HAROLD G. NABHAN and VIOLET ANN NABHAN vs. TOWN OF SALISBURY.

Plaintiffs filed their unverified Complaint (10 MISC 442909) (the “Easement Case”) on November 12, 2010, pursuant to G. L. c. 231A, seeking a declaratory judgment relative to the status of a travel easement (the “Easement”) held by Defendant Town of Salisbury (the “Town”) over land owned by Plaintiffs and located at 402 North End Boulevard, Salisbury, MA (“Plaintiff Property”). [Note 1] The Town filed its Answer on December 17, 2010. A case management conference was held on January 26, 2011. On March 11, 2011, the Commonwealth of Massachusetts (the “Commonwealth”), as current owner of Salisbury Beach, filed its Motion to Intervene as a Defendant. This court allowed that motion on May 24, 2011.

Plaintiffs are seeking a building permit (the “Building Permit”) from the Town for the construction of a single family residence on Plaintiff Property. The Town’s Building Inspector denied the Building Permit because the residence would interfere with the Easement. The Town’s Zoning Board of Appeal (the “ZBA”) upheld the Building Inspector’s decision. Plaintiffs filed their unverified Complaint (11 MISC 448384) (the “Building Permit Case”) on May 10, 2011, pursuant to G. L. c. 40A, §17, appealing the decision of the ZBA. [Note 2] The Commonwealth was also a defendant in the Building Permit Case. A case management conference was held on June 22, 2011, and the two cases were consolidated.

On July 21, 2011, the Town filed its Counterclaim seeking declaratory judgment relative to the Easement and an injunction prohibiting Plaintiffs from construction within the Easement. Plaintiffs filed their Answer to the Counterclaim on October 26, 2011. On June 24, 2013, a Settlement Agreement between Plaintiffs and the Town dated May 31, 2013, relative to the status of the Easement, was filed with this court. The Commonwealth filed its Motion for Summary Judgment in the Easement Case on June 26, 2013, together with supporting memorandum and Statement of Material Facts. [Note 3] The Town filed its Cross-Motion for Summary Judgment in the Easement Case on July 25, 2013, together with supporting memorandum and Statement of Additional Material Facts. On the same day, Plaintiffs filed their Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, and Affidavit of Harold G. Nabhan. The Commonwealth filed its Reply to the Cross-Motions on July 31, 2013. A hearing was held on all motions on August 5, 2013, and the matter was taken under advisement. A Decision of today’s date (the “Decision”) has been rendered. In accordance with the Decision it is:

ORDERED and ADJUDGED that the Easement may be extinguished without a vote of the Legislature under Article 97 of the Articles of Amendments to the Constitution of the Commonwealth of Massachusetts.

ORDERED and ADJUDGED that the Easement is not protected by the doctrine of prior public use. [Note 4]

ORDERED and ADJUDGED that only the inhabitants of the Town, and not the general public as the Commonwealth contends, has the right to use the Easement.

ORDERED and ADJUDGED that the Town and Plaintiffs are, by the very terms of the instrument dated July 9, 1903 and recorded with the Essex County South District Registry of Deeds at Book 1710, Page 252 by which the Town conveyed land to the Commoners of Salisbury (the “1903 Indenture”), not expressly prohibited from disposing of or modifying their portion of the Easement without the Commonwealth being a party to such agreement.

ORDERED and ADJUDGED that the doctrine of collateral estoppel serves no bar here.

ORDERED and ADJUDGED that res judicata serves no bar here.

ORDERED and ADJUDGED that the Commonwealth’s Motion for Summary Judgment is DENIED and Town’s and Plaintiffs’ Cross-Motions for Summary Judgment are ALLOWED.