JAMES LYONS, et al, [Note 1] v. JOAN DUFF, VINCENT CHIOZZI, ERIC MACAUZ, LELANI LODER, ZACH BERGERON and JAMES DOHERTY, as they are MEMBERS of the ANDOVER PLANNING BOARD, and STEVEN A. ROSS, TRUSTEE of the REYNOLDS LENDING TRUST. [Note 2]

These three zoning appeals are the latest of several cases since 2005 in this and other courts regarding a contentious neighborhood dispute in Andover over the development of a residential subdivision that created two buildable lots. In these cases, Plaintiffs Bernadette Lyons (Lyons) and Julie McLeod (McLeod) (collectively, Plaintiffs) appeal under G. L. c. 41, § 81BB votes taken by the Andover Planning Board (Board). All three appeals stem from the Board’s actions during 2013 regarding a registered subdivision plan, first endorsed for approval on January 4, 2005, and reaffirmed on July 13, 2010, after which the plan was accepted and filed with the survey division of the Land Court. The plan is titled “Definitive Subdivision Plan in Andover, Massachusetts, dated June 28, 2004” (Subdivision Plan). The Subdivision Plan created Lots 2 and 3 located on Reynolds Street, a paper street. [Note 3] Lot 2 is a buildable lot (together the lots are sometimes referred to by the parties and herein as the “Barash Lots”). [Note 4] The original approval of the Subdivision Plan was subject to twelve conditions. In August 2013, the Board held the first of a series of public meetings discussing the possible modification to as well as the meaning of Conditions 5 and 6 of the Subdivision Plan approval. The Board’s votes regarding Conditions 5 and 6 are the subject of the three appeals.

Plaintiffs allege the Board erred in treating the requests to modify conditions to the Subdivision Plan as minor modifications, and further allege the Board failed to comply with the notice and hearing requirements of G. L. c. 41, § 81W and the Town of Andover Subdivision Rules and Regulations (Subdivision Rules). Condition 5 required, in relevant part, that the paved roadway within Reynolds Street as shown on the Subdivision Plan “be no further than [two] feet away from the eastern line of the Reynolds Street layout.” Condition 6 provided “no other driveways may be connected to the paved roadway, nor may any other lots or properties use the paved roadway approved by the Board without [Board] approval.”

The Board’s 2013 consideration of the two conditions began when abutters to Reynolds Street made an initial request to the Board for the modifications to Conditions 5 and 6 which was discussed at a public meeting held on August 13, 2013. William P. Johnson (Johnson), who was then the owner of the Barash Lots, sought modification of Condition 5 to allow the existing pavement on Reynolds Street to remain centered within the layout, rather than moving it to comply with Condition 5. Also, Johnson and other property owners along Reynolds Street sought approval for the connection of other driveways to the paved area on Reynolds Street, and use of the paved area under Condition 6.

The public meetings regarding the modifications took place on August 13, September 24, November 12, and December 3, 2013. At the August 13 meeting, the Board members unanimously voted to modify Condition 5, thereby allowing the existing pavement to remain centered on Reynolds Street, referring to the vote as a “minor modification.” This prompted the first of the three cases at issue, 13 MISC 479285, filed August 29, 2013, in which Lyons and McLeod challenge the Board’s designation of the modification as a “minor” modification under the Board’s Subdivision Rules.

At the second public meeting, held September 24, Johnson requested the Board “reaffirm” its August 13 vote allowing the pavement to remain in place. The Board unanimously voted in favor of the request to modify Condition 5, again finding the request constituted a minor modification. Lyons and McLeod appealed, filing case no. 13 MISC 479852, on October 2, 2013, challenging the “reaffirmation” vote.

A third public meeting took place November 12, 2013, at which the Board discussed only Condition 6 and the potential private rights of others to tie into or use Reynolds Street. No official action was taken at the November 12 meeting. The final public meeting at issue took place December 3, 2013. At this meeting, the Board voted “in accordance with Condition #6 of the Reynolds Street subdivision approval, the Board hereby approves (1) the connection of other driveways to the paved road by persons who have rights to so connect, and (2) the use of the paved roadway by owners of any other lots or properties who have rights to use the paved roadway.” This vote triggered the third appeal by Lyons alone, 13 MISC 480952, on December 19, 2013.

