JOHN STACK and CAROL STACK v. ANTHONY D'AMBROSIO, as Trustee of the Lot Two Gray Street Realty Trust.

In July 2002, plaintiffs John and Carol Stack agreed to buy a home at 102 Gray Street in Billerica, Massachusetts. The sellers of the 50,000-square-foot property were Michele DeSimone and Anthony D'Ambrosio, in their capacities as trustees of the 102 Gray Street Trust.

The Stacks understood that DeSimone and D'Ambrosio, through a separate trust, owned an 8.5-acre parcel ("Lot 2") that abutted the west side of 102 Gray Street. An unbuilt, 50-foot-wide "paper street," Capodilupo Lane, bounded the north side of 102 Gray Street. The Lane connected Lot 2 to Gray Street; one could dream oneself a thousand times around the world but not get out of Lot 2 except over Capodilupo Lane.

In July 2002, DeSimone and D'Ambrosio were dreaming of developing Lot 2, and they wanted to make their dreams as real as anything. They wanted no interference from the Stacks. What's more, DeSimone and D'Ambrosio planned to use the west side of the 102 Gray Street property to manage stormwater runoff from Lot 2. DeSimone and D'Ambrosio thus insisted that the Stacks sign a rider to the parties' purchase and sale agreement. The rider said:

1. The [Stacks] understand and acknowledge that the Sellers are in the process of subdividing a contiguous parcel and that they agree not to interfere with said subdivision.

2. The [Stacks] further acknowledge that prior to sale, Seller [sic] may grant certain easement [sic] upon the property to serve the subdivision of the contiguous parcel. Sellers represent and warrant that any easements granted will not interfere with [the Stacks'] use of the property as a single-family residence, nor will said easements interfere with [the Stacks'] intention to seek permission to construct an in-law apartment upon said property.

Since July 2002, Lot 2 has sat aside Gray Street, empty, but defendant D'Ambrosio would do anything to fill it in. D'Ambrosio is the sole trustee of the Lot Two Gray Street Realty Trust. (When this decision hereafter refers to "Trustee D'Ambrosio" or the "Trustee," it's in connection with only that trust.) In March 2017, the Town of Billerica's Zoning Board of Appeals granted the Trustee a comprehensive permit under G.L. c. 40B, §§ 20-23. The permit allows the Trustee to build Graystone Estates. Graystone will consist of twenty four-bedroom homes. Five will be restricted as "affordable" units, meaning they'll be sold to households whose annual income does not exceed 80% of area median income, adjusted for household size. The permit also obligates the Trustee to build Capodilupo Lane, so as to give all twenty Graystone homes access to Gray Street.

The Stacks wish it were different. They sued Trustee D'Ambrosio in this Court in April 2017. They claim they own the land beneath a part of proposed Capodilupo Lane, and they pray for a declaration to that effect under the "quiet title" statute, G.L. c. 240, §§ 6-10. The Stacks also contend that Capodilupo Lane was intended to serve a maximum of four homes, and that Graystone Estates will "overburden" the Lane by building twenty. Trustee D'Ambrosio denies that (although in his counterclaim in this case, he seeks a declaration that he has the right to use Capodilupo Lane only for "all purposes for which ways in the Town of Billerica may be used"). The Trustee further argues that the Stacks waived all of their claims when they signed the July 2002 rider, and even if they didn't, they released them via another agreement they signed in June 2003.

The Court decided several of the issues in May 2018, after the parties had filed cross-motions for summary judgment. The Court ruled that (a) the Stacks own that portion of Capodilupo Lane that abuts the 102 Gray Street property; (b) while they released many claims in June 2003, they didn't forfeit at that time their rights to quiet their title in Capodilupo Lane or to claim overburdening; and (c) the Stacks' fee in the portion of Capodilupo Lane that abuts 102 Gray Street is subject to an easement appurtenant to Lot 2 for access.

