Standing.

“Only a ‘person aggrieved’ may challenge a decision of a zoning board of appeals.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); G. L. c. 40A, § 17. A plaintiff is presumed to be a “person aggrieved” if it is a “party in interest” pursuant to G. L. c. 40A, § 11. [Note 23] Marotta v. Bd. of Appeals of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). “[I]ndividual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93 (1989). “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”). To assert a plausible claim, a “plaintiff must put forth credible evidence to substantiate his allegations.” Marashlian, 421 Mass. at 721. “Credible evidence” consists of

both a quantitative and a qualitative component . . . 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, 63 Mass. App. Ct. at 441.

The Abutters directly abut Locus and as a result have presumed standing. Furthermore,

the Abutters own property abutting Village Gate Road, a private road. Therefore, pursuant to G.L c. 183, § 5 (the “Derelict Fee Statute”), [Note 24] the Abutters each own to the middle line of Village Gate Road as the road abuts Cox Property and Richmond Property, respectively. To support their particularized claim of aggrievement, the Abutters argue that the Subdivision will cause increased traffic on Village Gate Road.

Considine and the Municipals have not put forth any evidence to rebut the Abutters’ presumed standing with respect to their alleged harm of increased traffic. Moreover, Considine and the Municipals do not argue that the Abutters lack standing to challenge the Planning Board Approvals as a whole. The Municipals argue, however, that the Abutters have no standing to assert claims relative to Indian Rock. As part of its argument on the merits, the Abutters allege the Planning Board Approvals failed to consider the effects of the Flexible Subdivision Plan on Indian Rock, in contravention of the Bylaw and the Town of Canton Master Plan. The Bylaw and the Town of Canton Master Plan (the “Master Plan”) encourage the preservation of “historical and archeological resources” and preservation of Native American Historic and Cultural Resources to “preserve its history for conservation as well as education purposes.” The Abutters allege the Planning Board Approvals did not consider these concerns. The Municipals argue that the Bylaw and the Master Plan include such provisions relating to preserving Native American history within the Town for the benefit of the townspeople as a whole, not for the Abutters individually. Any impact on Indian Rock caused by the Subdivision may be detrimental to the Town, but according to Considine and the Municipals, the Abutters cannot show that such detriment is specific and particularized to them.

Notwithstanding the foregoing, however, the Abutters have established standing to challenge the Planning Board Approvals based on their presumption of standing and their allegation of increased traffic on Village Gate Road, which has not been rebutted. As such, the Abutters have established their standing to challenge the Planning Board Approvals. In this regard, the Abutters’ challenge is not limited to traffic concerns but can encompass any issues relating to the Planning Board Approvals. Based on the foregoing, I find that the Abutters have standing to challenge all aspects of the Planning Board Approvals.

III. Res Judicata

Defendants argue that the issue of access to the Subdivision via Village Gate Road has been litigated in the Superior Court Action, and as a result of the Superior Court Decision and the Appeals Court Decision this action is barred. The Abutters argue that the merits of the Planning Board Approvals, including the access issues, were never addressed and therefore res judicata does not apply. The Abutters also note that the Flexible Subdivision Plan involves interpretation of various provisions of the Bylaw that were not at issue in the Superior Court Action. As such, according to the Abutters, there is material in the Complaint in the case at bar that was not before the court in the Superior Court Action.

The term 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). “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. Considine argues that summary judgment should be granted in the case at bar on the basis of claim preclusion. The Municipals argue both claim preclusion and issue preclusion with respect to access via Village Gate Road. The Abutters defend against both issue and claim preclusion. It is undisputed that the parties to the case at bar and the Superior Court Action are the same.