The original parties and their positions have changed since the commencement of these actions. Lyons currently owns two lots, Lot 50 (Lyons Lot) and Lot 38 (Stier Lot), depicted as abutting lots on the Subdivision Plan. [Note 5] William P. Johnson, who, as Trustee, was the proponent of the Subdivision Plan is no longer a defendant in any of the cases. Johnson, through Arch Land Development, LLC, granted a deed in lieu of foreclosure to Defendant Steven A. Ross, as Trustee of the Reynolds Lending Trust (Ross), who was then substituted as Defendant. By agreement of the parties, James McLeod was removed as a plaintiff in Case 13 MISC 479285. James Lyons has also been removed as a plaintiff in all actions, as he does not hold an interest in either the Lyons Lot or the Stier Lot. [Note 6]

While the court declined to consolidate the cases, they proceeded in lockstep. [Note 7] A one-day trial took place November 17, 2014. On behalf of Defendants the court heard testimony of Paul Materazzo, Planning Director for the Town of Andover; and William P. Johnson, a home builder, developer and previous owner of the Stier Lot as well as the Barash Lots. On Plaintiffs’ behalf the court heard testimony from Plaintiffs Julie McLeod and Bernadette Lyons; and James Lyons, Bernadette’s husband and a resident of 12 High Vale Street. Thirty-one exhibits were entered in evidence. [Note 8] The non-municipal parties filed post-trial briefs. Based on the agreed statement of facts, the credible testimony, exhibits, stipulations, and other evidence entered at trial and the reasonable inferences drawn therefrom, this court finds the following facts:

Parties

1. Plaintiff Bernadette Lyons is the owner of and individual residing at unregistered property located at 12 High Vale Lane in Andover (Lyons Lot), which abuts the land shown on the Subdivision Plan. See Chalk A. Lyons also owns the Stier Lot which is also known as and numbered 233R Reynolds Street and depicted as Lot 38 on the Subdivision Plan. Lyons took title to the Stier Lot by deed dated November 7, 2013, after the first two of these cases had been filed. The deed into Lyons is recorded with the Essex North Registry in Book 13699, at Page 85, on November 12, 2013. [Note 9]

2. Plaintiffs Julie and James McLeod are individuals residing at 229 Andover Street in Andover, depicted as Lot 46 (McLeod Lot) on the Subdivision Plan.

3. Defendants Joan Duff, Zachery Bergeron, Vincent Chiozzi, Eric Macaux, Lelani Loder and James Doherty are members of the Board at all times relevant to these cases.

4. Defendant Steven A. Ross, Trustee of the Reynolds Lending Trust, is the current owner of the Barash Lots shown on the Subdivision Plan.

Subdivision Plan

5. On January 4, 2005, after public hearing, the Board endorsed its approval of the Subdivision Plan. Land Engineer & Environmental Services, LLC, had prepared the Subdivision Plan for Vale Realty Trust, owner of the property shown on the Subdivision Plan. At the time, William P. Johnson was Trustee of the Vale Realty Trust. The Subdivision Plan was later submitted to the Land Court for filing and formed the basis for Land Court’s issuance of Plans 42451A and 42451B.

6. As shown on the Subdivision Plan, Lot 2 is 66,418 square feet and is the sole buildable lot. Lot 3 is 12,148 square feet and is shown as a cul de sac and part of Reynolds Street. [Note 10]

7. Reynolds Street is also shown on a Plan of Land of E.R. Anderson (Ballardville) Andover, Mass., dated 1876, recorded in Book 42, at Page 600 (1876 Plan). As proposed and shown on the Subdivision Plan, Reynolds Street connected the Barash Lots to Andover Street, a public way.

