MISC 16-000417

April 5, 2018

Barnstable, ss.




These two related cases raise three issues: (1) whether Danute and Thomas P. Quinn enjoy an easement over 2171 Main Street (Route 6A) in Barnstable, Massachusetts; (2) whether the owner of 2171 Main Street (John J. Dillon Jr., as trustee of the John J. Dillon, Jr. Trust) has standing to challenge a building permit issued to Ms. Quinn to build a large residence on a lot that purportedly benefits from the alleged easement; and (3) if Trustee Dillon has standing, whether a decision of the Barnstable Zoning Board of Appeals that upheld Ms. Quinn's building permit is defective.

To resolve these issues, the Court held a trial on October 25, 2017. The Court heard closing arguments in the case on December 13, 2017. Based on the parties' admissions, the testimony at trial, the exhibits received into evidence, and the Court's view of 2171 Main Street and two adjacent properties owned by the Quinns, the Court finds these facts:

1. By deed dated July 21, 1949 (the "1949 Deed"), John J. and Anne M. Dillon purchased as tenants by the entirety 2171 Main Street. The 2171 Main Street lot was roughly L- shaped in 1949, but its "leg" has largely disappeared. The property's vertical axis runs north/south. Main Street, also known as State Route 6A, is the northern boundary of the 2171 Main Street lot.

2. At the time of trial, 2171 Main Street was densely wooded. The only cleared area on the lot is at its northern end, the end closest to Route 6A/Main Street. The cleared area, an open yard, surrounds a single-family residence occupied by Trustee Dillon.

3. The Dillon residence is approximately 40 feet from Route 6A/Main Street. Route 6A/Main Street is a moderately busy state highway. Traffic on the highway includes trucks and other large vehicles. Traffic from Route 6A/Main Street can be heard as much as 600 feet away. The headlights of vehicles travelling on Route 6A/Main Street are visible from the Dillon residence, although they shine on the property only as long as it takes a car to pass. There also is an operating "cobra" streetlight on Route 6A/Main Street, approximately 100 feet from the Dillon residence. That streetlight brightly illuminates an area having a 150-foot diameter below the light. The streetlight is visible from the Dillon residence.

4. The Dillon residence has views of a residence to the west, at 2159 Main Street, and two residences across Route 6A/Main Street. There also is a large residence on a property that abuts 2171 Main Street to the east. I credit Daniel Ojala's testimony that, at night, lights from the surrounding existing residences are visible from 2171 Main Street.

5. Trustee Dillon is one of John and Anne's three sons, the others being Daniel F. Dillon and Cormac J. Dillon. (To avoid confusion, this opinion will refer to the father as John, Sr. and the son as Trustee Dillon. Once this Decision introduces a member of the Dillon family, the Decision thereafter will refer to that person by his or her first name.)

6. Daniel married Sharon P. Dillon, who now goes by Sharon Grant. In 1965, Daniel and Sharon purchased the property at 2159 Main Street. That property abuts virtually the entire western side of the 2171 Main Street lot. Route 6A/Main Street is the northern boundary of the 2159 Main Street lot. The 2171 and 2159 Main Street lots have not been in common ownership since 1914, although for a brief period of time (see ¶¶ 16-23 below) Daniel was a joint tenant, with Trustee Dillon and Cormac, of the 2171 Main Street lot.

7. At the time Daniel and Sharon purchased 2159 Main Street, it contained a one-story, three-bedroom residence. That sufficed for a family of four (at the time of the purchase, Daniel and Sharon were expecting their second child), but by late 1973 or early 1974, with a fourth child on the way, Daniel and Sharon wanted a larger home. They believed they had three options: move to a bigger house elsewhere, build a new one on the southern end of their 2159 Main Street lot, or enlarge their existing home.

8. Daniel and Sharon couldn't find a larger home in Barnstable that they could afford. They thus investigated building a new home. The only participant in that effort who testified at trial was Sharon. Her memory of the 1973-74 events is limited. While the Court accepts her testimony as true, the Court must augment what she remembered at trial with facts to which the parties have stipulated.

9. In April 1974, Edward E. Kelley, a registered land surveyor, filed with the Barnstable Planning Board on behalf of John, Sr., Anne, Daniel and Sharon a sketch of a proposed subdivision (the "Subdivision Sketch"). The Subdivision Sketch depicted a proposed 40-foot way, located approximately on the boundary between the 2171 Main Street lot and the 2159 Main Street lot, although more of the proposed way (which ended in a cul-de-sac) lay on the 2171 Main Street lot than it did on the 2159 Main Street lot. The Subdivision Sketch also showed a division of the 2159 Main Street lot into two lots, numbered "1" and "2". The Subdivision Sketch did not depict any division of the 2171 Main Street lot, but it did label that lot "3". Lot 1 contained Daniel and Sharon's existing residence. Lot 2 corresponds with Sharon's testimony as to the location she and Daniel had considered for their new home.

10. The Planning Board approved the Subdivision Sketch as a preliminary subdivision plan on April 8, 1974.

11. On April 29, 1974, surveyor Kelley filed with the Planning Board a Form C Application for Approval of Definitive Plan (the "Form C Application"), but this time as agent for only Daniel and Sharon. The Application included an April 24, 1974 plan depicting the proposed subdivision (the "April 1974 Subdivision Plan"). Like the Subdivision Sketch, the April 1974 Subdivision Plan proposed a division of the 2159 Main Street lot. The April 1974 Subdivision Plan showed the same proposed 40-way, now labelled "Dillon Lane," seen on the Subdivision Sketch. But unlike the Subdivision Sketch, the April 1974 Subdivision Plan did not indicate that 2171 Main Street was part of the proposed subdivision, nor did the Plan depict the entire 2171 Main Street lot.