The parties' remaining claims and defenses proceeded to trial before this Court on July 19 and 20, 2018. That trial included a view of 102 Gray Street and Lot 2 on July 12, 2018. Based on the parties' agreed facts, the testimony and evidence received at trial, the Court's view, and the arguments of counsel, the Court finds the following facts:

1. In November 1998, the members of a Billerica family, the Capodilupos, obtained an endorsement from the Billerica Planning Board of a plan showing the division of a 12.83-acre lot on Gray Street in Billerica into two lots, Lot C1 and Lot D1 (the "1998 Plan"). The 1998 Plan is recorded at the Middlesex County (North) Registry of Deeds (the "Registry") in Plan Book 198, Page 138. Both lots fronted on Gray Street.

2. In January 1999, members of the Capodilupo family conveyed to Vincent G. Capodilupo, as Trustee of the Capodilupo Family Trust, the parcel comprising Lots C1 and D1. Trustee Capodilupo immediately conveyed Lot C1 (also known as 100 Gray Street) to himself and his wife.

3. In 1999, Trustee Capodilupo applied to the Planning Board for approval of a definitive subdivision of Lot D1. The Trustee's proposal included a plan (the "1999 Plan") that called for dividing Lot D1 into two lots, Lot 1 (today's 102 Gray Street) and Lot 2. The entire property was in a "rural residence zone" under the Town's zoning bylaws. As of 1999, proposed Lot 1 already had a house on it; proposed Lot 2 was vacant.

4. Proposed Lot 1 occupied all of Lot D1's Gray Street frontage except its northernmost 50 feet. Trustee Capodilupo set aside the latter area for a new road that would provide access to 8.52-acre Lot 2. Trustee Capodilupo dubbed the road "Capodilupo Lane." Trustee Capodilupo placed Capodilupo Lane as far as he could from the existing residence on Lot 1.

5. The 1999 Plan sets off Capodilupo Lane in the same way it sets off the boundaries of Lots 1 and 2. The 1999 Plan contains no notes regarding the ownership of Capodilupo Lane, or whether it is a part of Lot 1, Lot 2, neither lot, or both.

6. The Planning Board approved Trustee Capodilupo's subdivision in January 2000, via a Certificate of Approval. The Planning Board attached several conditions to its approval: (a) once the 1999 Plan was endorsed, "there shall be no further subdivision of land or adjusting of lot lines unless approved under the Subdivision Control process as outlined under MGLC 41 Section 81 U"; (b) Lot 2's developer would be allowed to build within Capodilupo Lane a twelve-foot-wide paved driveway, but if he or she did so, it would be deemed "adequate to serve one single-family house only. Any additional use shall require further subdivision control approval"; (c) because the driveway did not meet the Town's subdivision requirements, Capodilupo Lane was to remain "private"; and (d) the 1999 Plan "shall satisfy the comments of the Board of Health," comments contained in two documents that the Planning Board appended to the Certificate of Approval.

7. The first Board of Health document attached to the Certificate of Approval was a letter dated December 15, 1999. In that letter, the Board of Health informed the Capodilupos that it would "waive the engineering review" for their proposed subdivision based on their attorney's statement that "a condition of approval for the definitive subdivision that would require lot 2 to remain as one lot in perpetuity would be agreed to."

8. The second attached Board of Health document was a January 10, 2000 memorandum from the Board of Health to the Planning Board. The memo reported that the Board of Health voted to approve the Capodilupo subdivision subject to thirteen conditions. They included:

4. These conditions . . . cannot be changed without the written approval of the Board of Health and only after a proper public hearing is held. . . .

12. Lot 2 shall remain as one lot in perpetuity. Any change in this condition requires written approval from the Board of Health.

5. In July 2001, Trustee Capodilupo conveyed to Rose Capodilupo Lot D1 as shown on the 1998 Plan, by deed recorded at the Registry in Book 11946, Page 133.

6. Immediately thereafter, Vincent Capodilupo (acting as Rose's guardian) made two further conveyances. He first sold to Michele DeSimone, as Trustee of the One Hundred Two Gray Street Realty Trust (sometimes called the "102 Gray Street Trust"), Lot 1 as shown on the 1999 Plan. Trustee DeSimone's deed is recorded at the Registry in Book 11946, Page 141. The deed describes Lot 1 this way:

A certain parcel of land and the buildings thereon located in Billerica, Middlesex County, Commonwealth of Massachusetts and described as being Lot 1, as shown on [the 1999 Plan] Being together bounded and described as follows:

NORTHEASTERLY: by land now or formerly of Capodilupo as shown on said plan 303.55 feet;

SOUTHWESTERLY: by land as shown on Lot 2 on said plan 177.36 feet;

SOUTHEASTERLY: by Capodilupo Land as shown on said plan 232.59 feet; and

SOUTHWESTERLY: by Gray Street as shown on said plan 141.50 feet.