8. The Lyons Lot, which is not registered land, abuts the southern boundary of the Barash Lots, and the McLeod Lot is located across Anderson Street (not part of the Reynolds Street subdivision), along the northwest boundary of Lot 2. Neither lot has frontage on Reynolds Street. The Stier Lot, which is also not registered land, is bounded on its western boundary by the portion of Reynolds Street that is part of Lot 3.

9. The Board’s approval of the Reynolds Street subdivision was subject to twelve conditions (Conditions), registered as Land Court Document No. 101,675.

10. Under Condition 5:

“[t]he paved roadway in Reynolds Street shall consist of eight (8”) inches of compacted bank gravel, over which shall be placed a two (2”) inch bituminous concrete binder course, and a one (1”) bituminous concrete top course. The eastern edge of the paved roadway shall be no further than two (2’) feet away from the eastern line of the Reynolds Street layout[.]” (italics added).

11. Condition 5, as filed with the Registry District, contains a scrivener’s error, as the Board intended that the pavement be no further than two feet away from the western line of the Reynolds Street layout, rather than the eastern line. By placing it two feet from the western line, the Board intended to minimize headlight glare into the windows of the property owner directly across the street. On September 17, 2013, Paul Materazzo, Planning Director, advised the Board regarding the error in Condition 5 based on staff’s review of the Subdivision Plan approval process. He advised that the Board’s intention to minimize problems for abutters would best be served by leaving the pavement centered within the layout of Reynolds Street.

12. Condition 6 provides:

“[t]his subdivision approval is applicable to and strictly limited to the paved roadway, utilities and building lot shown on the plan. No other driveways may be connected to the paved roadway, nor may any other lots or properties use the paved roadway approved by the Board without Planning Board approval[.]” (italics added).

Previous Litigation regarding the Board’s approval of the Subdivision Plan

13. Lyons and McLeod, with other plaintiffs, appealed the January 4, 2005 subdivision approval to the Land Court, pursuant to G. L. c. 41, § 81BB (05 MISC 305944).

14. The Land Court (Lombardi, J.) dismissed the case due to insufficient service. The court’s dismissal was affirmed by the Appeals Court in Lyons v. Planning Board of Andover, 68 Mass. App. Ct. 1101 (2007). [Note 11] The Lyonses and the McLeods subsequently moved to have the Board rescind its approval, alleging violations of the Conditions. The Board held three hearings and ultimately denied the request for rescission.

15. Lyons, together with her spouse James Lyons, and others, appealed both the Board’s denial of their petition to rescind approval of the Subdivision Plan (10 MISC 431830), and the Board’s reaffirmation of the Subdivision Plan to the Land Court (10 MISC 435033). The cases were consolidated. A decision and judgment entered on December 5, 2012, denying Plaintiffs’ Motion for Summary Judgment and allowing the Board’s Motion for Summary Judgment, dismissing the cases. There was no appeal taken from the court’s judgment. [Note 12]

Pavement Located on Reynolds Street

16. Johnson, as Trustee of the Vale Realty Trust, was the prior owner of the Stier Lot, immediately preceding the Lyons’ ownership.

17. In or around April 2005, Johnson constructed a paved 18-foot wide roadway within the Layout of Reynolds Street, depicted as dashed lines on the As-Built Plan in Andover, Massachusetts – Reynolds Street, dated April 16, 2009 (As-Built Plan). See Sketch B. As shown on Sketch B, the pavement is centered within the portion of Reynolds Street between Andover Street and Anderson Avenue, which corresponds to the portion of the 40 foot Reynolds Street layout shown on the 1876 Plan between Main Street (now Andover Street) and Anderson Avenue.

18. Timothy Barash conveyed the Barash Lots to Arch Development, LLC (Arch) by deed dated August 13, 2013, filed as Land Court Document No. 108,930.

