NOREEN MAHER, PERSONAL REPRESENTATIVE OF THE ESTATE OF MARY DALY v. CITY OF WALTHAM.

On February 14, 2017, Plaintiff Noreen Maher (Maher), Personal Representative of the Estate of Mary Daly (Daly Estate), brought this action against Defendant City of Waltham (City) pursuant to G. L. c. 240, § 14A, G. L. c. 185, § 1 (j ½), and G. L. c. 231A. The complaint seeks a determination as to the validity and extent to which the term "Private Way," as used in Chapter 17, Article V, Sec. 17-78 of the Waltham Zoning Code (Code), applies to Clark Terrace that abuts land owned by the Daly Estate. [Note 1] The City answered the complaint on March 17, 2017.

The parties appeared for trial on September 13, 2018. After being sworn, a stenographer recorded and transcribed the proceedings. Maher testified on behalf of the Daly Estate, and the City called Joseph Orlando (Orlando) as its sole witness. By agreement, the parties introduced into evidence Exhibits numbered 1 through 36 and Exhibit 38. I sustained the City's objection to the admissibility of exhibit 37. During trial, Exhibits 39 and 41 were admitted into evidence. Exhibit 40 was marked for identification only. At my request, the parties submitted on December 14, 2018, a copy of a section of the Code not part of the record, and that section was marked as Exhibit 42. Additionally, the parties offered chalks marked A through F. I took a view of Clark Terrace and the surrounding area in the presence of counsel upon the completion of the trial. [Note 2]

After the filing of the trial transcript, the parties made their final written submissions between October 29 and November 2, 2018. The parties gave their closing arguments on November 15, 2018.

I. FACTS

Based on the facts stipulated by the parties; the documentary and testimonial evidence; my assessment as the trier of fact of the credibility, weight, and inferences reasonably to be drawn from the evidence admitted at trial; and my observations at the view, I find the facts as follows: [Note 3]

1. Maher is the duly appointed personal representative of the estate of Mary Daly, Middlesex County Probate Docket #09P3220.

2. The City is a duly constituted municipal corporation with a principal address of 610 Main Street, Waltham, Massachusetts.

3. The Daly Estate owns the property known as 52 Clark Lane, which consists of four separate lots shown on Sheet 47 of the City of Waltham Assessor's plans as Lots 22, 24, 26, and 28. Exs.1, 38 ¶ 1. [Note 4] Lot 22 is the only lot at issue in this action. Ex. 38 ¶ 3.

4. Benjamin Worcester (Worcester) was the former owner of a tract of land that was divided into various lots by a subdivision plan entitled "Plan of a Portion of the Benjamin Worcester Estate" dated November 1890, and recorded on June 20, 1891, in Middlesex Southern District Registry of Deeds (Registry) in plan book 68, plan 38 (B of 2) (1891 Plan). [Note 5] Exs. 2, 38 ¶ 4.

5. All lots created by the 1891 Plan were sold by Worcester or his estate. [Note 6] Ex. 38 ¶ 5.

6. The 1891 Plan shows that Lots 16, 18, 20, and 22 all had one bound along what was designated as "Proposed Right of Way" (Subject ROW). Ex. 2.

7. In addition to the Subject ROW, the 1891 Plan depicted the location of Clark Lane, two other areas designated as "Proposed Right of Way," one area designated as "Proposed St.," and one area designated as "Proposed Alley." [Note 7] Ex. 2.

8. The 1891 Plan shows Clark Lane and "Proposed St." as each being forty feet wide but does not indicate the width of the Subject ROW. Ex.2.

9. Lot 20 was the first parcel to be conveyed to a third party pursuant to a deed dated November 25, 1891, recorded at the Registry in book 2083, page 481 (Initial Lot 20 Deed). Exs. 3, 38 ¶ 7.

10. In pertinent part, the legal description for Lot 20 in the Initial Lot 20 Deed reads as follows: "running northeasterly on said lot No. 18 about ninety[-]five feet to a proposed right of way shown on said plan and to be known as Clark Terrace; thence running northwesterly on the southwesterly side of said Clark Terrace about sixty[-]three feet to lot No. 22 . . . ." The Initial Lot 20 Deed granted "a right of way through said Clark Terrace and Clark Lane to Bacon Street." Ex. 3. Lot 20 does not abut or front on Clark Lane at any point. Ex. 2.

