JANE C. HOFFMAN vs. MARTIN AIKENS, MICHAEL COVAIS, CHARLES O'BRIEN, BRIAN RADELL, RUSSELL CHIN, JOHN HIMMEL, and JEFFREY FRANKEL, as they are Members of the QUINCY ZONING BOARD OF APPEALS; and DANIEL DAVIS and ANNIE DAVIS

INTRODUCTION

Plaintiff Jane C. Hoffman ("Ms. Hoffmann") commenced this action with the filing of a complaint on October 1, 2018 in which she (1) appealed from an adverse decision of the Quincy Zoning Board of Appeals ("the ZBA") upholding an order of the Quincy Director of Inspectional Services ("the Director") declining to enforce the Quincy Zoning Ordinance ("the Ordinance") with respect to a shed ("the Shed") constructed by defendants Daniel Davis and Annie Davis ("the Davises") within the boundaries of Oswego Street, a way abutting Ms. Hoffmann's and the Davises' properties (Count I); (2) asserted that the Davises, by erecting the Shed within the boundaries of Oswego Street, were interfering with Ms. Hoffmann's easement rights (Count II); and (3) requested the entry of a judgment declaring that the Davises' Shed interfered with Ms. Hoffmann's easement rights (Count III). During the course of these proceedings, the parties [Note 1] executed an Agreement for Judgment ("the Agreement") under the terms of which the parties agreed that the Shed was not in compliance with the Ordinance, although the Davises deleted that part of the Agreement describing the Ordinance's regulation of sheds, including the requirement of rear and side yard setbacks of six feet.

In May, 2019, Ms. Hoffmann filed a Motion For Summary Judgment And Motion To Approve Agreement For Judgment in which she sought the court's approval of the Agreement and its entry on the docket of these proceedings, a declaration that she has the benefit of an easement over Oswego Street, and the entry of a permanent injunction preventing the Davises from parking or storing other boats or property within Oswego Street. The Davises opposed Ms. Hoffmann' s request that the Agreement be approved on various grounds, including that they signed it before being represented by counsel and without understanding its terms. The Davises also filed a cross-motion for summary judgment, contending that the ZBA's decision should be upheld as a reasonable interpretation of the Ordinance and that Ms. Hoffmann had failed to establish easement rights over Oswego Street. Both parties agree that there are no material facts in dispute. For the reasons set forth below, summary judgment will enter in favor of Ms. Hoffmann.

UNDISPUTED FACTS

The following facts established in the record are undisputed or are deemed admitted. [Note 2]

The Parties

1. Ms. Hoffmann owns the property located at 149 Babcock Street, Quincy, Massachusetts ("the Hoffmann Property") by virtue of a deed dated September 30, 2001 and recorded at the Norfolk County Registry of Deeds ("the Registry") on October 1, 2001 at Book 15576, Page 147 ("the Hoffmann Deed"). Plaintiffs Statement Of Material Facts ("PSMF"), Ex. A.

2. The Davises are the owners of real property located at 155 Babcock Street, Quincy, Massachusetts by virtue of a deed dated July 25, 2016 and recorded at the Registry at Book 34295, Page 423 ("the Davis Property"). PSMF Ex. E.

Title To The Hoffmann Property

3. The Hoffmann Property is a portion of Lot 100, Section 1, on a plan entitled "Plan of Sea Shore Lots at Hough's Neck, Quincy, Mass., 1891, H.T. Whitman, Surveyor" and recorded at the Registry as Plan D0668-640 ("the 1891 Plan"). PSMF ¶2 and Exs. A, B.

4. The first conveyance of the Hoffman Property was from Charles C. Barton and Harry N. Squires, as Trustees of the Manet Land Associates, to Nellie M. Greenlaw by deed dated November 2, 1905 and recorded at the Registry at Book 1017, Page 96 ("the 1905 Deed"). PSMF ¶3 and Ex. C.

5. The 1905 Deed conveyed the Hoffmann Property by reference to the 1891 Plan and described the parcel as bounded "easterly by Oswego Street ninety (90) feet." Id.

6. There is no reservation of any part of the fee in Oswego Street by the grantors named in the 1905 Deed. Id.

7. The Hoffmann Property was next conveyed by Gilbert H. Greenlaw, by virtue of a license to sell issued to him by the Norfolk County Probate Court in the Estate of Nellie M. Greenlaw, to Robert and Ruth G. Gordon by deed dated September 1, 1954 and recorded at the Registry at Book 3296, Page 33 ("the 1954 Deed"). PSMF ¶6 and Ex. D.