12. The Planning Board approved the Form C Application and the April 1974 Subdivision Plan in June 1974. The Board signed the Plan in August 1974. The Plan was subsequently was recorded at the Barnstable County Registry of Deeds (the "Registry").

13. In July 1974, Daniel and Sharon signed a Declaration of Restrictive Covenants, which was subsequently recorded in the Registry. In that document, Daniel and Sharon declared that Dillon Lane would be used only for the purposes of Lots 1 and 2 on the April 1974 Subdivision Plan, and would not be "used to serve further or future development outside the perimeter of said plan."

14. At some point in 1974, Daniel and Sharon approached John, Sr. and Anne about their granting Daniel and Sharon an easement in Dillon Lane. John, Sr. agreed to grant an easement, but Anne refused. Daniel and Sharon thus did not receive any writing from John, Sr. or Anne granting an easement in proposed Dillon Lane, or even a promise to grant such an easement in the future.

15. Anne's decision ended Daniel and Sharon's efforts to locate a house on Lot 2 of the April 1974 Subdivision Plan. Instead, in 1977, Daniel and Sharon added a second story to their 2159 Main Street residence. That residence, which is still located on Lot 1 of the April 1974 Subdivision Plan, is approximately 100 feet west of Trustee Dillon's dwelling at 2171 Main Street. Lights from the 2159 Main Street house are visible at the Dillon house, and vice versa. The residences likewise hear each other's sounds.

16. Anne died in 1980. John, Sr. died in 1988. Upon John Sr.'s death, Trustee Dillon, Daniel and Cormac inherited 2171 Main Street as tenants in common. At the time the Dillon brothers inherited 2171 Main Street, Daniel and Sharon still owned 2159 Main Street.

17. In 1989, the Dillon brothers decided to sell 2171 Main Street to Trustee Dillon (although he hadn't by that time established his eponymous trust) and his wife, Rosemary S. Dillon, for $144,000. Trustee Dillon and Rosemary decided to finance the purchase by borrowing $144,000 from Northern Mortgage Company, Inc.

18. The Dillon brothers did not hire an attorney to represent them in their sale of 2171 Main Street, and no attorney represented Trustee Dillon or Rosemary as the buyers in that transaction. Instead, the only attorney who was involved in the sale of 2171 Main Street was Theodore J. Myers, a lawyer hired by Northern Mortgage Company.

19. Attorney Myers obtained a title search of 2171 Main Street. He reviewed the 1949 Deed, which described the 2171 Main Street lot by four relatively straightforward metes and bounds. That description did not correspond to a March 1989 mortgage inspection plan that Myers had received from Yankee Survey Consultants (the "Inspection Plan"). The Inspection Plan also showed the distances of two courses at the southern end of 2171 Main Street as being approximate. Finally, the Inspection Plan showed the 2171 Main Street lot as missing the acreage for what the April 1974 Subdivision Plan depicted as Dillon Lane. In other words, the Inspection Plan treated Dillon Lane as having been conveyed out of the 2171 Main Street lot, and not merely as an easement over that lot.

20. Rather than interrupt the Dillon brothers' transfer of 2171 Main Street to resolve the survey issues, attorney Myers proceeded with the closing. He had two of the Dillon brothers, Daniel and Trustee Dillon, sign a quitclaim deed dated April 7, 1989 (the "April 1989 Deed"). Myers added to the April 1989 Deed Rosemary's name, as a second grantee, after he had prepared the original Deed. The April 1989 Deed described the 2171 Main Street lot the same way that the 1949 Deed did. Myers then added to the April 1989 Deed, after he had prepared the original deed: "For further description see that parcel of land owned by John J. and Anne M. Dillon as shown on [the April 1974 Subdivision Plan] as recorded with the Barnstable County Registry of Deeds in Plan Book 290, Page 43." The April 1989 Deed did not otherwise mention or allude to Dillon Lane or any other easement over 2171 Main Street.

21. Attorney Myers notarized Daniel and Trustee Dillon's signatures on the April 1989 Deed on the same day they signed it, April 7, 1989. A signature purporting to be Cormac's also appears on the April 1989 Deed, but it is not notarized. As of early April 1989, Cormac was in the State of Washington. More about the subject of signatures later.

22. On April 10, 1989, Trustee Dillon and Rosemary appeared before attorney Myers and executed a mortgage in favor of Northern Mortgage Company (the "Mortgage"). The Mortgage didn't adopt the April 1989 Deed's description of the 2171 Main Street lot. Instead, the Mortgage described the lot by reference to the April 1974 Subdivision Plan. The Mortgage also repeated the Inspection Plan's assumption that Dillon Lane had been conveyed out of the 2171 Main Street lot. Hence, two of the lot's Westerly courses describe the lot as being bounded "by Dillon Lane" and its cul-de-sac.

23. On April 10, 1989, attorney Myers recorded the April 1989 Deed and the Mortgage. He also certified to Northern Mortgage, Trustee Dillon and Rosemary their title in 2171 Main Street as described in the Mortgage.