11. The grantors of the Initial Lot 20 Deed also stated, "we hereby agree that the tract of land enclosed between said Clark Terrace and Clark Lane as shown on said plan shall be forever kept open as a park." Ex. 3.

12. Lot 22 was conveyed by a deed dated April 9, 1892, recorded at the Registry in book 2115, page 131 (Initial Lot 22 Deed). The running description for Lot 22 began "on the southwest side of a private way known as Clark Terrace" and the last bound read "thence southerly on Clark Lane and Clark Terrace to the point of beginning." The Initial Lot 22 Deed also granted "a right of way for all purposes through said Clark Terrace." Exs. 4, 38 ¶¶ 11-13.

13. The Initial Lot 22 Deed does not include the linear distance of Lot 22's frontage on Clark Lane and Clark Terrace. Ex. 4.

14. All subsequent deeds conveying Lot 22 described Clark Terrace as a "private way known as Clark Terrace." Each such conveyance included "all rights of way appurtenant to said parcel." Ex. 38 ¶ 14.

15. In a deed dated February 10, 1893 (1893 Deed), Lot 18 and Lot 72 were conveyed together as the third conveyance of lots created by the 1891 Plan. One of the bounds of Lot 18 in the 1893 Deed was described as "running easterly on Clark Terrace by a curved line about 35 feet to lot No. 16 . . . ." Exs. 5; 38 ¶¶ 15, 16. Neither Lot 18 nor Lot 72 abuts Clark Lane at any point. Exs. 2, 38 ¶ 17.

16. Between 1893 and 1905, Lots 18 and 72 were transferred together among Worcester family members on three occasions, always bounded by Clark Terrace. Ex. 38 ¶ 18.

17. None of the conveyances of Lot 18 from 1893 through 1905 included easement rights over Clark Terrace; rather, it was used as a bound. Ex. 38 ¶ 19.

18. The conveyances of Lot 18 from 1893 through 1905 contained the phrase "with all the privileges and appurtenances" as stated in prior deeds. Ex. 38 ¶ 20.

19. Section 21 of G. L. c. 83 grants authority to a city council to lay out private ways for use of one or more inhabitants. Ex. 38, ¶ 21

20. Following the enactment of St. 1909, c. 231, the City adopted a Board of Survey to exercise authority to accept plans for laying out ways that, among other purposes, would allow the laying out of sewer, water, and gas lines. Exs. 10, 38 ¶ 22.

21. In 1911, the Board of Survey adopted specifications for accepting street layout plans in Waltham (layout specifications). Exs. 11, 38 ¶ 23.

22. The layout specifications were in place in 1913. Ex. 38 ¶ 24.

23. In April 1913, the Estate of Benjamin Worcester petitioned the Board of Survey for approval for the estate to "lay out, locate or construct a street or way . . . designated as Clark Lane" (Estate petition). Ex. 12.

24. The plan submitted to the Board of Survey in April 1913 entitled "Plan and Profile of Clark Lane" in connection with the Estate petition included measurements, elevations, proposed widths and grades of Clark Lane and Clark Terrace (1913 Plan and Profile). Exs. 12, 38 ¶ 25.

25. After being approved by the Board of Survey and the Mayor of the City, the 1913 Plan and Profile was filed in the office of the City Engineer on May 9, 1913. Exs. 12, 38 ¶ 26.

26. Lot 22 is shown on the 1913 Plan and Profile as being the property of James R. Carter, Trustee. Exs. 12, 38 ¶ 27.

27. The 1913 Plan and Profile depicted Clark Terrace as having a width of sixteen and one half feet. Ex. 12. [Note 8]

28. Also in 1913, the City filed a plan entitled "Plan and Profile of Clark Lane Sewer" (1913 Sewer Plan). Exs. 13, 38 ¶ 28.

29. The list of abutters assessed for the sewer include Lot 22 based upon Lot 22 having an eighty-foot border on Clark Lane and Clark Terrace. Ex. 38 ¶ 29.

30. Lot 22 is shown on the 1913 Sewer Plan as being a separate lot from Lots 24, 26, and 28. Exs. 13, 38 ¶ 30.

31. The City Council conducted a taking of 507 feet of Clark Lane in 1937 and laid it out as a public way (taking). Exs. 16, 18, 38 ¶ 31. [Note 9]

32. On the plan incorporated into and recorded with the taking (1937 Plan), Clark Terrace is labeled as "Clark Terrace Private Way." Exs. 17; 38 ¶ 32; 41. [Note 10]

33. Lot 22 is shown on the 1937 Plan as owned by Benjamin A. Whittemore and abutting "Clark Terrace Private Way." Exs. 17, 38 ¶ 33.