8. The 1954 Deed conveyed the Hoffmann Property by reference to the 1891 Plan and described the parcel as bounded "Easterly: by Oswego Street, ninety (90) feet." Id.

9. There is no reservation of any part of the fee in Oswego Street by the grantor named in the 1954 Deed. Id.

10. The Hoffmann Deed conveyed the Hoffmann Property by reference to the 1891 Plan and described the parcel as bounded "Easterly: by Oswego Street, ninety (90) feet." PSMF Ex. A.

Title To The Davis Property

11. The Davis Property is shown as Lot 99 on the 1891 Plan. PSMF ¶11 and Ex. E.

12. The first conveyance of the Davis Property was from Charles C. Barton and Harry N. Squires, as Trustees of the Manet Land Associates, to Nellie M. Greenlaw by deed dated February 27, 1907 and recorded at the Registry at Book 1048, Page 621 ("the 1907 Deed"). PSMF ¶13 and Ex. F.

13. The 1907 Deed conveyed the property described therein, including the Davis Property, by reference to the 1891 Plan and described the Davis Property as "running southerly by Oswego Street." PSMF Ex. F.

The 1891 Plan

14. Oswego Street is shown on the 1891 Plan as running from Stoughton Street in the south northerly to Babcock Street and then to Manet Avenue. PSMF ¶14 and Ex. B.

15. The Hoffmann Property and the Davis Property each abut Oswego Street southerly of Babcock Street and are directly across Oswego Street from each other. PSMF Ex. B.

16. The portion of Oswego Street between Babcock Street and Manet Avenue is a paved public street. PSMF ¶16.

17. The portion of Oswego Street between Babcock Street and Stoughton Street is an unpaved private way. PSMF ¶17.

The Use Of Oswego Street By Ms. Hoffmann And The Davises

18. Ms. Hoffmann has used Oswego Street as a right of way and as the exclusive access to her garage since acquiring the Hoffmann Property in 2001. PSMF ¶19.

19. Ms. Hoffmann's garage is located at the rear of the Hoffman Property and the garage door opens directly on to Oswego Street. PSMF ¶20.

20. Ms. Hoffmann's garage is 27' wide and its entrance is 8' wide. PSMF ¶22.

21. In the spring of 2018, the Davises installed a shed within the layout of Oswego Street. PSMF ¶18.

22. In order to fully utilize Ms. Hoffmann's garage, the full width and length of Oswego Street must be used to maneuver vehicles, including that portion of Oswego Street where the Davises installed the Shed. PSMF ¶23.

23. In the fall of 2018, the Davises placed, or allowed others to place, a 27 foot boat and trailer on Oswego Street in front of the Shed. PSMF ¶24.

24. The boat takes up a significant portion of the easement, making it impossible to turn a passenger vehicle into Ms. Hoffmann' s garage. Id.

25. In or about late June, 2019, the Davises removed the Shed from within the layout of Oswego Street, but the Shed appears to remain in violation of the Ordinance's setback requirements. PSMF ¶25.

The Ordinance And The Agreement

26. The Ordinance contains the following provisions:

3.2.1(1): An accessory use shall be permitted only on the same lot as the building or use to which is it is accessory, except as otherwise provided herein.

3.2.3(1): Tool sheds, garden sheds, storage shed, garages or other like buildings shall be allowed as accessory sues in the Residence Districts. Any such building shall meet the minimum front yard requirements; however, the minimum rear and side yard setback shall be six feet. ...

10.0 DEFINITIONS

Lot: A contiguous parcel of land in identical ownership throughout, bounded by other lots or streets, and used or set aside and available for use as the site of one or more buildings or other definite purpose. For the purpose of this Ordinance, a lot may or may not coincide with a lot of record.

Lot Area: The horizontal area within the exterior lines of the lot, exclusive of any area in a public or private way open to public use. PSMF Exs. G, H.

27. All parties to this action signed the Agreement as amended by the Davises. PSMF ¶28.

28. The Agreement provides that "[t]he Shed, in its present location, is not compliant with Section 3.2.3 or Section 3.2.1 of the Quincy Zoning Ordinance" and that "the defendants, Daniel Davis and Annie Davis, within twenty-one days of the date of this Order, bring the shed located adjacent to 155 Babcock Street in Quincy, Massachusetts, into compliance with the Zoning Ordinance of the City of Quincy."