24. Something about the April 1989 Deed and the Mortgage bothered someone. Thereafter, attorney Myers hired Yankee Survey to prepare a perimeter plan. Yankee completed that plan in June 1989. Yankee surveyed the two courses that Yankee had merely approximated in the Inspection Plan. Yankee's June 1989 Plan also showed Dillon Lane as a "Paper Street," one that lay in an alleged easement that straddled the 217l Main Street lot and Daniel and Sharon's lot. The June 1989 Plan also calculated the area of that easement.

25. After receiving the June 1989 Plan, attorney Myers decided to put the Plan and a "confirmatory" deed on record. He didn't discuss with any of the Dillon brothers the changes he planned to make. Instead, he took an original second copy of the original April 1989 Deed, one that Cormac had signed in front of a Washington state notary on April 8, 1989 (the "Cormac Original"). (Recall from ¶ 21 that became the recorded April 1989 Deed bore what was purported to be Cormac's signature, but that signature wasn't notarized.) The Cormac Original was missing Rosemary's name as grantee as well as any reference to the April 1974 Subdivision Plan. (Recall from ¶ 20 that Myers had added both to the deed that Trustee Dillon and Daniel had signed on April 7, 1989.) Myers typed at the top of the Cormac Original "CONFIRMATORY" before "QUITCLAIM DEED." He then whited out the property description on the Cormac Original and typed in: "FOR DESCRIPTION SEE ADDENDUM 'A' ATTACHED HERETO AND MADE A PART HEREOF". Myers also added: "This Confirmatory Deed is recorded to correct the description in Deed as recorded in Book 6692, Page 002." Myers attached to the now-altered Cormac Original "Addendum A." Addendum A contained a new description of the 2171 Main Street lot, one that corresponded to the June 1989 Plan. Addendum A referred to the June 1989 Plan (now recorded) by reference. Myers also included this in Addendum A:

Said parcel contains 245,001 square feet, more or less, of which 19,593 square feet is subject to an easement for Dillon Lane as shown on [the June 1989 Plan].

26. The Cormac Original thus became what this Decision will call the "Confirmatory Deed." After preparing the Confirmatory Deed, attorney Myers contacted Trustee Dillon and Daniel to execute it. They did so on December 14, 1989, and Myers notarized their signatures as of that date. But Myers appears to have noticed around that time another discrepancy: the Confirmatory Deed recited, "WITNESS our hands and seals this 14th day of December, 1989" (Myers had penned in "14th" and "December"), but the notarization of Cormac's signature was dated April 8, 1989. Myers tried to solve that problem by whiting out "14th" and "December" and writing in "8th" and "April."

27. Attorney Myers did not discuss with any of the Dillon brothers his concerns about the boundaries of the 2171 Main Street lot, Dillon Lane, or the changes he made by way of the Confirmatory Deed. Daniel died in 2007, so he did not testify at trial. Neither did Cormac, who died in March 2017. Trustee Dillon first heard of Dillon Lane in 1989, but he did not discuss the matter with Daniel.

28. Subsequent to executing the Confirmatory Deed, Trustee Dillon signed two other documents that repeated the description of the 2171 Main Street lot (and the alleged easement in Dillon Lane) that attorney Myers had inserted into the Confirmatory Deed. The first was a Confirmatory Quitclaim Deed, executed in 1992. Trustee Dillon put that deed on record in connection with a refinancing of 2171 Main Street. In the run-up to that refinancing, someone noticed that Myers had omitted from the Confirmatory Deed Rosemary as the second grantee of the 2171 Main Street lot. The Confirmatory Quitclaim Deed corrected that mistake. The second document that Trustee Dillon signed that repeated Myers's description of the 2171 Main Street lot was a 2010 deed from Trustee Dillon and Rosemary into the John J. Dillon, Jr. Trust. The 2010 deed bears the words "Title Not Examined".

29. Apart from the Confirmatory Deed, the two subsequent deeds described in ¶ 28 above, and the June 1989 Plan, there are no documents of record evidencing a grant by any of the owners of the 2171 Main Street lot, to anyone, of an easement in Dillon Lane.

30. After Daniel died, title to the 2159 Main Street lot passed to his children. In March 2014, Daniel's heirs decided to sell the lot. Its prospective purchasers, Mr. and Ms. Quinn, learned of the April 1974 Subdivision Plan. They decided to purchase the 2159 Main Street lot in two pieces: Mr. Quinn bought what's shown as "Lot 1" on the April 1974 Subdivision Plan, and Ms. Quinn bought what's shown as "Lot 2" on that plan. The stated consideration for Lot 1 was $390,000. The stated consideration for Lot 2 was $1.00. The Quinns borrowed $330,000 to finance the purchase of both lots, but they granted their lender a mortgage only on Lot 1.

31. In June 2015, the Quinns submitted to the Barnstable Planning Board a perimeter plan of Lot 1. That plan depicts what the April 1974 Subdivision Plan calls Dillon Lane. The plan also shows a driveway easement of variable width, running southerly from Main Street over Lot 1 to Lot 2, largely along the western boundary of Lot 1 (the "Driveway Easement"). A note on the plan states:

This plan has been prepared for the purpose of indicating proposed access to Lot 1 and Lot 2 pursuant to § 801-12F [of the Barnstable Zoning Ordinance (the "Zoning Ordinance")]. Both lots will share a common access off Route 6A. Driveway to be constructed to at least the minimum standards required by the Building Commissioner prior to occupancy of any dwelling on Lot 2.