34. Clark Terrace is used as a bound in the current deeds for Lots 18, 20, and 22. Ex. 38 ¶ 34.

35. In 1970, Orlando and Ailene C. Orlando acquired title to Lot 16, which is known as 30 Clark Lane. [Note 11] Ex. 30. The deed conveying Lot 16 describes it as bounded on Clark Lane "about forty-seven and 5/10 (47.5) feet" and bounded on Clark Terrace "about seventy-nine (79) feet." In order to access his property by motor vehicle, Orlando uses a driveway leading directly from Clark Lane to his garage on Lot 16.

36. By deed dated July 20, 1999, David P. Mosman and Michelle L. Mosman (collectively, Mosmans) purchased Lot 20 and a portion of Lot 18, together known as 38 Clark Lane (Mosman Lot). Exs. 27, 28.

37. The Mosmans reside on the Mosman Lot. The sole access from Clark Lane to the Mosman Lot is over Clark Terrace. Ex. 38 ¶ 38.

38. The Mosmans's mailbox is at their home. A mail truck travels the length of Clark Terrace when mail is delivered to the Mosmans and the Orlandos, and it parks as needed on Clark Terrace.

39. A City Council order dated August 7, 2000, authorized the paving of the private portion of Clark Lane between numbers 31 and 158. [Note 12] Ex. 25.

40. The entire length of Clark Terrace was paved in September 2002 at the same time as both the public and private portions of Clark Lane. Clark Terrace is listed on the City's list of resurfaced roads as a private way. Exs. 26, 38 ¶ 36. [Note 13]

41. The Mosman Lot (38 Clark Lane) and Lot 22 (52 Clark Lane) were included in the asphalt resurfacing. Both lots abut Clark Terrace. Ex. 38 ¶ 37.

42. In 2013, the Daly Estate sought approval from the City for Lots 22, 24, 26, and 28 to be considered buildable lots under "Old Lot Status" pursuant to Section 4.2181 of the Code. Ex. 38 ¶ 2.

43. In a letter dated July 15, 2013, Patrick Powell, the City's Acting Superintendent of Buildings (Acting Superintendent), approved "Old Lot Status" for Lot 22. [Note 14] Ex. 20.

44. On December 18, 2013, the Acting Superintendent wrote to an attorney stating:

[t]his memo is to clarify our recent discussion pertaining to frontage for [Lot 22] and whether it is in fact located on an accepted public or private way. As you know, the documents and information presented and uncovered during the opinion phase for "old lot" status did not give sufficiently clear evidence to make a final decision as to such frontage. A ruling could be made either way.

For this reason and for the benefit of all concerned, this office is requiring that prior to a decision to issue a building permit for this lot, you must seek a final ruling i.e. "declaratory judgment" through the Land Court.

Ex. 24.

45. The Assessor's Map labels Clark Terrace as "PVT." Ex. 1.

46. I credit the testimony of Maher as to activities that took place along Clark Terrace during her childhood until 1965. Specifically, Maher testified that:

a. trucks parked on Clark Terrace to make milk, egg, and oil deliveries to 52 Clark Lane, which includes Lot 22. Milk and egg deliveries were also made to nearby properties on the opposite side of Clark Lane while the truck was parked on Clark Terrace. Similarly, Charles Chip parked on Clark Terrace and delivered chips to 52 Clark Lane and to a house on the opposite side of Clark Lane;

b. delivery trucks traveled the entire length of Clark Terrace;

c. the mail truck would park on Clark Terrace, and the driver would leave the truck and deliver mail on Clark Terrace and on Clark Lane; and

d. the snow plow would come up Clark Lane, push the snow collected against a big rock at the end of the driveway at 52 Clark Lane, continue around Clark Terrace, and go back out onto Clark Lane.

47. I credit the testimony of Orlando that prior to September 2002, Clark Terrace was unpaved and was muddy during winter months.

48. Clark Terrace is not listed on the snow plowing contract for the year 2013 nor the trash pickup contract for the year 2016, both of which are in effect through the end of fiscal year 2019. Ex. 38 ¶ 40.