19. Ross was the holder of a mortgage on the Barash Lots when they were conveyed to Arch and Arch subsequently defaulted on the mortgage. Ross succeeded to Arch’s interest through a deed in lieu of foreclosure, filed as Land Court Document No. 110,054, resulting in Certificate No. 17097.

a. As set forth on his certificate of title, Ross, as registered owner of Lots 2 and 3 has “the perpetual right and easement for the benefit of Lot 2 and Lot 3, to be appurtenant to and run with the title to Lot 2 and Lot 3, to use in common with all others entitled thereto, the private way known as Reynolds Street and shown on [Plan 42451B,] for all purposes for which street[s] and ways are used in the Town of Andover.”

b. Also, as set forth on Certificate of Title 17097, Ross is responsible for the “construction, maintenance, and upkeep of Lot 3” and the responsibility to “keep the improved portion of Lot 3 and Reynolds Street Maintained and in Good Condition At all times for use as a roadway. . .”

20. Plaintiffs Lyons and McLeod do not object to the existing location of the pavement, as shown on Sketch B.

Planning Board Public Meetings

21. Section 5(F) of the Town of Andover Subdivision Rules and Regulations (Subdivision Rules), titled “Minor amendments to conditions,” provides: “[m]inor amendments or changes to conditions of approval or restrictions may be made but only upon the following circumstances: 1) Field conditions may warrant minor changes which may be allowed by the Board when in its staff’s opinion such change will not substantially detract from the intent of the condition or restriction. Such a change shall be reviewed and approved by the Board at the next regularly scheduled meeting.”

22. Section 5(G) of the Subdivision Rules, titled “Substantial modification or amendment of an approved subdivision plan or its conditions,” provides “[a]ny modification or amendment of an approved subdivision plan or its conditions which is not minor shall be made only pursuant to [G. L. c. 41, §81W], and shall be subject to the submission, notice, hearing, and approval requirements of Chapter 41 and the rules and regulations of the Board.”

23. At a public meeting on December 14, 2010, the Board heard a minor modification request to modify Condition 5. The proposed language wasted “[t]he paved roadway shall be centered within the Reynolds Street layout.” The Board voted that this request was not a minor modification, and took no further action at that meeting.

24. At a public meeting on August 13, 2013, the Board granted a modification of Condition 5, voting “to recommend approval of the minor modification to the Reynolds Street Subdivision [Condition 5], to allow the paved roadway to remain centered within the right of way.”

25. The Board also voted to approve adding the following language to the end of Condition 6: “as per plan dated November 30, 2004, as prepared by Land and Environmental Engineering Services, LLC, and approved by the Planning Board on January 11, 2005.” The Board did not send abutters notice of the August 13 meeting.

26. After consulting with Town Counsel, Paul Materazzo, the Planning Director for the Town of Andover, advised that a courtesy notice of September 24 meeting be sent to abutters advising them of the discussion of a minor modification. A copy of this notice is not in evidence. McLeod could not remember whether she received a notice. Lyons received the notice approximately a few days before the meeting. The Lyonses attended the meeting.

27. At the meeting on September 24, 2013, the Board reaffirmed its vote from the August 13 Meeting allowing the minor modification of Condition 5. The Board stated that the “requests submitted to maintain the pavement in the center of the right of way is a minor modification because it does not detract from the intent of the condition.” The Board also recommended “approval of the minor modification to the Reynolds Street Subdivision Condition [5], to allow the pavement to be centered in the right of way.” Both motions passed unanimously.

28. At a third public meeting on November 12, 2013, the agenda included a request by Johnson to discuss Condition 6 of the Subdivision Plan. No action regarding Condition 6 was taken at this meeting.

a. The Board did send abutters a courtesy notice of this meeting, stating a public meeting would be held on November 12, 2013 to “review a request by [Arch] to discuss condition #6 of the Reynolds Street Subdivision approval. The discussion will be limited to condition #6 of the Board’s approval[.]”

29. At a fourth public meeting on December 3, 2013, the Board voted “in accordance with Condition #6 of the Reynolds Street subdivision approval, that the Board approves (1) the connection of driveways to the paved road [installed by Johnson] by persons who have rights to so connect, and (2) the use of the paved roadway by owners of any other lots of properties who have rights to the paved roadway.” Bernadette Lyons attended the December 3, 2013 meeting.