A. Claim Preclusion:

A successful assertion of claim preclusion requires three elements be found: “(1) the identity or 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.” DeLuz v. Dept. of Correct., 434 Mass. 40 , 45 (2001), quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933). Defendants argue that the Abutters’ alleged harms are the same in the case at bar and in the Superior Court Action. The thrust of the Abutters’ complaint in both actions, according to Defendants, is the issue of adequate access to the Subdivision via Village Gate Road. To the contrary, the Abutters argue that there are several differences between the actual claims in the case at bar compared to the Superior Court Action. This court agrees with the Abutters in this regard. For instance, in the case at bar, the Abutters appeal the issuance of the (1) the Subdivision Decision and (2) the Special Permit Decision. The Superior Court Action related only to an appeal of a subdivision approval and did not involve an appeal of any special permit pursuant to G.L. c. 40A, § 17. Moreover, Section 8.6.9 of the Bylaw, under the flexible development scheme, contains a “Common Open Land” requirement. In the case at bar, the Abutters raise the issue of whether the Planning Board Approvals are consistent with section 8.6.9 of the Bylaw. This was not an issue briefed or raised in the Superior Court Action because the subdivision approval in that case was not subject to section 8 of the Bylaw relating to the flexible development scheme. Morever, the final judgment in the Superior Court Action was not on the merits of the Complaint but was based exclusively on a technical, procedural issue. Accordingly, I find that the issue of access to the Subdivision via Village Gate Road is not barred by the doctrine of claim preclusion.

B. Issue Preclusion:

Before precluding a party from relitigating 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. “Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment.” Id at 134-135.

Defendants argue that the issue of access via Village Gate Road should be barred by the doctrine of issue preclusion. As stated, supra, the parties to both actions are the same. Next, Defendants must prove that the access issue is identical in both cases and that this issue was essential to the Judgment in the Superior Court Action. Defendants must also show that there was a final judgment on the merits.

The summary judgment record in the case at bar includes the Abutters’ appeals brief relating to the Superior Court Action. The Abutters’ brief argues that the Superior Court did not address the issue of Considine’s right to use Village Gate Road as access to the Subdivision. The Abutters raise the same argument in the case at bar relating to the issue of access to the Subdivision. In both the Superior Court Action and the case at bar, the Abutters claim that Considine has no right to access the Subdivision via an extension of Village Gate Road. Accordingly, the issue of access via Village Gate Road is identical in the case at bar and in the Superior Court Action.

Although the issue may be identical, it appears that the issue of access was not essential to the final judgment in the Superior Court Action. Such inquiry is determined by looking at “the record and determining to see what was actually litigated.” Kobrin, supra, at 843. Issue preclusion includes “findings not strictly essential to final judgment”; however, they must be the “product of full litigation and careful decision.” Jarosz v. Palmer, 436 Mass. 526 , 529 (2002).

The Superior Court Decision, upheld by the Appeals Court Decision, exclusively addressed the issues of (1) timeliness of an appeal to the Superior Court and (2) a zoning freeze. As such, these two issues were the only issues essential to the judgment in the Superior Court Action. Neither the Superior Court nor the Appeals Court gave even cursory attention to the issue of access via Village Gate Road. The issue of access therefore was wholly irrelevant to the findings and the judgment entered by the Superior Court and affirmed by the Appeals Court. As such, the issue of access was not essential to the Superior Court Action. Furthermore, there was no final judgment on the merits in the Superior Court Action and subsequent appeal. Accordingly, I find that the issue of access to the Subdivision via Village Gate Road is not barred by the doctrine of issue preclusion.

As a result of the foregoing, I find that res judicata does not apply to the issue of access to the Subdivision via Village Gate Road.

IV. Validity of the Planning Board Approvals

A. Subdivision Decision

i. Standard of Review

“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 (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, the Board’s decision will not be sustained where it has acted outside of its authority under the subdivision control law.” Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 21 (1977).

ii. Common ownership of Locus.

G. L. c. 41, § 81L provides that an applicant under the Subdivision Control Law must be “an owner or his agent or representative or his assigns.” It appears that the Abutters take issue with the Exchange Agreement, i.e. a land swap between Considine and Goodman that contemplates the purchase by Considine of certain land owned by Goodman which was to be included within the Subdivision. Considine was obliged to purchase the land subject to the Exchange Agreement unless it did not obtain conservation commission and Planning Board approval of the Subdivision road layout. The Subdivision Decision constitutes approval of the Subdivision road layout. The court lacks certain information, however, with respect to the Exchange Agreement. First, the parties have not submitted the Exchange Plan, thus this court cannot determine the specific portions of the Subdivision that are partially comprised of the land subject to the Exchange Agreement. Second, there is no information in the record relative to Considine obtaining conservation commission approval, a condition to the closing of the Exchange Agreement. As such, this court cannot make a determination as to whether Considine owns all of the land within the Subdivision. This issue is remanded to the Planning Board for further action consistent with this decision.