The Planning Board considered the plan, but failed to act on it within 21 days of the date the Quinns filed for its approval. The Quinns recorded the plan in September 2015. In October 2015, Mr. Quinn granted to Ms. Quinn an easement to use the Driveway Easement for access to Lot 2.

32. In February 2016, Ms. Quinn filed an application with Barnstable's Building Commissioner for a permit to construct a single-family dwelling on Lot 2 (the "Proposed Residence").

33. Lot 2 currently is in a RF residential zoning district under the Zoning Ordinance (as are all of the residential properties discussed in this Decision). Section 240-14(A) of the Ordinance lists as a permitted use in the RF District "[s]ingle-family residential dwelling (detached)."

34. The Proposed Residence would be more than 550 feet from the existing dwelling at 2171 Main Street. No exterior lights are shown on the plans for the Proposed Residence. The Proposed Residence has many north-facing windows.

35. At the time of trial, the footprint of the Proposed Residence, plus a large area surrounding the Residence, had been cleared. The topography of the land between the site of the Proposed Residence and 2171 Main Street is not uniform; it rises and falls. Despite the clearing that had been done by the time of trial, dense vegetation shielded the site of the Proposed Residence from the existing dwelling at 2171 Main Street. That vegetation consists of a variety of deciduous trees, conifers, and short and tall shrubs, many of which are evergreens. The trees have a range of maturities and heights. The varying topography causes the tops of tall trees, in low areas, to appear shorter than they actually are, and shorter bushes, in high areas, to appear taller than they actually are. The result is a dense vegetative curtain between the site of the Proposed Residence and the 2171 Main Street residence.

36. Given the distance and the intervening vegetation, it would be difficult to see, from the dwelling at 2171 Main Street, lights operating within the Proposed Residence at any time of year, even lights operating within the second floor of the Proposed Residence. I reject Thomas Houston's testimony concerning Trustee Dillon's alleged harms from "light trespass," and find that the Proposed Residence's lights will not harm the Trustee in any true or measurable respect.

37. I further reject Mr. Houston's testimony concerning Trustee Dillon's alleged loss of privacy owing to construction and occupation of the Proposed Residence. That degree of privacy was lost long ago, when Daniel and Sharon added a second story to their much-closer residence (relative to 2171 Main Street) at 2159 Main Street.

38. The Proposed Residence will generate construction-related noise during its projected eighteen-month construction period, but that noise will lessen once the frame of the Proposed Residence is weather-tight. Three things will prevent that noise from harming Trustee Dillon in any true and measurable respect. The first is the distance between the 2171 Main Street residence and the Proposed Residence. The second is the intervening vegetation. That vegetation will buffer construction noises. Wind passing through that vegetation will also increase ambient noise, which makes other noises less noticeable. Finally, noise from traffic on Route 6A/Main Street, airplanes, and neighborhood ambient noises will mask construction noises to a degree.

39. Construction of the Proposed Residence will generate dust while construction is underway, until surrounding soils are stabilized. Local codes call for stabilizing all exposed soils during construction, generally though the use of water sprays and mulch. Trustee Dillon offered no evidence that Ms. Quinn won't comply with construction codes. Compliance with local codes, the distance between the Proposed Residence and the 2171 Main Street residence, and the extensive intervening vegetation between the residences will prevent fugitive dust from harming Trustee Dillon in any true and measurable respect. Mr. Houston offered no contrary opinion.

40. Construction of the Proposed Residence will generate, within the cleared, unstablized areas of the construction site, stormwater-related erosion. I find that stormwater discharges from the site of the Proposed Residence and erosion will not harm Trustee Dillon in any true or measurable respect, for several reasons. First, the portions of the 2171 Main Street lot that are closest to the site of the Proposed Residence are higher than that site. Other portions of the 2171 Main Street lot (for example, the Dillon residence) are lower than the construction site, but construction plans call for the installation of swales, washed-stone aprons, and siltation fences that will block runoff from reaching downgradient areas on the 2171 Main Street lot. Second, there is substantial intervening vegetation that naturally will block construction-site stormwater runoff and sediments from reaching 2171 Main Street. Third, drainage on both properties is excellent, owing to their soils and the near absence of impervious surfaces.

41. A Title 5-compliant septic system, one requiring no variances, will serve the Proposed Residence. While pathogens might survive treatment by such a system, Trustee Dillon failed to prove that such pathogens would harm him in any true and measurable respect, or in a manner that is special and unique to him, as opposed to the general public. Mr. Houston, who is a part-time health officer for the Town of Norfolk, MA, testified that if he were presented with the Proposed Residence's septic-system plan (Trial Exhibit 47) in his official capacity, he would approve it.

42. I reject as not credible Mr. Houston's testimony to the extent it could be construed as suggesting that construction and occupancy of the Proposed Residence (a) would be injurious, noxious or offensive to Trustee Dillon in any respect; (b) would diminish Trustee Dillon's health, safety or general welfare; (c) would decrease the amenities of the Town; or (d) affect his safety from flooding. I accept Mr. Ojala's testimony that construction and occupancy of the Proposed Residence will have no such effects.