* * * * * *

At issue before the court is whether the Board’s actions modifying Conditions 5 and 6 of the Subdivision Plan were a valid exercise of the Board’s authority, and properly implemented in accordance with the Town’s Subdivision Rules and G. L. c. 41, § 81W. The court hears an appeal of a planning board decision brought pursuant to G. L. c. 41, § 81BB de novo, makes independent findings of fact, and determines, based on those findings, the validity of the board’s decision. Rettig v. Planning Bd. of Rowley, 332 Mass. 476 , 478–79 (1995).

I. Standing

In the instant actions, Plaintiffs allege they are adversely affected by the Subdivision Plan modification due to diminution in property value and issues relating to traffic safety and fire hazard. They also argue the Board exceeded its authority in granting the modification, and failed to provide proper notice. Defendants challenge Plaintiffs’ standing, and allege that Plaintiffs have failed to rebut the challenge with sufficient supporting evidence. Defendants also allege the Board’s votes on the modification were proper under Andover’s Subdivision Rules and G. L. c. 41, § 81W.

G. L. c. 41, § 81BB provides a right of appeal for any person aggrieved by a decision of a planning board concerning a plan of a subdivision of land. [Note 13] Because the Zoning Act and the subdivision control law share the similar purpose of regulating the use of land to ensure safety, convenience, and welfare, the meaning of a “person aggrieved” under G. L. c. 41, § 81BB may be guided by case law on zoning appeals pursuant to G. L. c. 40A, § 17. Krafchuk v. Planning Bd. of Ipswich, 453 Mass. 517 , 522 (2009), citing Rattner v. Planning Bd. of W. Tisbury, 45

Mass. App. Ct. 8, 10 (1998).

Although the term “person aggrieved” should not be narrowly construed, the party’s injury must be more than speculative, and must be particularized and distinct from general community interests. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 440 (2005). Additionally, the alleged aggrievement must fall within “a specific interest that the applicable zoning statute, ordinance or bylaw at issue is intended to protect.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011).

Although abutters enjoy an initial presumption of standing, this presumption falls away if adequately challenged. Standerwick, 447 Mass. at 32–33. An abutter’s presumed standing may be challenged with credible evidence that the abutter is not aggrieved by a decision. Rattner, 45 Mass. App. Ct. at 10. Legal arguments and mere allegations are insufficient. Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106 , 110 (1995).

Once rebutted, the issue of standing is then “decided on the basis of the evidence with no benefit to the plaintiff from the presumption.” Standerwick, 447 Mass. at 33, citing Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992). The plaintiff must establish with direct facts, and not by speculation or opinion, that his or her injury is special and different from the concerns of the rest of the community. Kenner, 459 Mass. at 118–19; Standerwick, 447 Mass. at 33.

a. Bernadette Lyons Has Standing

Lyons alleges harm largely due to traffic on what she claims is her driveway within the paved portion of Reynolds Street and resulting diminution in property value. She enjoys a presumption of standing. Ross contends this presumption was effectively rebutted at trial, shifting the burden to Lyons and that she failed to re-establish standing. Given that she is an abutter and has co-extensive rights along Reynolds Street in common with Defendant Ross, it is not enough for Ross to simply raise the issue of Lyons’ standing. His challenge must be supported by evidence. See Standerwick, 447 Mass. at 37; Watros, 421 Mass. at 111; Valcourt v. Zoning Bd. of Appeals of Swansea, 48 Mass. App. Ct. 124 , 128 (1999).