Said lot contains, according to said plan, 50,000 square feet more or less.

The "SOUTHEASTERLY" course quoted above contains the only mention of Capodilupo Lane in Trustee DeSimone's deed to Lot 1. His deed contains no language excepting Capodilupo Lane from Guardian Capodilupo's grant of Lot 1, and it doesn't contain language reserving to Guardian Capodilupo any rights in Capodilupo Lane.

7. That same day, Guardian Capodilupo sold to Trustee D'Ambrosio Lot 2 as shown on the 1999 Plan. Trustee D'Ambrosio's deed is recorded at the Registry in Book 11946, Page 207. The deed describes Lot 2 this way:

A certain parcel of land located in said Billerica and described as being Lot 2, as shown on [the 1999 Plan], the property is bounded and described as follows:

NORTHEASTERLY: by land now or formerly of Lon E. and Margaret Hildreth, as shown on said plan 600 feet more or less;

NORTHEASTERLY: 355.36 feet more or less according to said plan;

SOUTHEASTERLY: by Lot 1 on said plan 412.36 feet more or less;

SOUTHWESTERLY: by Lot 1 on said plan 177.36 feet more or less;

NORTHWESTERLY: by land now or formerly of Capodilupo, as shown on said plan 198.59 feet more or less;

SOUTHWESTERLY: by land now or formerly of Capodilupo, as shown on said plan 216.54 feet more or less;

NORTHWESTERLY: by land now or formerly of William A. Cooke, as shown on said plan 522.74 feet more or less;

SOUTHWESTERLY: by land now or formerly of William A. Cooke, as shown on said plan 312 feet more or less; and

WESTERLY: 300 feet more or less according to said plan.

One cannot tell from the courses listed above whether Guardian Capodilupo's conveyance to Trustee D'Ambrosio of Lot 2 on the 1999 Plan includes Capodilupo Lane.

8. As of July 2001, and continuing to this day, Lot 2 contains few natural features that limit its development. The bulk of the property lies uphill from Gray Street, but a road constructed within the limits of Capodilupo Lane could reach Lot 2 without its grade exceeding 6%. A 250'-wide power-line easement, running north/south, bisects Lot 2 but leaves substantial acreage on both sides of the easement. There are approximately 0.80 acres of wetlands on Lot 2, all at the far southwestern end of the property.

9. In July 2002, Trustee DeSimone, his then co-trustee of the 102 Gray Street Trust, Anthony D'Ambrosio, and the Stacks entered into the July 2002 Agreement. The July 2002 Agreement contained the rider quoted earlier in this decision.

10. The Stacks understood when they signed the rider that its "contiguous parcel" meant Lot 2. The Stacks further understood when they signed the rider that Lot 2's proposed access to Gray Street would be over Capodilupo Lane.

11. Trustee D'Ambrosio told the Stacks prior to July 2002 that he was considering a four-lot subdivision of Lot 2. But neither the July 2002 Agreement nor the Stacks' deed (delivered to the Stacks in August 2002, and recorded at the Registry in Book 13533, Page 133) mentions four lots.

12. Between July 2002 and June 2010, Trustee D'Ambrosio made various efforts to develop a four-lot subdivision on Lot 2. In October 2002, he filed with the Billerica Conservation Commission a request for a determination of whether the Commonwealth's Wetlands Protection Act would apply to the site of a proposed four-lot subdivision. He also sought financing for that subdivision as early as October 2002.

13. Sometime in 2004, Trustee D'Ambrosio learned that his deed for Lot 2 wasn't clear as to who owned the land beneath proposed Capodilupo Lane. The Trustee took various steps to obtain clearer rights to use Capodilupo Lane. His efforts included asking the Stacks to sign a document granting Trustee D'Ambrosio an easement in Capodilupo Lane, "for all purposes connected with the use and enjoyment" of Lot 2. The Stacks refused to sign. They nonetheless did not oppose or interfere with the Trustee's continuing efforts to develop a four-lot subdivision on Lot 2.