iii. Access from Village Gate Road

The most contested issue in this case is Considine’s right to use Village Gate Road as access to the Subdivision, and whether such access is for general or emergency use. [Note 25] The record indicates that access through Village Gate Road was a concern of the Planning Board in 2006 and remained a concern up until the time the Planning Board issued the Planning Board Approvals. The Abutters first argue that the Planning Board lacked authority to consider the issue of access to the Subdivision via Village Gate Road. The Abutters then argue that even if the Planning Board had the authority to determine whether Considine has the right to use Village Gate Road to access the Subdivision, that determination was legally untenable. Defendants contend that the Planning Board had the authority to consider the issue of access to the Subdivision. Defendants then argue that Considine had access to the Subdivision via Village Gate Road pursuant to (1) an express easement (the Easement) or (2) public prescriptive rights. Defendants state that even if they don’t have such easements, the Planning Board did not err because Village Gate Road will be used only as emergency access to the Subdivision. I shall address each of these issues in turn.

1. Planning Board’s Authority to Consider Access:

The Abutters argue that the Planning Board lacked authority to inquire into the adequacy of Considine’s access to the Subdivision. The Abutters state that the Rules and Regs and G.L. c. 41K, et seq. provide no authority to the Planning Board to inquire into the adequacy of access to the Subdivision. To wit, the Abutters argue that only a court of competent jurisdiction can adjudicate the relative rights of the parties and the public in Village Gate Road. Considine and the Municipals allege that the Planning Board had the authority to consider the rights of Considine and the public in Village Gate Road.

“The general purposes clause in G.L. c. 41, § 81M, provides authority for the boards, and the reviewing court, to consider [an applicant’s] legal right to the access road outside the subdivision, even absent express regulation.” Parker v. Black Brook Realty Corporation, 61 Mass. App. Ct. 308 , 309 (2004), citing Beale v. Planning Bd. of Rockland, 423 Mass. 690 , 694-697 (1996). G.L. c. 41, § 81M “expressly admonishes planning boards to exercise their powers under the Subdivision Control Law ‘with due regard for the provision of adequate access to all of the lots in a subdivision...’” Id; see also North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432 (1981) (Superior Court judge properly considered adequacy of access to be a legitimate basis for planning board’s disapproval of subdivision).

In Parker, supra, the Appeals Court faced a somewhat similar situation to the case at bar. In that case, the planning board did not consider the applicant’s right to access the subdivision, determining that “this is a legal issue that will not be determined by the board.” [Note 26] The Land Court, and then the Appeals Court, determined that even absent express provision in a planning board’s rules and regs, the board should nonetheless consider the applicant’s legal right of access to the subdivision. Parker, supra, at 309. The court in Parker further noted that “[o]wnership of access rights on which the proposed subdivision depends is no less consequential [than ownership of the subdivided land.] Id. at 311. [Note 27]

As stated in both Parker and Lundquist (see FN 27), the issue of access to a subdivision goes to the heart of whether an applicant can develop and subdivide a tract of land. If the applicant has no right to access a subdivision site, then it would be an exercise in futility for a planning board to further consider the merits of the subdivision application. Moreover, pursuant to the Rules and Regs (and as argued by the Abutters), a subdivision applicant must demonstrate ownership or some degree of site control over all of the land to be subdivided. It should therefore come as no surprise to an applicant that it must also prove ownership or legal rights to access the subdivision in the first instance. Based on the foregoing, I find that the Planning Board had the authority to consider whether Considine has the right to access the Subdivision via Village Gate Road. [Note 28] The validity of that consideration shall be discussed, infra.

2. Rights in Village Gate Road Via Express Grant of Easement:

The Planning Board approved the Flexible Subdivision Plan, relying in part on the finding in the Subdivision Decision in which the Planning Board determined and was allowed to “conclude that the applicant has established rights over Village Gate Road by providing evidence of: (1) an express grant of easement over Village Gate Road benefitting at least a portion of the property...” Furthermore, the Subdivision Decision contained waivers that rely on Considine’s right to use and improve Village Gate Road for the benefit of all lots in the Subdivision. In support of these rights, Defendants maintain that Considine had an express easement over Village Gate Road to access the Subdivision. The Abutters argue that the Easement was for the benefit of the Turley Parcel only. Therefore, according to the Abutters, only some of the twenty-eight lots in the Subdivision have access via Village Gate Road. The Abutters state that access to any land via Village Gate Road, other than the Turley Parcel, overburdens and overloads the Easement. [Note 29] The Flexible Subdivision Plan shows that Village Gate Road (as extended into the Subdivision) will connect with Wayside Lane (as extended into the Subdivision) and be used to access all lots in the Subdivision. Accordingly, this court must determine whether the approval of the Flexible Subdivision Plan relying on access to all lots within the Subdivision via Village Gate Road, pursuant to the Easement, was in excess of the Planning Board’s authority.