46. Trash and leaves are only picked up on Clark Lane, not along Clark Terrace. Ex. 27 ¶ 6.

47. Neighborhood children on occasion ride their bicycles around Clark Terrace. Orlando has driven around Clark Terrace when he found it convenient, but such usage has been infrequent.

49. Since 1970, Clark Terrace has never been closed.

II. BURDEN OF PROOF

The threshold question to answer is who has the burden of proof in this matter. Not surprisingly, each party claims the other has that burden. Maher claims that the ambiguity of the term "private way" in the Code entitles her to the most favorable interpretation on her behalf. In support of her argument, Maher relies principally on Jenkins v. Pepperell, 18 Mass. App. Ct. 265 (1984). In Jenkins, the issue was the determination of an uncertain zoning boundary. Where the town failed to offer extrinsic evidence permitting the judge to choose among three possible interpretations, "[t]he proper remedy . . . [was] . . . the fixing of the boundary in accordance with the interpretation most favorable to the landowner." Id. at 270.

I do not view the issue as one of ambiguity; rather, it is a case of omitting a definition for a phrase used in the Code. This is not an uncommon problem with zoning enactments throughout the Commonwealth. In bringing this action, Maher seeks a determination under Section 14A as to "the extent to which [the Code] affects a proposed use, enjoyment, or development of" Lot 22. Consequently, the burden is on the landowner to show that the Code does not extend to her activities. See Amberwood Dev. Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205 , 209 (2005). Thus, the burden belongs to the Daly Estate.

III. DISCUSSION

"In the absence of an express definition, the meaning of a word or phrase used in a local zoning enactment is a question of law . . . and is to be determined by the ordinary principles of statutory construction." Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). Accord Tanner v. Board of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004). Courts "derive the words' usual and accepted meanings from sources presumably known to the [Code's] enactors, such as their use in other legal contexts and dictionary definitions." Commonwealth v. Zone Book, Inc., 372 Mass. 366 , 369 (1977).

Although he approved "Old Lot Status" for Lot 22 in July 2013, the Acting Superintendent changed his mind by December 2013 and stated that there was insufficient evidence to make a final decision as to frontage. [Note 15] While "frontage" is a term not used in Section 4.2181 of the Code, the City maintains that the minimum frontage requirement under Section 3.7 is forty feet in the Residential-2 zoning district where Lot 22 is located. Section 2.323 defines "Frontage" as "[t]he width of a lot measured along a public street or private way." The Code, however, provides no definition of "private way."

The central issue before me is whether Clark Lane is a right of way in the nature of an easement or a private way that may be considered frontage under the Code. The City claims that the intent of the grantor in conveying Lot 22 was to create an easement over an area designated on the 1891 Plan as Proposed Right of Way, i.e. Clark Terrace. According to the City, the fact that the initial conveyance of Lot 22 on November 25, 1891, included a grant of a right of way over Clark Terrace should settle the issue.

The Daly Estate insists that the language granting a right of way over Clark Terrace is not a conventional easement in that there is no dominant or servient estate tied to the grant. Not only did the Initial Lot 22 Deed include a grant of a right of way over Clark Terrace, it also granted a right of way over Clark Lane, which later became partially a public way and partially a private way open for use by the general public.

The language of the initial deeds changed from the first conveyance to the third. The first deed of Lot 20 in November 1891 described the lot as bounded by "a proposed right of way shown on said plan and to be known, as Clark Terrace" and granted "a right of way through said Clark Terrace and Clark Lane to Bacon Street." The first deed of Lot 22 in April 1892 began the description as "beginning at the northeast corner of the premises on the southwest side of a private way known as Clark Terrace" and included "a right of way for all purposes through said Clark Terrace." When the first grantee of Lots 18 and 72 took title in February 1893, the deed contained no grant of a right of way or easement. Rather, the deed referenced Clark Terrace as a bound for Lot 18 and described Lot 72 as abutting a different proposed right of way. The grantors made no reference to Clark Terrace as either a proposed right of way or a private way. Without a right of access over Clark Terrace, Lot 18 would be landlocked. [Note 16]

It is difficult, if not impossible, to know over 100 years later what the grantors specifically intended when they executed the first few deeds for the lots shown on the 1891 Plan. This is particularly so when the first two deeds at issue here contained both language granting rights of way and also referring to a Clark Terrace as a bound for those lots. As described above, the language changed from a grant of a right of way "though said Clark Terrace" in the Initial Lot 20 Deed to no grant at all by the time of the deed of Lot 18.