14. In September 2007, Trustee D'Ambrosio received approval from the Billerica Planning Board of a "modification" to its January 2000 subdivision approval. The 2007 approval allowed a division of Lot 2 into five lots. The 2007 approval allowed construction of homes on four lots and designated the fifth lot as conservation land, to be donated to the Town. The Planning Board approved the modification following review by the Board of Health.

15. In June 2010, Trustee D'Ambrosio received from the Board of Health a Definitive Subdivision Approval Order of Conditions, approving the Trustee's five-lot subdivision of Lot 2.

16. By the time Trustee D'Ambrosio received approval of his five-lot subdivision, there was talk in Billerica that the Town might extend its sewer lines into Lot 2's neighborhood. One of the chief limits on the Trustee's ability to develop Lot 2 was the cost of installing septic systems for each home. He realized that if he could connect Lot 2's homes to a sewer line, his costs of developing Lot 2 would fall dramatically.

17. The Town extended its sewer lines to Lot 2's neighborhood in 2015. In February 2015, Trustee D'Ambrosio applied to the Billerica Zoning Board of Appeals (the "ZBA") for a comprehensive permit under G.L. c. 40B, §§ 20-23, for construction of a 24-lot subdivision on Lot 2.

18. In April 2016, the ZBA denied the Trustee's comprehensive-permit application. The Trustee appealed the denial to the Commonwealth's Housing Appeals Committee ("HAC"). While the appeal was pending, Trustee D'Ambrosio, HAC and the ZBA negotiated a settlement, finalized in March 2017 (the "2017 Settlement"), that allowed the Trustee to proceed with a twenty-home affordable-housing development, Graystone Estates.

19. The approved Graystone Estates development includes industry-standard engineering plans for Capodilupo Lane. Those plans and associated engineering meet or exceed all local and state codes and regulations for a roadway like Capodilupo Lane. The 2017 Settlement requires Capodilupo Lane "to remain a private way after completion of construction." The 2017 Settlement also requires Capodilupo Lane to be built "in accordance with sections 6 and 7 of the Town of Billerica Subdivision Regulations," regulations that were in effect as of the Planning Board's approval of the 1999 Plan, except as waived in the 2017 Settlement. As of the Planning Board's original approval of the 1999 Plan, § 2.F of the Town's Subdivision Regulations allowed (and still allows) the Planning Board to waive any regulation in the Board's judgment.

20. Based on statistics compiled by the Institute of Traffic Engineers, one would expect one house on Lot 2 to generate nine weekday daily vehicle trips using Capodilupo Lane. The expected number of weekday daily vehicle trips for a four-house development is 38. The expected number of weekday daily trips for twenty houses is 189.

21. The design for Capodilupo Lane can accommodate all of the anticipated vehicular traffic for Graystone Estates. The Lane could handle substantially more traffic than what's expected.

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Typically, after finding the facts, the Court would turn to the parties' claims and defenses. In this case, it's helpful to revisit one of the Court's summary-judgment rulings, as it helps frame the issues that were left for trial: who owns the land beneath proposed Capodilupo Lane? The Court ruled that the Stacks owned the Lane as it immediately abuts their property, and that Trustee D'Ambrosio owns the rest. Here's why: General Laws c. 183, § 58, provides in pertinent part that

[e]very instrument passing title to real estate abutting a way . . . shall be construed to include any fee interest of the grantor in such way . . . , unless (a) the grantor retains other real estate abutting such way . . . , in which case, . . . (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way . . . as far as the grantor owns, . . . or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding a sideline.

It's undisputed that the deed that first created the Stacks' property, Lot 1, describes it as being bounded southeasterly "by Capodilupo Lane as shown on [the 1999 Plan] 232.59 feet. . . ." The 1999 Plan shows the same thing. It's further undisputed that at the time Guardian Capodilupo cleaved Lot 1 from Lot 2, he owned a fee interest in the land beneath proposed Capodilupo Lane.