“After-acquired property can benefit from an easement such as this one only if the easement is an easement in gross, a personal interest in or right to use land of another, or the owners of the after-acquired property receives the consent of the owner of the servient estate.” McLaughlin v. Bd. of Selectmen of Amherst, 422 Mass. 359 , 364 (1996). “A right of way appurtenant to the land conveyed cannot be used by the owner of the dominant estate to pass to or from other land adjacent to or beyond that to which the easement is appurtenant.” Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 678-679 (1965). An easement is overburdened when its use is unconnected to the dominant estate. Brassard v. Flynn, 352 Mass. 185 , 189-190 (1976).

The Easement was granted in favor of the Turleys “to be appurtenant to and run with all remaining land of [the Turleys]...” At the time the Easement was created, the record indicates that the Turleys’ interest in land surrounding the Subdivision was limited to the Turley Parcel, which now comprises only a portion of the Subdivision. The Easement is appurtenant to only the Turley Parcel and is not an easement in gross. The Abutters’ main complaint relative to the Easement is that Considine is attempting to use the Easement to access all land within the Subdivision but the Easement is only appurtenant to the Turley Parcel. This attempt to “overload” the easement with after acquired property goes well beyond Considine’s express, appurtenant right to use Village Gate Road to access the Turley Parcel. Without the consent of the servient estate holder, i.e. the Abutters, Considine cannot use Village Gate Road to access all of the land that comprises the Subdivision.

Defendants argue that the issue of overburdening the Easement requires an analysis of reasonable use of the Easement, and that such inquiry requires further fact finding by this court and is not an issue that is ripe for summary judgment. The Abutters complain of an intensified use and increased scope of the Easement. The factual inquiry into the reasonableness of the increase in use of the Easement would only be relevant if Considine had the right to access Village Gate Road for the benefit of Locus in its entirety. This is not the case because the Easement gives Considine the right over Village Gate Road for the benefit of only the Turley Parcel. As a matter of law, the addition of after acquired property to the dominant estate (the Turley Parcel) overloads the Easement.

It is true that the Planning Board only determined that the express grant of rights was for the benefit of “at least a portion of the property.” It is clear, though, that Defendants intend to extend Village Gate Road to connect with the extension of Wayside Lane, and together those roads will be used to access all lots within the Subdivision. [Note 30] Therefore, even though the determination of the Planning Board may be correct (regarding access to a portion of the land), the Flexible Subdivision Plan that was approved by the Planning Board does not limit the use of Village Gate Road as access to only the Turley Parcel. In this regard, I find that access to all lots via Village Gate Road (as shown on the Flexible Subdivision Plan) pursuant to the Easement is based on legally untenable grounds and such access exceeded the authority of the Planning Board.

3. Public Prescriptive Rights:

The Abutters argue that the public has not established prescriptive rights in Village Gate Road, and even if they had established prescriptive rights, such rights were only to access Indian Rock and would be overburdened by the proposed use of Village Gate Road to access the Subdivision. Defendants are satisfied that the public has established prescriptive rights over Village Gate Road and they contend that the Planning Board’s conclusion in this regard was neither clearly erroneous nor outside of the scope of the Planning Board’s authority.

An existing way acquires status as a public way by one of three possible means: (1) a laying out by public authority in accordance with G. L. c. 82, § 132; (2) prescriptive use, or (3) a dedication by the owner to public use prior to 1846, coupled with acceptance by the public. [Note 31] McLaughlin v. Town of Marblehead, 68 Mass. App. Ct. 490 , 495 (2007). “It is well settled that the creation of a public way by adverse use depends on a showing of actual public use, general, uninterrupted, continued for the [twenty year] prescriptive period.” Fenn v. Middleborough, 7 Mass. App. Ct. 80 , 84 (1979). Where, as here, the existence of a public way is in dispute, the party asserting the fact bears the burden of proof. Witteveld v. Haverhill, 12 Mass. App. Ct. 876 , 877 (1981). “To establish [adverse and continuous use by the public for twenty or more years], the further fact must be proved, or admitted, that the general public used the way as a public right; and that [the public] did must be proved by facts which distinguish the use relied on from a rightful use by those who have permissive right to travel over the private way.” Boxborough v. Joatham Spring Realty Trust, 356 Mass. 487 , 490 (1969). Sporadic recreational use of private roads by lumberers, hunters, and nature viewers does not give rise to a public prescriptive easement. Rivers v. Town of Warwick, 37 Mass. App. Ct. 593 , 598 (1994).