There is no language in the deeds for Lots 20 and 22 whereby the various Worcester grantors reserved the fee in Clark Terrace. Even before the enactment of G. L. c. 183, § 58 (derelict fee statute), "a grantor's designation and reservation of a strip as a proposed street on a plan incorporated into a deed does not prove his intent to reserve the fee in the strip." Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 244 n.7 (1992). In fact, "the common law included a presumption that 'a deed bounding on a way conveys the title to the centre of the way if the grantor owns so far.'" Rowley v. Massachusetts Elec. Co., 438 Mass. 798 , 803 (2003), quoting Gould v. Wagner, 196 Mass. 270 , 275 (1907).

The derelict fee statute

establishes an authoritative rule of construction for all instruments passing title to real estate abutting a way, whether public or private and whether in existence or merely contemplated (so long as it is sufficiently designated . . . ). The statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor.

Tattan, supra, at 242-243. The provisions of the derelict fee statute are retroactive. See St. 1971, c.684, §2; St. 1973, c. 185, §2.

I find and rule that Clark Terrace was sufficiently designated by the 1891, Plan and each of the abutters own to the centerline of that way. "[W]hen a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such street or way. . . ." Casella v. Sneirson, 325 Mass. 85 , 89 (1949).

There is other evidence pointing to the conclusion that Clark Terrace is a private way. Although entitled "Plan and Profile of Clark Lane," the 1913 Plan and Profile also included City layout specifications for Clark Terrace as well as Clark Lane. On the 1913 Sewer Plan, Lot 22 is shown as a separately owned lot from the abutting parcels. The list of abutters assessed for the sewer included the owner of Lot 22 based on an eighty-foot border on Clark Terrace and Clark Lane. On the 1937 Taking Plan pertaining to a portion of Clark Lane becoming public, Clark Terrace is depicted as a "Private Way."

More recently, the City's list of resurfaced roads includes the entirety of Clark Terrace as well as the public and private portions of Clark Lane as of October 1, 2002. Since that time, Clark Terrace has not been closed to the use of anyone who might wish to use it for passage.

The City claims bias regarding Maher's testimony that, during the years she lived on Clark Lane, the surface of Clark Terrace was paved. Because Maher has a financial stake in the outcome of this litigation, the City insists I should discredit her testimony regarding the condition of Clark Terrace and the uses of it. The outcome of this decision, however, does not rest on Maher's testimony.

The interpretation of the term "private way" in the Code was addressed in an earlier Land Court decision. In 20 Seyon Street, LLC v. City of Waltham, the court (Grossman, J.) faced the same question as presented in the case at bar: whether Seyon Street was a private way and thus could be considered frontage under the Code. In reaching its decision, the court relied upon Chapter 17 of the Waltham General Ordinances, entitled "Sidewalk, Public Ways, Public Places, Private Ways and Parking Areas." Within Chapter 17, Article V, Sec. 17-78 defined "Private Ways" as "[a]ny way which is not a public way but which has been opened to public use for six years or more." The court found that

[d]espite the absence of a definition of 'private way' in the Zoning Code, Seyon Street would still be deemed a private way for the critical purposes enumerated in the City's own General Ordinances [A] way's private status, for these purposes, springs into existence by virtue of its availability for public use over the prescribed time period.

16 LCR 611 , 616 (2008). Judge Grossman rightly determined that the Waltham General Ordinance is an appropriate legal context to use to interpret the term "private way," particularly where it is the City's own enactment. See Zone Brook, Inc., supra, at 369.

The judgment of the court in 20 Seyon Street, LLC is a sound one, and I will follow it. Even without considering the evidence of uses of Clark Terrace prior to 2002, the facts of this case are uncontroverted that Clark Terrace has been open to public use without obstruction or interference for the past sixteen years. Thus, it falls within the City's own definition of a "private way."

CONCLUSION

Based upon the foregoing, I find and rule that Clark Terrace is a "private way" for the purposes of Chapter 17, Article V, Sec. 17-78 of the Waltham General Ordinances, and for the definition of "frontage" contained in Section 2.323 of the Code.

exhibit 1