Given those two undisputed facts, § 58 requires the Court to construe Guardian Capodilupo's deed for Lot 1 as conveying with Lot 1 his fee interest in Capodilupo Lane, unless one of § 58's exceptions applies. Section 58's "(b)" exception doesn't apply because the "instrument" originally conveying Lot 1 – Guardian Capodilupo's deed – doesn't "evidence a different intent": that deed contains no exceptions or reservations whatsoever. But § 58's "(a)(i)" exception does apply: at the time he conveyed Lot 1, Guardian Capodilupo retained Lot 2 (at least momentarily); part of Lot 2 was "on the same side" of Capodilupo Lane as Lot 1, and hence title to Capodilupo Lane west of the Lot 1/Lot 2 dividing line remained with Guardian Capodilupo, and now's held by his successor in interest to Lot 2, Trustee D'Ambrosio.

The Stacks conceded at summary judgment that their fee interest in Capodilupo Lane as it abuts 102 Gray Street is subject to an easement appurtenant to Lot 2. They nonetheless argue that the twenty-unit Graystone Estates project will "overburden" that easement. Trustee D'Ambrosio responds that by virtue of signing the rider to the July 2002 Agreement – specifically, the statement "The [Stacks] understand and acknowledge that the Sellers are in the process of subdividing a contiguous parcel and that they agree not to interfere with said subdivision" – the Stacks waived the right to claim overburdening.

The Court holds that there was no waiver. "[I]nterpretation of a contract is a question of law for the courts," and written waivers and "releases are a form of contract. . . ." LeBlanc v. Friedman, 438 Mass. 592 , 596 (2003). The Court accepts John Stack's testimony that prior to signing the July 2002 rider, Trustee D'Ambrosio told the Stacks he was working on a four-lot subdivision of Lot 2. The rider's phrase "the Sellers are in the process of subdividing a contiguous parcel" refers to the Trustee's contemporaneous effort to develop a four-lot subdivision. The Stacks agreed not to interfere "with said subdivision," meaning the four-lot subdivision. Had the parties intended for the Stacks to waive their opposition to "any" subdivision, they wouldn't have used the word "said." See Shattuck v. Balcom, 170 Mass. 245 , 251 (1898) (when used as an adjective in a document, "[t]he word 'said' refers to some antecedent provision" of the document). Even if the phrase "said subdivision" were ambiguous, and could mean "any" subdivision proposed by the Trustee, he'd still be on the losing end of the tussle over that term's interpretation. See LeBlanc, 438 Mass. at 599 n. 6, quoting Bowser v. Chalifour, 334 Mass. 348 , 352 (1956) (ambiguous language in release must be construed "'strongly against the party who drew it.'").

The Stacks thus have not waived their right to assert that Graystone Estates will overburden the Trustee's easement over Capodilupo Lane. The Court thus turns to that claim. Technically speaking, Massachusetts law doesn't obligate the Stacks to prove that Graystone will overburden the Lane: instead, the shoe's on the Trustee's foot. See Swensen v. Marino, 306 Mass. 582 , 583 (1940) (burden rests upon the party claiming rights under an easement "to show that his right is extensive enough to authorize the amount and character of the use which he has made of the way"); Martin v. Simmons Properties, LLC, 467 Mass. 1 , 10 (2014) (same). It's also important to be precise about what "overburdening" means. Southwick v. Planning Bd. of Plymouth, 65 Mass. App. Ct. 315 , 319 n. 12 (2005), observes (citations omitted):

The term "overburden" is occasionally used to describe any use that exceeds the scope of rights held under an easement. In Murphy v. Mart Realty of Brockton, Inc., [ 348 Mass. 675 ,] 679 [(1965)], the court said that the use of an easement to serve land other than the dominant estate to which the easement is appurtenant "overloaded" the easement. Some commentators have used "overburden" to describe only use of an easement for a purpose different from that intended in the creation of the easement, "overload" to describe the situation (as in the present case) where an appurtenant easement is used to serve land other than the land to which it is appurtenant, and "nuisance" to refer to overly frequent or intensive use.

While Southwick went on to say that "[w]e express no view on such distinctions in terminology as a general matter," id., the Appeals Court has embraced Southwick's distinctions. See, for example, Lane v. Zoning Bd. of Appeals of Falmouth, 65 Mass. App. Ct. 434 , 439-40 & n. 8 (2006). So has the Supreme Judicial Court. See Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682 , 685 n. 11 (2016). The parties tried this case under Southwick's notion of overburdening – that is, whether Trustee D'Ambrosio intends to use Capodilupo Lane "for a purpose different from that intended in the creation" of the Lane – and that's all this Court will decide.