There is little evidence in the summary judgment record on the issue of public prescriptive rights. Defendants submitted into evidence various letters and e-mails from Richard Hucksum (counsel to the Town) that seem to indicate and advise the Planning Board that the general public’s use of Village Gate Road to access Indian Rock, together with the town’s maintenance of Village Gate Road for twenty years, create prescriptive rights in the public. Defendants attempt to boot-strap their argument by relying on letters and e-mails from counsel indicating that the public has established prescriptive rights in Village Gate Road. Defendants presented no underlying evidence, however, that could substantiate these claims and findings. The Affidavits of the Abutters establish that school children and Native Americans have visited Indian Rock for twenty years. These affidavits, however, state that such use was with the permission of the Abutters and Defendants have introduced no affidavit testimony to the contrary. Permissive use will destroy Defendants’ ability to establish public prescriptive rights. Moreover, Defendants do little more than cite the elements of public prescriptive rights in their briefs. Neither Considine nor the Municipals state that there are materially disputed facts relative to the issue of public prescriptive rights. There is no underlying evidence in the summary judgment record to support a claim that the Town has maintained Village Gate Road for more than twenty years.

It appears that Defendants were prepared to rely on the findings in the Planning Board Approvals to support this claim. As this dispute is heard as a trial de novo, such findings are irrelevant to this court’s review of the rights of Considine or the public in Village Gate Road. Furthermore, as stated supra, there was little basis on which the Planning Board could have determined that the public has established prescriptive rights in Village Gate Road. The burden is on Considine and the Municipals, as the parties asserting public prescriptive rights, to prove that such rights have been established. Defendants have failed to satisfy their burden in this regard. As such, I find that the determination by the Planning Board that Considine has established prescriptive rights over Village Gate Road to access the Subdivision was based on legally untenable grounds, and that such determination exceeded the authority of the Planning Board. [Note 32]

4. Emergency Access

The Abutters claim that the Bylaw and the Rules and Regs require two access points to the Subdivision, but they do not specifically cite any section of the Rules and Regs or the Bylaw that requires two access points. Considine maintains that it has two access points: (1) Wayside Lane and (2) Village Gate Road (for emergency access). All parties agree that Wayside Lane is to serve as primary access to the Subdivision. The central issue between the parties is the status of Village Gate Road. It appears that the Abutters contend two points of access are required because the Rules and Regs do not allow dead-end roads greater than 1000 feet. Waiver f of the Subdivision Decision, however, waives the dead-end road length requirement for Wayside Lane on various grounds. If only one access is required, and if Waiver f is valid, then any discussion of the validity of Village Gate Road as access is moot. As such, if Waiver f is within the reasonable discretion of the Planning Board, then the Abutters argument relating to two points of access must fail. The Subdivision Decision, however, contains a number of ambiguous provisions relating to the use of Village Gate Road. The validity of the Waivers and the Conditions as they relate to the use of Village Gate Road are discussed, infra.

According to Considine, and pursuant to G.L. c. 89, § 7, the Abutters cannot prevent emergency vehicles from accessing the Subdivision. [Note 33] The Waivers relate to the status of Village Gate Road as emergency access to the Subdivision. Waivers from strict compliance with the rules and regulations of the planning board may be granted only when “such action is in the public interest and not inconsistent with the intent and purpose of the subdivision control law.” G.L.c. 41, 81R. “If, in a given case, it is one as to which reasonable minds might in good faith differ, without doubting the reasonableness of the opposing view, the conclusion reached by the planning board should be sustained on judicial review.” Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 809 (1981). “The standard of review on whether a waiver is inconsistent with the intent and purpose of the subdivision control law is more exacting, however, and a court may nullify a planning board’s decision if the inconsistency advanced by the waiver is shown to be substantial.” Buchanan v. Angelini, 1996 Mass. Super LEXIS 484 (1996), citing Arrigo, supra, at 809. Road length regulations are enacted to mitigate the “concern that the blocking of a dead-end street, as by a fallen tree or an automobile accident, will prevent access to the homes beyond the blockage particularly by fire engines, ambulances, and other emergency equipment.” Nahigian v. Lexington, 32 Mass. App. Ct. 517 , 521 & n.3 (1992), citing Wheatley, 7 Mass. App. Ct. at 451.