At trial, Defendants did not present sufficient evidence to rebut Lyons’ presumptive standing. Defendants did not offer expert testimony, and mainly cite cross-examination of the Lyonses as proof that their harms are unsubstantiated and speculative. While the testimony was vague, on its own it did not effectively rebut Bernadette Lyons’ presumptive standing. Nonetheless, this court was unpersuaded by her legal positions and accordingly finds and rules in favor of Defendants on the merits, as set forth below.

b. Julie McLeod and James McLeod Lack Standing to Bring Appeals from the Board’s Decisions as a Plaintiffs in 13 MISC 479285 and 13 MISC 479852

The McLeods stand in a different posture. Ms. McLeod’s testimony at trial made clear that her objection to the Board’s decisions derive from her desire that no houses be built behind her house. Her property technically abuts the Barash Lots, with approximately thirty feet of her backyard property line across from Lot 2, along Anderson Avenue (a paper street not part of the Subdivision Plan). However, she does not claim any access rights in common with the Barash Lots over Reynolds Street, nor does her property abut Reynolds Street. Her trial testimony regarding potential harm to her property was speculative and largely not credible. To the extent she claimed a diminution in value resulting from the Board’s decisions, her claim was not supported by expert testimony.

Her primary concern was the loss of her view of woods beyond her backyard if Defendant builds a house on Lot 2. As set forth in an e mail she and her husband wrote to the Johnsons on January 23, 2005, in connection with the original subdivision approval process, they “just don’t want a house behind us.” [Note 14] While the court believed Ms. McLeod and her husband are unhappy about their loss of view, that concern does not support standing. Kenner, 459 Mass. at 120–21.

In addition to her concerns about loss of view, she expressed concerns, which the court did not credit, regarding the development potential of currently undeveloped lots along Anderson Avenue which are neither part of the subdivision in question nor owned by Defendant. She also raised safety concerns for her children and neighborhood children who currently walk to school through a largely undeveloped neighborhood. In any event, those concerns were general concerns, not affecting her property in any special way, and therefore do not confer standing. Marashlian, 421 Mass. at 721. Ms. McLeod’s articulation of her and her husband’s concerns about the Board’s modification decisions seen in the context of the location of her property was sufficient to rebut their presumptive standing after trial.

II. The Board’s Votes Regarding Modifications to the Subdivision Plan Were Proper and Adhered to the Town’s Subdivision Rules and G. L. c. 41, § 81 et seq.(subdivision control law)

a. The Board’s Vote on Condition 5 Constituted a Minor Modification

Plaintiff asserts the Board exceeded its authority and erred in categorizing its vote on Condition 5 as a minor modification, rendering the Board’s decision a nullity. This court disagrees, and finds that the Board’s vote on Condition 5 constituted a minor modification that did not require a full hearing and notice.

Condition 5 concerns the paved roadway in Reynolds Street. It states “[t]he eastern edge of the paved roadway shall be no further than [two] feet away from the eastern line of the Reynolds Street layout.” The parties agreed and this court found that Condition 5 contains a scrivener’s error, and that the Board intended the pavement be no further than two feet away from the western line of the Reynolds Street layout, rather than the eastern line. The Board intended to minimize glare from headlights from negatively impacting the property across the street. As built, however, the pavement is centered within Reynolds Street, and lies approximately eleven feet from the eastern edge of the Reynolds Street layout.

The erroneous placement of the pavement on Reynolds Street was addressed at the August 13, 2013 public meeting. Christopher and Cheryl Murphy, as abutters to Reynolds Street and owners of Lot 44 on Sketch A requested that the pavement remain centered as built. The Board, consistent with its staff’s recommendation, properly deemed this a minor modification, finding that the modification did not “substantially detract from the intent of the original approval.” The location and width of the right of way on Reynolds Street remains unchanged, and the pavement’s current location best serves the Board’s goal of minimizing negative impacts on abutting property owners. [Note 15]

Further, although none of the Plaintiffs expressly waived their claims regarding the modification of Condition 5, all parties stipulated at trial the pavement should remain centered, rather than risk a potentially disruptive excavation and repaving of the roadway. While the court specifically finds that the Board’s modification of Condition 5 was a minor modification and its disposition of the application was well within its reasonable discretion, the court also notes that it is likely Plaintiffs waived their rights to contest the modification by stipulating that they did not have a desire for the pavement to be relocated.

b. The Board’s Vote on Condition 6 Did Not Constitute a Major Modification Requiring a Full Hearing and Notice

In 13 MISC 480952, Lyons alleges the Board’s actions regarding Condition 6 constituted a major modification that, under Section 5(G) of the Town’s Subdivision Rules, required notice and a hearing in accordance with G. L. c. 41, § 81, et seq. The Board voted on December 3, 2013, to allow parties having rights, to tie into or use the paved portion of Reynolds Street. The court finds that this vote did not constitute a major modification, and did not require notice or a hearing.