43. The Commissioner issued to Ms. Quinn Building Permit B-2016-366 on April 1, 2016.

44. Trustee Dillon timely appealed to the Barnstable Zoning Board of Appeals (the "ZBA") for review of Ms. Quinn's building permit.

45. Section 240-14(E) of the Ordinance requires a lot in the RF District to have a minimum of 150 feet of "frontage" before one may build a single-family dwelling on that lot. Trustee Dillon argued to the ZBA that Lot 2 lacked sufficient frontage. The ZBA held a hearing on Trustee Dillon's appeal, then issued a decision dated July 6, 2016 (the "Decision") upholding the Commissioner's grant of a building permit.

46. The Decision recounts the history of the 2159 Main Street and 2171 Main Street lots. It notes that counsel for Trustee Dillon and counsel for Ms. Quinn appeared at the ZBA's hearing. The Decision summarizes the procedural history of Trustee Dillon's appeal, the many arguments of his counsel, the many arguments made by Ms. Quinn's counsel, and the ZBA's questions. The Decision then states: "A motion was made by the Board Chair . . . to uphold the Building Commissioner/Zoning Officer's decision (to issue the building permit for 2155 Main Street/ Route 6A), and to deny enforcement action." The Decision reports a 4-1 vote in favor of the motion. The Decision then states: "Ordered In Appeal No. 2016-019, an appeal of the Building Commissioner's denial of a request for enforcement, the Board unanimously voted to uphold the Building Commissioner/Zoning Officer and deny further enforcement action. Appeals of this decision . . . shall be made pursuant to MGL Chapter 40A, Section 17. . . ." The Decision does not indicate which of the many arguments presented to the Board by the parties' attorneys the Board accepted or rejected.

47. Section 240-2 of the Zoning Ordinance provides:

The purpose of this chapter is to promote the health, safety, convenience, morals and general welfare of the inhabitants of the Town of Barnstable, to protect and conserve the value of the property within the Town, to increase the amenities of the Town, and to secure safety from seasonal or periodic flooding, fire, congestion or confusion, all in accord with the General Laws, Chapter 40A, as amended. For this purpose, the height, number of stories, size of buildings and structures, size and width of lots, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of the population and the location and use of buildings, structures and land for trade, marine business, industry, agriculture, residence or other purposes are regulated with the Town of Barnstable as hereinafter provided.

48. Section 240-7(A) of the Zoning Ordinance provides: "Conformance to use regulations. No building shall be erected or altered and no building or premises shall be used for any purpose except in conformity with all of the regulations herein specified for the district in which it is located."

49. Section 240-7(B) of the Zoning Ordinance provides: "Conformance to bulk and yard regulations. No building shall be erected . . . to exceed the height or bulk, or to have narrower or smaller yards or other open spaces than herein required, or in any other manner contrary to the provisions of this chapter."

50. Section 240-10 of the Zoning Ordinance prohibits, in all zoning districts, "[a]ny use which is injurious, noxious or offensive by reason of the emission of odor, fumes, dust, smoke, vibration, noise, lighting or other cause."

* * *

Based on the facts found above, the Court decides the issues as follows.

The first issue for trial – whether Danute and Thomas Quinn enjoy an easement over 2171 Main Street for the benefit of their Lots 1 and 2 – arises in the second of the Dillon/Quinn cases before this Court, Case No. 16 MISC 000438. Trustee Dillon's Complaint in that case has three counts. The first raises the easement issue; the other two counts repeat issues that Trustee Dillon had raised in the first of the Dillon/Quinn cases, Case No. 16 MISC 00417. The Court thus dismissed before trial, without prejudice, the two non-easement counts in Case No. 16 MISC 000438, counts that also had named the Town of Barnstable as a defendant.

Those asserting easement rights have the burden of proving that an easement exists. See Goldstein v. Beal, 317 Mass. 750 , 757 (1940). The Quinns claim that their predecessor in title, Daniel Dillon, acquired an easement in Dillon Lane in three different ways. The Quinns first argue that Daniel obtained an easement by express grant. The Quinns don't identify a document that says, in so many words, that any former or current owner of 2171 Main Street ever granted to Daniel an easement in Dillon Lane. Instead, the Quinns direct the Court to Addendum A to the December 1989 Confirmatory Deed, which states that 2171 Main Street "is subject to an easement for Dillon Lane as shown on [the June 1989 Plan]." The Quinns argue that this language constitutes a grant by the Dillon brothers to Daniel (and, presumably, to Sharon, the co- tenant of 2159 Main Street as of June 1989) of an easement in Dillon Lane.

Whether the Confirmatory Deed grants anyone an easement in Dillon Lane "‘must be found in the presumed intention of the parties'" to that deed, "‘to be gathered from the language of the instruments when read in the light of the circumstances surrounding their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable.'" Labounty v. Vickers, 352 Mass. 337 , 344 (1967), quoting Dale v. Bedal, 305 Mass. 102 , 103 (1940).

The Labounty factors weigh against construing the Confirmatory Deed as granting anyone (let alone Daniel and Sharon) an easement in Dillon Lane. First, the language of the Confirmatory Deed doesn't support a finding that the Deed granted an easement. The Deed uses words indicating a transfer/grant/conveyance/delivery of title only with respect to the Dillon brothers' fee interest in 2171 Main Street. The Deed doesn't use such terms in connection with Dillon Lane. Second, one finds the purported grant in the Deed's Addendum A, a part of the Deed that's principally devoted to describing the metes and bounds of the fee that the Dillon brothers conveyed to Trustee Dillon. By contrast, the body of the Deed – the place where one would expect to find a complete description of what the parties intended to convey – is silent about the purported easement.