Waiver f allows for a road length of 4,588 feet measured from the intersection of Wayside Lane and York Street (a public road) to the cul-de-sac at the end of Road C as shown on the Flexible Subdivision Plan. As grounds for granting this waiver, the Planning Board determined that “proposed emergency access at the terminus of Village Gate Road limits the actual road length, the gated emergency access is temporary in nature and because revisions to the roadway layout proposed would increase pavement and runoff.” (emphasis supplied). The Abutters only challenge this waiver to the extent it implies that Village Gate Road will be used as a primary access to the Subdivision. Neither party presented any evidence relating to the issue of whether “the roadway layout proposed would increase pavement and runoff.” As stated, supra, the purpose of dead-end road requirements is to ensure that emergency vehicles have adequate access to the homes within a subdivision. The Planning Board granted the waiver relying in part on emergency access from Village Gate Road (assuming such access was temporary). Although the length of the dead-end road from the intersection of Wayside Lane and York Street to the end of Road C is more than four times the maximum allowed in the Rules and Regs, a permanent and adequate emergency road can certainly mitigate this concern. As a result, it appears that Waiver f, with emergency access as a permanent condition rather than temporary, may meet the reasonableness standard of G.L. c. 41, § 81R and related case law. In this event, a second permanent access would not be necessary. I shall remand this matter to the Planning Board to take action consistent with this decision. [Note 34]

We must now look at other provisions of the Subdivision Decision relative to the use of Village Gate Road as permanent access to the Subdivision. The Subdivision Control Law, G.L. c. 41, §§ 81K81GG, inclusive, constitutes a “comprehensive statutory scheme designed for the safety, convenience and welfare of the inhabitants of the cities and towns.” Costanza & Bertolino, Inc. v. Planning Bd. of N. Reading, 360 Mass. 677 , 679 (1971). “A planning board’s rejection of a proposed subdivision must be based on particular subdivision regulations that are ‘comprehensive, reasonably definite, and carefully drafted.’” Sullivan v. Planning Bd. of Acton, 38 Mass. App. Ct. 918 , 919 (1995), quoting Castle Estates, Inc. v. Park & Planning Bd. of Medfield, 344 Mass. 329 , 334(1962). A Planning Board must have authority in its Rules and Regulations to impose conditions to approval. See Sullivan, supra, at 920. Courts have not allowed a board “to impose a condition the performance of which lies entirely beyond the applicant’s power.” Id, quoting V.S.H. Realty, Inc. v. Zoning Bd. Of Appeals of Plymouth, 30 Mass. App. Ct. 530 , 534 (1991). In both Sullivan and V.S.H. Realty, Inc., the courts invalidated conditions to a subdivision approval requiring an applicant to make improvements to a state highway. Those courts noted that the applicant had no right to make improvements without approval from the Department of Highways. See Sullivan, at 920; V.S.H. Realty, Inc., at 534.

The Subdivision Decision contains several conditions (the Conditions) that cause concern to this court. The Abutters do not expressly challenge the validity of the Conditions, but they do challenge Considine’s rights to use and improve Village Gate Road. The Conditions, as discussed below, directly relate to improvements to Village Gate Road and its contemplated status as a public road. In this regard, this court must determine whether Considine has any right to carry out and comply with the Conditions keeping in mind the discussion, supra, regarding Considine’s rights in Village Gate Road. The Conditions to the Subdivision Decision indicate that the Planning Board wants Village Gate Road to be a public road, but only after Considine makes substantial improvements to it. Then, once Village Gate Road is a public road, lot owners within the Subdivision will have the right to use Village Gate Road as a primary access. The Subdivision Decision, however, is based on the premise that Village Gate Road will only be used for emergency access until it becomes a public road, because that is all that is required by the Rules and Regs and Waiver f, discussed supra.