Condition 6, in full, states the subdivision approval “is applicable to and strictly limited to the paved roadway, utilities and building lot shown on the plan. No other driveways may be connected to the paved roadway, nor may any other lots or properties use the paved roadway approved by the Board without Planning Board approval” (italics added). On December 3, the Board approved “the connection of other driveways to the paved roadway by persons who have rights to so connect, and . . . the use of the paved roadway by owners of any other lots or properties who have rights to use the paved roadway.” Plaintiffs argue this vote constituted a major modification, because Condition 6 prohibits any other connections by any parties in the road, other than for access to the Stier Lot.

The court disagrees that Condition 6 prohibits further connections to or use of the pavement on Reynolds Street. Condition 6 instead requires property owners other than the proponent of the Subdivision Plan to obtain Board approval before tying into or using the roadway. Condition 6 contains two clauses: “[n]o other driveways may be connected to the paved roadway,” and “nor may any other lots or properties use the paved roadway[.]” The last phrase of Condition 6, “without Planning Board approval,” applies to both clauses: no person may tie into or use the pavement unless expressly approved by the Planning Board. The Board’s vote on December 3 was not a major or minor modification. Instead, the Board followed the requirement outlined in Condition 6, and considered whether to approve the rights of parties to use the pavement, ultimately allowing only those “who have rights to so connect [or] to use the paved roadway” to do so. The court finds the Board did not act unreasonably or exceed its authority in essentially treating the December 3 vote on Condition 6 as a minor modification, as it was at best a minor modification, but perhaps no modification at all. The vote certainly did not constitute a major modification.

III. Plaintiff did not Establish Defendant has no Rights of Access over the Paved Area Within Reynolds Street and that Lyons, as Owner of the Stier Lot, has Exclusive Access Rights

Lyons claims the pavement on Reynolds Street is Lyons’ exclusive property for use as a driveway to the Stier Lot, and that owners of the Barash Lots are not allowed to use the pavement as a roadway for access to their lots. However, Ross’ rights over Reynolds Street do not derive from the Subdivision Plan approval Condition 6. They are registered appurtenant rights to his fee ownership of the Barash Lots, and Lot 3 is part of Reynolds Street, as shown on the Subdivision Plan. According to Ross’ Certificate of Title to the Barash Lots:

“[t]here is conveyed herewith to the Grantee the perpetual right and easement for the benefit of Lot 2 and Lot 3, to be appurtenant to and run with the title to Lot 2 and Lot 3, to use in common with all others entitled thereto, the private way known as Reynolds Street and shown on said Plan, for all purposes for which street and ways are used in the Town of Andover.”

This language is clear and grants Ross an easement over Reynolds Street. It appears to the court that there may well have been some misunderstanding on Johnson’s part as to the exact location of the pavement vis a vis the property line between the Stier Lot and the Barash Lots, but regardless of where the pavement is located within the Reynolds Street layout, Ross has a right of access in and over it. As stated in the court’s decision in cases 10 MISC 431830 and 10 MISC 435033, any objections to this registered easement should have been raised in an appeal of the original subdivision plan approval, and may not be collaterally attacked in this action. Even if that were not the case, the challenge to Defendant’s right to use Reynolds Street has no basis on the record. [Note 16]

IV. Conclusion

The Board’s votes on August 13, September 24, and December 3, 2013, to the extent they modify, clarify or re-affirm Conditions 5 and 6 to the Reynolds Subdivision Plan were within the Board’s authority under the subdivision control law and the Board’s Rules.

Judgment to enter accordingly.

exhibit 1

exhibit 2