Third, the Confirmatory Deed doesn't identify the grantees of the purported easement. A grantor has the right to reserve for herself an easement in property that she's selling to someone else. See generally Crocker's Notes on Common Forms, §§ 872-873 (MCLE 10th ed. 2013). But the Confirmatory Deed doesn't contain any words of reservation. It's possible that one could reserve an easement in property by using the words "subject to," but if one is going to prove conclusively that the parties to a deed intended to do that, one needs to identify whom the parties intended to benefit. See Krinsky v. Hoffman, 326 Mass. 683 , 687-88 (1951) (deed that was "subject to all the rights, restrictions, stipulations and agreements . . . so far as now in force and applicable" did not identify grantor as having such rights; grantor should have included an express reservation in the deed to make that happen). One also can't conclude from the circumstances that the Dillon brothers intended to reserve to themselves an easement in Dillon Lane. The Confirmatory Deed conveyed the alleged servient estate, 2171 Main Street, to Trustee Dillon, so he didn't need an easement in Dillon Road. In June 1989, the second Dillon brother, Cormac, was living in Washington State, and there's no evidence he had any need for an easement in Dillon Lane. And while the third Dillon brother, Daniel, could have benefited from an easement in Dillon Lane, recall that he co-owned his property, 2159 Main Street, with his then-wife Sharon. If the parties to the Confirmatory Deed intended that document to convey an easement in Dillon Lane appurtenant to 2159 Main Street, one would have expected the document to have identified 2159 Main Street as the dominant estate, or at least identified Daniel and Sharon as owners or beneficiaries of the dominant estate. The Confirmatory Deed lacks those details.

The other Labounty factors don't compensate for what the Confirmatory Deed lacks. The circumstances surrounding the execution of the Confirmatory Deed, and the knowledge of the Dillon brothers in June 1989, provide no evidence that they intended to convey to Daniel and Sharon an easement in Dillon Lane. The only living Dillon brother, Trustee Dillon, denied such intent at trial, and his denial isn't a mere self-serving declaration: the evidence shows that attorney Myers never told the Dillon brothers about, or showed them, Addendum A prior to their "signing" the Confirmatory Deed. It's also clear that the Dillon brothers agreed to record the Confirmatory Deed (the first document of record asserting that 2171 Main Street was "subject to" any easement) after they had signed the April 1989 Deed (which didn't mention easements at all) not because they wanted to memorialize a grant or reservation of an easement in Dillon Lane: instead, they wanted to accommodate Trustee Dillon's mortgagee, Northern Mortgage, which wanted on record a different description of the mortgaged property, 2171 Main Street.

The physical conditions of 2171 Main Street and 2159 Main Street likewise don't support the finding of a grant of easement. As of June 1989, both parcels had frontage on Main Street/Route 6A. Daniel and Sharon didn't need the easement to reach Lot 2, as they had dropped their plans to subdivide 2159 Main Street fifteen years previously. The Confirmatory Deed thus did not grant Daniel an easement in Dillon Lane.

The Quinns next assert that Daniel acquired the easement as a consequence of the recording of plans depicting Dillon Lane. The Quinns point to language in Jackson v. Knott, 418 Mass. 704 , 711 (1994), where (quoting Labounty, 352 Mass. at 344) the court observed that "‘[a] plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed.'"

It's true that when a deed references a plan, a court may rely on the plan to understand what the parties intended the deed to convey. That doesn't mean, however, that if a deed refers to a plan, and if that plan (as the June 1989 Plan does) refers to an easement, one must conclude that the deed grants the easement shown in the plan: one still needs evidence that one owning the fee in the purported servient estate intended to grant an easement to the holder of the purported dominant estate. The June 1989 Plan doesn't do that, either standing alone or in conjunction with the Confirmatory Deed. The April 1974 Subdivision Plan likewise doesn't grant anyone an easement: it was put on record by Daniel and Sharon, neither of whom owned 2171 Main Street, and neither of whom had the authority to grant an easement in 2171 Main Street. The April 1974 Subdivision Plan also contains no language granting, or alluding to a document granting, an easement.

The Quinns' final easement theory is that of easement by estoppel: that having put the April 1974 Subdivision and the June 1989 Plans on record, the Dillon family shouldn't be allowed to deny Dillon Lane's existence. The Appeals Court has rejected "general estoppel principles" in determining the existence of easements. Blue View Const. v. Town of Franklin, 70 Mass. App. Ct. 345 , 355 (2007). Instead, since Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 (1989), the court has held

that an easement may be created by estoppel in two ways. First, when a grantor conveys land bounded by a street or way, he, and those claiming under him, are estopped to deny the existence of the street or way, and his grantee acquires rights in the entire length of the street or way as then laid out or clearly prescribed. Second, when a grantor conveys land situated on a street in accordance with a recorded plan that shows the street, the grantor, and those claiming under him, are estopped to deny the existence of the street for the distance as shown on the plan. Thus, in each of those instances, easements by estoppel arise by virtue of the conveyance made by the grantor to the grantee. "Both categories of cases deal with the rights of grantees or their successors in title against their grantors and their successors in title."

Blue View Const., 70 Mass. App. Ct. at 355 (citations omitted), quoting Patel, 27 Mass. App. Ct. at 482.