So how does one determine whether a proposed use of an easement will exceed the easement's intended scope? The Stacks rely on dicta in Rice v. Vineyard Grove Co., 270 Mass. 81 , 86 (1930), where the court observed (emphasis added): "The right to use all the beach in front for bathing was appurtenant to the whole lot granted in 1877 and to any part into which it was later subdivided unless some additional burden would thereby be placed on the servient estate." In the Stacks' view, overburdening occurs if a twenty-lot subdivision has any impact on 102 Gray Street beyond that associated with a four-lot subdivision.

Modern cases have rejected mere increased use as the test for overburdening. See, for example, Lane, 65 Mass. App. Ct. at 440. The issue isn't black or white; all the colors mix together, to grey:

"A general right of way obtained by grant may be used for such purposes as are reasonably necessary to the full enjoyment of the premises. . . ." "Where the easement arises by grant and not by prescription, and is not limited in its scope by the terms of the grant, it is available for the reasonable uses to which the dominant estate may be devoted." [A proposed use of a way] must be consistent with what the parties reasonably anticipated at the time of the establishment of the way. In making that determination, "[i]t is to be assumed that they anticipated such uses as might reasonably be required by a normal development of the dominant tenement."

Town of Bedford v. Cerasuolo, 62 Mass. App. Ct. 73 , 82-83 (2004), quoting United States v. 176.10 Acres of Land, 558 F. Supp. 1379, 1381 (D. Mass. 1983), and Parsons v. New York, N.H. & H.R.R., 216 Mass. 269 , 273 (1913). See also Tehan v. Security Nat'l Bank of Springfield, 340 Mass. 176 , 182 (1959) (same effect).

What constitutes "normal development . . . is largely a question of fact." Cerasuolo, 62 Mass. App. Ct. at 84. On remand in Cerasuolo, a case that involved an easement leading to a proposed 40B project, the court considered these facts as relevant to the issue of anticipated "normal development" of a dominant parcel: (a) did the original parties to the easement anticipate further development of that parcel; (b) at the time of its creation, was the easement the parcel's sole means of access; (c) was anyone already using the way described in the easement (and if so, what was the nature and frequency of that use); (d) did the size of the dominant parcel make its later development reasonably foreseeable; (e) at the time of creation of the easement, were the dominant and servient parcels zoned for the later-proposed use; (f) are there any express restrictions on use of the easement; and (g) at the time of creation of the easement, did the dominant parcel have any natural features that would limit its development. See Feltman v. Cerasuolo, 13 LCR 450 , 450-52 (2005) (Scheier, J.); see also Shawkemo Ducklands LLC v. Spriggs, 20 LCR 501 (2012) (Sands, J.) (following Feltman). This Court also rejected in Feltman an argument that hasn't been made here, that a 40B project doesn't constitute "normal development" of a parcel. See Feltman, 13 LCR at 452.

Weighing the same facts analyzed in Feltman, this Court concludes that the original parties to the Capodilupo Lane easement could have anticipated use of the Lane for a development like Graystone Estates on Lot 2. Recall that the Lane came into existence in July 2001, as a result of transactions among Guardian Capodilupo and Trustees D'Ambrosio and DeSimone. As of July 2001, the three anticipated further development of Lot 2: it was vacant, and it was the sole remaining Capodilupo property that hadn't been built upon. As of July 2001, the Lane was the sole means by which Lot 2 could reach a public way. Lot 2's size, 8.56 acres exclusive of the Lane, lent itself to development. Lot 2 was zoned for residential use, as was 102 Gray Street. Lot 2 also contained few natural restrictions on development, especially east of the power-line easement that crosses the property (the very site of Graystone Estates). Lot 2 isn't abnormally hilly, and it has few wetlands. Indeed, the principal constraint on development of Lot 2 as of July 2001 was the cost of installing individual septic systems. That constraint disappeared once the Town extended sewers to the area.