Condition 23 states, “subject to approval of all appropriate parties, the applicant agrees to perform improvements to Village Gate Road that would bring the entire length of the street into compliance with [acceptable standards to the Town for a public road.] The underlying objective is to have the Road Commissioners present the entire length of Village Gate Road at Town Meeting for acceptance as a Public Way.” As discussed herein, Considine has limited rights in Village Gate Road and those rights do not include the right to make improvements to Village Gate Road for the benefit of the entire Subdivision. As noted in both Sullivan and V.S.H. Realty, Inc., the Planning Board cannot impose a condition that is beyond the applicant’s power. In the case at bar, Considine has no power to make improvements to Village Gate Road because it is a private road with the fee interest vested in the owners of lots along the road. To wit, without a taking by the Town, Considine has no power to present Village Gate Road for acceptance as a public road without the approval and permission of all other persons with an interest in Village Gate Road.

Another problem with this condition lies in the proposed timing as set forth in the Subdivision Decision. For Condition 23 to even have a chance of surviving, the Town would first have to make a taking of Village Gate Road (and provide just compensation to all interest holders). Only then, might the Planning Board have the authority to impose a condition requiring Considine to make substantial improvements in the road. Until then, Village Gate Road remains private and Considine has no right to make improvements. Cf. Sullivan, supra, at 921 (town has authority to require grant of easement and improvements to town public way outside of subdivision to ensure adequate access to subdivision). [Note 35]

Furthermore, there is nothing in Condition 23 or any other provision of the Subdivision Decision to guarantee that the Town will either accept or make a taking of Village Gate Road. It is axiomatic that a board “may not delegate to another board, or reserve to itself for future decision, the determination of an issue of substance.” See Miles v. Planning Bd. of Millbury, 29 Mass. App. Ct. 951 , 952 (1990), quoting Tebo v. Bd. of Appeals of Shrewsbury, 22 Mass. App. Ct. 618 , 624 (1996). The Planning Board in the case at bar is delegating compliance with Condition 23, i.e. acceptance of Village Gate Road as a public road, to Town Meeting. The Planning Board is also delegating compliance and approval of the improvements to Village Gate Road to the Road Commissioners and the Engineering Department for the Town. Without further action, Village Gate Road cannot be improved as contemplated in the Subdivision Decision and must be limited to emergency access to the Subdivision, if used at all. For the reasons stated above, I find that Condition 23 of the Subdivision Decision exceeded the authority of the Planning Board. Condition 24 relates to the timing of the improvements to Village Gate Road that Considine “agreed” to undertake prior to acceptance as a public way. For the same reasons as discussed in relation to Condition 23, I find that Condition 24 of the Subdivision Decision exceeded the authority of the Planning Board.

Condition 33 states:

The emergency access gate, as proposed, will be fitted with the Opticon Control system, to be paid for by the applicant, in order to facilitate the passage of emergency first response vehicles and it shall be installed prior to the release of any lots and located as proposed until : (1) Village Gate Road is officially accepted as a public way; (2) prior to the release of any lots in Phase 3 of the construction of the Definitive Plan for a Flexible Subdivision, or (3) the expiration of three years time from the date of that the emergency access gate is first located as proposed and conditioned herein, whichever occurs first.

Condition 33 indicates that the emergency access gate will be removed upon the first to occur of (1) acceptance as a public way, (2) release of lots in the final Phase 3 of the Subdivision, or (3) three years from the date of the gate’s installation. It is quite possible that Village Gate Road will not be accepted as a public way, if at all, until more than three years after the gate is installed. In that event, the emergency access gate must come down and presumably the lot owners within the Subdivision would use Village Gate Road as access. Village Gate Road, though, would still be private and the rights of Considine’s successors would still be limited. The impediment of the gate would no longer be there, thus there would no longer be any mechanism to enforce use of Village Gate Road as emergency access only. As such, I find that the portion of Condition 33 beginning with “...until: (1) Village Gate Road is officially accepted as a public way...” to the end of Condition 33, is beyond the scope of authority of the Planning Board. [Note 36]

Based on the foregoing, I find that the Planning Board exceeded its authority in imposing the Conditions on the improvements to Village Gate Road for the purposes of making it a public road.

