DEWITT P. DAVENPORT, AS TRUSTEE OF THE DAVENPORT REALTY TRUST v. 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”) (together with the Planning Board, the “Municipal Defendants”). [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. A decision (“Land Court Decision 1”) was issued on December 20, 2013, and this court remanded the case to the Planning Board for a proper recommendation from the Board of Health, if such recommendation were 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. The Planning Board held a remand hearing, and on March 3, 2014, the Planning Board issued a new decision (“Planning Board Decision 3”). On March 6, 2014, Plaintiff filed his Motion to File Supplemental Complaint and Stay Entry of Judgment. Dennisport filed its Opposition on March 26, 2014. The Municipal Defendants filed their Opposition on April 7, 2014. A hearing was held on the Motion on April 8, 2014, and this court issued an Order (the “Order”) of even date. Based on Land Court Decision 1 and the Order, it is:

ORDERED AND ADJUDGED that Dennisport’s Motion to Strike Exhibit A to Plaintiff’s post-trial brief is ALLOWED.

ORDERED AND ADJUDGED that the case at bar and the action filed by Plaintiff with the Barnstable Superior Court on March 31, 2006, do not share an “identity of cause of action.”

ORDERED AND ADJUDGED that Plaintiff is not barred from litigating Count I relating to the Road by the doctrine of claim preclusion.

ORDERED AND ADJUDGED that the doctrine of issue preclusion does not bar the litigation of all issues relating to the Road.

ORDERED AND ADJUDGED that res judicata does not apply to the case at bar relative to the status of the Road.

ORDERED AND ADJUDGED that the Road was properly laid out and accepted by the Town as a public way in 1846.

ORDERED AND ADJUDGED that Great Western Road (“GWR”) begins at the point as determined and testified to by Chester Lay (“Lay”) (which testimony is embodied on Chalk A).

ORDERED AND ADJUDGED that Registration Case No. 34903 and Registration Case No. 36728 are not convincing evidence that the Road was not laid out according to Lay’s testimony.

ORDERED AND ADJUDGED 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.

ORDERED AND ADJUDGED that the Road provides adequate frontage for the Project.

ORDERED AND ADJUDGED that the Project meets the maximum building coverage requirement of 15% of the lot.

ORDERED AND ADJUDGED that Terrance Hayes (the Dennis Health Director) had the authority to act on behalf of the Board of Health and make a recommendation to the Planning Board pursuant to section 4.9.2.4.1.c of the Dennis Zoning By-law.

ORDERED AND ADJUDGED that the Planning Board, in issuing Planning Board Decision 3, did not exceed its authority in approving the Project and issuing Special Permit 2 with a density greater than 10,000 square feet per bedroom.