The Stacks argue that use of Capodilupo Lane was limited to the activities associated with one house, a limit that they agreed to raise to four houses by way of the July 2002 Agreement. No use limitation appears on the face of the original deed for Lot 2. (The lack of any stated restrictions on the use of the Lane, in either Lot 2's deed or on the 1999 Plan, distinguishes this case from three cases the Stacks cite, Rigo v. Friedlin, 88 Mass. App. Ct. 1119 (2016) (Rule 1:28 opinion; easement for "footpath" deemed not to include motorized vehicles); Hamouda v. Harris, 66 Mass. App. Ct. 22 (2006) (easement for access to existing "garage" deemed not to include a bigger, rebuilt garage); and Codman v. Wills, 331 Mass. 154 (1954) (deed granting easement that spelled out uses and limitations on use of "reserve lot" didn't allow defendants' substantial alterations to lot).) The Stacks argue instead that the original Lot 2 deed refers to the 1999 Plan, and that plan in turn references the approvals Trustee Capodilupo received for the 1999 Plan and its subdivision. The Stacks claim those approvals impose a one-house limit on use of the Lane, as (a) Capodilupo was limited to building a driveway in the Lane; (b) the Planning Board restricted the driveway's use to only one house; and (c) the Board of Health required Capodilupo to maintain Lot 2 as a single, undivided lot "in perpetuity."

The Stacks read the 1999-2000 Planning Board and Board of Health approvals selectively. In connection with each restriction the Stacks identify, the board that imposed the restriction expressly allowed changes so long as that board reviewed and approved them. That's exactly what happened here. In 2007, without objection from the Stacks, the Planning Board modified the 1999 Plan to allow construction of four houses on Lot 2, to be served by a road (and not just a driveway) within the way for Capodilupo Lane. In 2010, the Board of Health approved the same subdivision (again, without objection from the Stacks) without mentioning Trustee Capodilupo's alleged 1999 promise to maintain Lot 2 as a single lot in perpetuity. Finally, in 2017, the ZBA (possessing by virtue c. 40B the powers of both the Planning Board and the Board of Health, see 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass. 346 , 351- 52 (2017)) granted Trustee D'Ambrosio permission to create a twenty-lot subdivision. (As the Planning Board did in 2000, the ZBA required Capodilupo Lane "to remain a private way" after completion of construction.) The Town's approvals of the 1999 Plan thus do not include a perpetual prohibition on construction of a twenty-lot subdivision on Lot 2 and that subdivision's normal uses of Capodilupo Lane.

The Stacks presented quite a bit of evidence pertaining to Graystone Estates' expected traffic, its anticipated traffic impacts, the likely noise and dust that will accompany construction of the project, drainage issues, and the visibility of Capodilupo Lane's streetlights. In advance of development of Graystone Estates, that evidence might be important to land-use regulators and those responsible for controlling traffic in Billerica. After development of Graystone, if the Stacks' predictions come true, they might have nuisance claims against Trustee D'Ambrosio or Graystone's residents. See Lane, 65 Mass. App. Ct. at 440. But since neither Guardian Capodilupo nor the Town imposed by July 2001 any permanent limits on Lot 2 or the Lane's construction, their associated traffic, drainage, or their lighting, the Stacks' evidence of projected impacts doesn't alter the Court's analysis of what uses of the Lane associated with "normal development" of Lot 2 were foreseeable as of July 2001.

The Court thus will enter judgment in FAVOR of the Stacks, and AGAINST Trustee D'Ambrosio, on both Counts of the Stacks' Complaint, but only to the extent that they seek a declaration that they own a fee interest in that portion of Capodilupo Lane that abuts 102 Gray Street. The Court otherwise will DISMISS the Stacks' requests for declarations that (a) Trustee D'Ambrosio's easement over the Lane is limited to access to one house on Lot 2, and (b) the Trustee's proposed construction of twenty homes on Lot 2, with access via the Lane, would result in overburdening Lot 2's easement over the Lane. The Court will enter judgment in FAVOR of the Trustee, and AGAINST the Stacks, on the Trustee's Counterclaim, and declare that (a) there is an easement appurtenant to Lot 2 over Capodilupo Lane, and (b) the Trustee and his successors in interest to Lot 2 have the right to use that easement for all purposes for which ways in the Town of Billerica may be used.