RAYMOND J. GOSSELIN and LINDA E. GOSSELIN v. RUDOLPH PIZZANO, ROBERT M. McLANE, JR., GRATIA L. McLANE, GARWIN K. FLEMING, JR., and PAGE H. FLEMING.

Raymond J. Gosselin and Linda E. Gosselin (the Gosselins) filed their Verified Complaint on July 13, 2015, naming as defendants Rudolph Pizzano (Pizzano), and Robert M. McLane, Jr. and Gratia L. McLane (the McLanes), and seeking a declaration that several easements and restrictive covenants which burden their property located at 67 Essex Street, Hamilton, Massachusetts are invalid or unenforceable. Pizzano field his Answer on July 31, 2015. On March 18, 2016, the court allowed Plaintiffs' Motion for Issuance of Ex Parte Memorandum of Lis Pendens and endorsed the Memorandum of Lis Pendens as to Defendants Robert M. McLane, Jr. and Gratia Lee McLane. The court heard cross-motions for summary judgment on April 19, 2016. On July 14, 2016, the Gosselins filed their First Amended Verified Complaint to name Garwin K. Flemming, Jr. and Paige H. Flemming (the Flemmings) as additional defendants. The court issued its Memorandum and Order on Cross-Motions for Summary Judgment (Memorandum and Order) on December 28, 2016. The claims against the McLanes were dismissed without prejudice on January 20, 2017. The Flemmings filed their Answer on January 26, 2017.

A view was taken on September 6, 2017, and a trial was held on September 7, 2017. On November 14, 2017, Plaintiffs' Post-Trial brief was filed. On November 15, 2017, Defendant Pizzano Proposed Findings of Facts, Rulings of Law, and Final Judgment was filed. The court heard closing arguments on December 14, 2017. On January 16, 2018, Addendum I to the Plaintiffs' Post Trial brief was filed. The court then took the case under advisement. In a Decision of even date, the court (Foster, J.) has made findings of fact and rulings of law.

In accordance with the court's Memorandum and Order dated December 28, 2016, and its Decision issued today, it is

ORDERED and ADJUDGED that the claims against the McLanes and the Flemmings are DISMISSED without prejudice. It is further

ORDERED, ADJUDGED, and DECLARED that the Site Easement recorded in the Essex South Registry of Deeds (registry) on August 31, 1994, in Book 12727, Page 161, as appearing in a deed to Jason T. Kuplen (Kuplen) dated September 1, 1994, recorded in the Essex South District Registry of Deeds (registry) in Book 12731, Page 25, and in a deed from Kuplen to the Gosselins dated June 1, 2000, recorded in the registry in Book 16375, Page 484 (the Gosselin Deed), is valid and enforceable. It is further

ORDERED, ADJUDGED, and DECLARED that the building restriction as it appears in the Gosselin Deed and a deed to Pizzano dated April 13, 1995, and recorded in the registry in Book 12986, Page 237 (the Pizzano Deed) is enforceable pursuant to G.L. c. 184, § 30. It is further

ORDERED, ADJUDGED, and DECLARED that the location of the No Build Area described in the Gosselin and Pizzano Deeds is as shown on a plan entitled "Exhibit Plan in Hamilton, MA Scale: 1" = 20' September 5, 2017, " a copy of which is attached here as Exhibit A. It is further

ORDERED, ADJUDGED, and DECLARED that the passive use restriction as it appears in the Gosselin and Pizzano Deeds is not enforceable pursuant to G.L. c. 184, § 30. It is further

ORDERED, ADJUDGED, and DECLARED that upon payment of all required fees, this Judgment or a certified copy of this Judgment may be recorded at the registry and marginally referenced on all relevant documents.

By the Court.

exhibit 1