B. Special Permit Decision:

i. Standard of Review

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 v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999), quoting MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). “Even if the record reveals that a desired special permit could lawfully be granted by the board because the applicant's evidence satisfied the statutory and regulatory criteria, the board retains discretionary authority to deny the permit, so long as that denial is not based upon a legally untenable or arbitrary and capricious ground.” Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 355 (2001). After legal issues are decided, a court must grant deference to the Planning Board. See ACW Realty Mgmt, Inc., 40 Mass.App.Ct. at 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).

ii. Open Space Requirements:

The Abutters argue that the Flexible Subdivision Plan does not satisfy the “Open Space” requirement of section 8.6.4 of the Bylaw. Accordingly, according to the Abutters, the Planning Board exceeded its authority in granting the Special Permit. Defendants dispute this point. The Bylaw requires 30% “Common Open Land” for a flexible subdivision located in the Residence AA District. Section 8.6.9 of the Bylaw also states that “no more than fifty (50%) percent of the required open land shall consist of such marginal or unbuildable areas.” “Marginal or unbuildable areas” are specifically enumerated in the Bylaw as: “inaccessible wetland and open water, steep slopes, highly erosion or poorly drained areas, areas of very shallow bedrock, or of very high water table...” The total open space within the Subdivision is 16.113 acres, 37.14% of the total land in the Flexible Subdivision Plan, which is greater than the requisite 30%. Total usable open space, i.e. not marginal area, is 6.631 acres. Therefore, the marginal open space is 9.482 acres. 9.482 acres is 58.847% of total open space and 21.864% of total land within the Subdivision (43.369 acres), i.e. more than 50% of actual open space and minimum required open space.

The Planning Board determined that the Flexible Subdivision Plan complied with the Open Space requirements of the Bylaw because the total usable open space of 6.631 acres (which is 15.29% of the total Subdivision land) exceeds the minimum required area of usable open space requirement, which the Planning Board calculated as 15% of the total land within the Subdivision (i.e., 50% of the minimum required 30% open space for the project). This convoluted analysis is inherently flawed. The Bylaw clearly and explicitly states that no more than fifty percent (50%) of the required open land shall consist of marginal or unbuildable area. The Planning Board interpreted the Bylaw as requiring that no more than 50% of the 30% common open land requirement can be marginal (i.e. no more than 15% of all land within the Subdivision), and ignored the requirement that no more than 50% of land actually dedicated as open space can be marginal. The facts show that the marginal open space consists of (1) 21.864% of all land in the Subdivision (greater than the maximum 15%), and (2) 58.847% of total open space (greater than the maximum 50% of actually dedicated open space).

The record indicates, however, disagreement between Considine and the Planning Board relative to how usable upland open space should be defined and calculated. [Note 37] Considine is of the opinion that land within the thirty foot wetlands buffer should be included as usable open space; however, the Planning Board classified land within the wetlands buffer to be excluded from usable open space and classified as marginal land. [Note 38] Pursuant to the maxim “inclusio unius est exclusio alterius,” it appears that the exclusion of a 30' wetlands buffer from the enumerated marginal land characteristics set forth in section 8.6.9 of the Bylaw would prohibit the Planning Board from arbitrarily classifying a wetlands buffer as marginal land, unless there was a factual basis for determining that all of the buffer area contained “steep slopes, open water, poorly drained areas, shallow bedrock, and land with high water table” (which are specifically mentioned in the Bylaw as “marginal land”).

Based on the foregoing, I find that as presently worded in the Special Permit Decision, the Planning Board’s determination that the Flexible Subdivision Plan complies with the open space requirements of the Bylaw is arbitrary and capricious. As such, the Special Permit Decision must be remanded to the Planning Board for further consideration consistent with this decision. [Note 39]

Furthermore, the Planning Board must consider the Special Permit Decision and the Subdivision Decision separately. The flexible development section of the Bylaw contains several specific pre-requisites to a grant of special permit. Not one of these requirements has anything to do with access. In this regard, any discussion, finding, condition, waiver, etc. relating to access in the Special Permit Decision is wholly irrelevant and outside of the Planning Board’s scope of review as it relates to the Special Permit. Similarly, unlike its current version, the Subdivision Decision should contain no reference to the open space requirements set forth in the flexible development section of the Bylaw. The Planning Board must engage in a separate analysis relative to what is required by (1) the flexible development special permit section of the Bylaw and (2) the Rules and Regs. [Note 40] [Note 41]

As a result of the foregoing, I ALLOW IN PART and DENY IN PART the Abutters’ Motion for Summary Judgment and ALLOW IN PART and DENY IN PART Considine’s Motion for Summary Judgment. [Note 42]

The parties shall attend a status conference on May 8, 2013 at 10:00 AM to discuss how they intend to proceed in this matter. Judgment shall enter after all issues have been resolved.