The Quinns gain something from Blue View and Patel: their deeds to Lots 1 and 2 refer to the April 1974 Subdivision Plan. Blue View and Patel are clear that references in the Quinns' deeds to Dillon Lane estop the Quinns' grantors – that is, Daniel's heirs, his children – from contesting the existence of Dillon Lane. For that reason, the Court must disregard (no matter how truthful) the trial testimony of Teresa Foley, one of Daniel's children and one of the grantors on the Quinns' deeds. Ms. Foley described at trial a conversation with Daniel in 2005, in which he purportedly said that there was "no way" anyone could get to Lot 2. His statement is irrelevant vis a vis Ms. Foley and her siblings: they conveyed Lots 1 and 2 by reference to the April 1974 Subdivision Plan, and under Blue View and Patel, they can't deny what that plan shows.

But the Quinns aren't asking this Court to estop just Daniel's children from denying the existence of Dillon Lane: the Quinns are asking the Court to estop Trustee Dillon too. Blue View and Patel are clear that can't be done, as Trustee Dillon didn't receive his title to 2171 Main Street from Daniel's children. The Quinns attempt to bring this case within Blue View and Patel by leaping back one generation from Daniel's children, arguing that the relevant "grantor" here is Daniel. But Daniel's only conveyance that references Dillon Lane is his 1989 sale of 2171 Main Street to Trustee Dillon: Daniel's title to 2159 Main Street (which passed to his children, and then to the Quinns) doesn't mention Dillon Lane. Blue View and Patel would allow Daniel's grantees in the 1989 sale (first Trustee Dillon in his pre-Trustee capacity, later Dillon and his wife Rosemary, and now the Dillon Trust) to estop Daniel and those taking title through Daniel (including now the Quinns) from denying the existence of Dillon Lane, but Blue View and Patel don't allow estoppel principles to work in reverse.

The Court thus concludes that Lots 1 and 2 do not have an easement over 2171 Main Street within what the April 1974 Subdivision Plan depicts as Dillon Lane. Judgment will enter in favor of Trustee Dillon, and against the Quinns, on Count I of Trustee Dillon's Complaint in Case No. 16 MISC 000438.

The second issue for trial – whether Trustee Dillon has standing to appeal Ms. Quinn's building permit – arises in first of the Dillon/Quinn cases, Case No. 16 MISC 000417, which is Trustee Dillon's appeal from the ZBA's Decision upholding that building permit. Trustee Dillon claims that Decision was both insufficiently specific and wrong on the merits (the parties' third trial issue). Ms. Quinn argues with the ZBA's support that the Court may not reach Trustee Dillon's claims because he lacks standing. The Court agrees.

The parties agree on the governing principles. Chapter 40A, § 17 grants private individuals the right to challenge zoning-board decisions only if those individuals are "persons aggrieved" by the decision, meaning one who "suffers some infringement of his legal rights." Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996). As an abutter to Lot 2, Trustee Dillon enjoys a rebuttable presumption that he has standing to challenge any ZBA decision concerning Lot 2. See id. There are two ways, however, that an abutter's opponent may overcome the presumption. One is to show that the abutter's interests are not among those that the Zoning Enabling Act or the local zoning bylaw protects. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 120 (2011). This first type of challenge usually doesn't involve evidentiary issues, as the central question is that of the "fit" between the abutter's claims of injury and the interests that state or local zoning laws protect.

The second way one may overcome an abutter's presumed standing under c. 40A, § 17 is to challenge the abutter's claims of injury. That effort starts with the abutter's opponent presenting admissible evidence that challenges the abutter's specific claims of infringement of his or her legal rights. See Watros v. Greater Lynn Mental Health and Retardation Association, Inc., 421 Mass. 106 , 111 (1995). Once the abutter's opponent presents such evidence, the burden shifts to the abutter "to demonstrate that she was a person aggrieved." Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 808 (2009). Hoffman describes the required demonstration as follows:

"[A] plaintiff is not required to prove by a preponderance of the evidence that his or her claims of particularized or special injury are true. 'Rather, the plaintiff must put forth credible evidence to substantiate his allegations. It is in this context that standing is essentially a question of fact for the trial judge.'" The idea of putting forth "credible evidence" of a particularized injury is equivalent to establishing a "plausible claim" of that injury. . . . The threshold question of whether [the plaintiff] has standing is different than the ultimate merit of [the plaintiff's] allegations. Thus, the relevant question [is] whether [the plaintiff has] put forth credible evidence of a particularized injury to support her claimed status as a person aggrieved.

Id. at 809, quoting Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 & n.13 (2005). The demonstration must include what Butler calls "quantitative" and "qualitative" proof of injury:

"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." Butler, 63 Mass. App. Ct. at 441.

Ms. Quinn and the ZBA challenge Trustee Dillon's standing using every method allowed. They first claim that Barnstable's Zoning Ordinance doesn't protect any of the interests that Trustee Dillon claims Ms. Quinn's project will infringe. Those interests are "loss of privacy," freedom from construction noise, freedom from construction-related erosion and stormwater runoff, freedom from groundwater contamination, and freedom from "light trespass." (For a time, Trustee Dillon also claimed that Ms. Quinn's project would subject him to construction- related dust. His expert, Thomas Houston, offered no opinion at trial about dust impacts. The Court thus treats the issue as waived.)

The Ordinance does not protect any of the foregoing interests. Trustee Dillon's "privacy" claims have nothing to do with construction or occupancy of the proposed Quinn residence. Instead, the Trustee asserts he already has lost privacy because Quinn has cleared parts of her lot (in anticipation of construction) and hence future residents of that lot will be able to see more of what's happening in the Dillon residence. That claim is too indirect to claim protection under the Ordinance: the Ordinance doesn't regulate tree clearing. Trustee Dillon's particular claims of loss of privacy thus do not give him standing under c. 40A, § 17 to challenge Quinn's building permit. See Wolff v. Town of Marshfield Zoning Bd. of Appeals, 24 LCR 81 , 84 (2016).

Next is Trustee Dillon's interest in not hearing construction noise. While one of the Ordinance's purposes is "to promote the health, safety, convenience . . . and general welfare of the inhabitants of the Town of Barnstable," and while noise "may be viewed as a factor affecting the general welfare, health and safety of . . . inhabitants," Bloomgarden v. Considine, 25 LCR 490 , 495 (2017), the Ordinance doesn't restrict noise (including temporary construction noise) from as-of-right, residential uses of property. That distinguishes this case from Bloomgarden, Tucker v. Stein, 20 LCR 609 (2012), and Roma, III Ltd. v. Battistelli, 24 LCR 717 (2016), where the disputed projects required special permits or a variance, and the zoning regulations of all three municipalities allowed permit-granting authorities to consider the noise associated with an applicant's project and regulate that noise if reasonably necessary. That's not the case here.

The Ordinance similarly lacks provisions that protect Trustee Dillon's interests in avoiding construction dust, construction erosion, stormwater runoff, groundwater contamination, and "light trespass." The Ordinance regulates these impacts only indirectly, via setback and lot- size requirements. While abutters successfully have claimed standing to challenge a building permit on the grounds of a project's drainage or lighting impacts, they've done so only when they've been able to point to violations of such dimensional regulations. See, for example, Miller v. Zoning Board of Appeals of Haverhill, 20 LCR 262 , 266-67 & n. 10 (2012); Geraci v. City of Waltham, 21 LCR 607 , 611 (2013). Ms. Quinn's project complies with the Ordinance's setback and lot-size requirements. The Ordinance doesn't otherwise regulate construction activities, drainage, or "light trespass." Trustee Dillon thus cannot use these harms as a basis for standing to challenge Ms. Quinn's building permit. See 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 702 (2012) ("An abutter can have no reasonable expectation of proving a legally cognizable injury where the Zoning Act and related zoning ordinances . . . do not offer protection from the alleged harm in the first instance.").

Even if Trustee Dillon could establish that his interests are among those that the Zoning Enabling Act or the Ordinance protects, Ms. Quinn and ZBA presented evidence at trial that challenged each of Trustee Dillon's claims of injury. Accordingly, he bore the burden at trial of providing "quantitative" and "qualitative" proof of those injuries. See Butler, 63 Mass. App. Ct. at 441. Trustee Dillon offered insufficient "quantity" evidence with respect to any of his claims. Trustee Dillon offered no evidence of what could be seen on his property from the proposed Quinn residence (his "loss of privacy" claim). His claims of "light trespass" fail because his expert, Mr. Houston, said that light from the Quinn residence would be visible only from the "Dillon property," meaning the forested, unoccupied thicket closest to the Quinn residence. He offered no testimony as to what light, if any, would be visible from the Dillon residence itself. Trustee Dillon's construction-noise claims fail because Houston could not quantify the level of noise that would reach the Dillon residence or the frequency with which the Dillon residence would experience harmful noise. Trustee Dillon's erosion claims fail because Houston did not quantify the amount of stormwater or sediment that he foresees reaching the Dillon property. Trustee Dillon's groundwater contamination claims fail after Mr. Houston admitted (but only after persistent cross- and re-cross-examination) that he would have approved Quinn's Title V- compliant septic system.

Trustee Dillon's evidence also lacked, in many respects, sufficient "quality." His expert, Mr. Houston, gave demonstrably unbelievable testimony concerning Trustee Dillon's alleged loss of privacy, "light trespass," erosion and stormwater, and groundwater contamination. That testimony undercut Houston's potentially more reliable testimony on construction noise, testimony that had the benefit of partial corroboration from the Quinns' witness, Daniel Ojala. (Trustee Dillon's "noise" testimony nevertheless still fails on account of lack of "quantitative" evidence of harm.)

The Court thus holds that Trustee Dillon lacked standing initially under c. 40A, §§ 8 and 15, to appeal Ms. Quinn's building permit to the ZBA, and lacks standing under c. 40A, § 17, to appeal to this Court the ZBA's affirmance of the issuance of the Quinn building permit. The Court thus will enter judgment in FAVOR of Ms. Quinn and the ZBA in Case No. 16 MISC 000417, and DISMISS Trustee Dillon's complaint in that action for lack of standing. Because Trustee Dillon doesn't have standing to have challenged Ms. Quinn's building permit, the Court will not rule on the Trustee's claims that the ZBA's Decision is insufficiently specific or substantively wrong. Thus, for the moment, Ms. Quinn's building permit stands. The effect of this Decision's other declaration, that Quinn lacks an easement across 2171 Main Street to reach Lot 2, is left to the Quinns and local authorities, at least for now.

Judgments to enter accordingly.