29. At oral argument in this matter, counsel for the ZBA represented to the court that, after consultation with counsel, the ZBA concurred with Ms. Hoffmann's interpretation that the Ordinance requires that the Shed be located within the confines of the Davis Property and six feet off the rear and side yard lines.

DISCUSSION

Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law."' Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

The Shed And Zoning

In her motion, Ms. Hoffmann contends that the Shed, as originally placed by the Davises and subsequently moved by them, violates the Ordinance and that the Agreement to that effect should be entered by the court. The Davises argue (1) that the Shed may be located within that portion of the layout of Oswego Street to which they hold a fee interest pursuant to the derelict fee statute; (2) that as so located the Shed complied with the rear and side yard setbacks; and (3) that the Agreement, which is internally inconsistent, should be disregarded because it was executed by the Davises without an understanding as to its terms.

The short answer to the Davises' argument is that, in the absence of fraud (and none is alleged here), they are bound by the terms of the Agreement. "Typically, one who signs a written agreement is bound by its terms whether he reads and understands them or not." St. Fleur v. WPI Cable Systems/Mutron, 450 Mass. 345 , 355 (2008) citing Cohen v. Santoinni, 330 Mass. 187 , 193 (1953) and cases cited. The Agreement, as modified by the Davises, is not ambiguous: it states that "[t]he shed, in its present location, is not in compliance with Section 3.2.3 or Section 3.2.1 of the Quiincy Zoning Ordinance."

The longer answer, which leads to the same result, is through an analysis of Ms. Hoffmann's appeal of the now repudiated decision of the ZBA. "Judicial review of a zoning board's decision pursuant to G.L. c. 40A, §17, 'involves a peculiar combination of de novo and deferential analyses.'" E&J Props., LLC v. Medas, 464 Mass. 1018 , 1019 (2013) quoting Wendy's Old Fasioned Hamburgers of N.Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374 (2009). A judge reviews the facts de novo but reviews with deference the board's legal conclusions. Id. "A board's decision 'cannot be disturbed unless it is based on a legally untenable ground,' or is 'unreasonable, whimsical, capricious or arbitrary.'" Id.

Here, the ZBA has itself recognized that its decision was legally untenable. The construction of the Shed within the layout of Oswego Street plainly violated §3.2.1(1) of the Ordinance, which requires that an accessory use be permitted only on the same lot as the building or use to which is it accessory. Equally plainly, under §3.2.3(1), the Shed is subject to a minimum rear and side yard setback requirement of six feet. The ZBA's interpretation of the Ordinance is entitled to deference. Mellendick v. Zoning Bd. Of Appeals, 69 Mass. App. Ct. 852 , 857 (2007).

Without citation to any authority, the Davises contend that the fee in Oswego Street to the centerline, which they own by virtue of G.L. c. 183, §58, was incorporated into their existing lot for zoning purposes such that the Shed may properly be installed there. The case law does not support their position. See Sears v. Building Inspector of Marshfield, 73 Mass. App. Ct. 913 , 914 (2009) ("Plainly, the fee interest to which §58 entitles a grantee does not include the right to build. Therefore, it makes little sense to read §58 as a grant of additional lot area for the purposes of meeting minimum lot size requirement in zoning laws."); Warden v. Town of Bourne Zoning Bd. Of Appeals, 27 LCR 277 , 281 (2019) ("cases considering the application of the derelict fee statute for zoning purposes make it clear that the derelict fee statute and the zoning laws serve separate and distinct purposes."); Kubic v. Audette, 27 LCR 33 , 42 n. 23 (2019) ("The fact that Paul owns the fee in the southern half of the Right of Way does not make the Right of Way part of his lot.") citing Sears, supra.

The Easement

Ms. Hoffmann claims the benefit of an easement by estoppel over Oswego Street. The Davises contend variously (1) that the effect of G.L. c. 183, §58 may be to extinguish the abutting way and any easement rights to use it; (2) that the City of Quincy's abandonment of the section of Oswego Street in 1971 (about which there is no admissible evidence in the record) abutting the parties' properties somehow impacted Ms. Hoffmann's easement rights; and (3) that easement rights over Oswego Street are not necessary for adequate and convenient access to any lots.

Easements by estoppel fall into two general categories: those where a grantor conveys land bounded on a street or way, and those where the grantor conveys land with reference to a recorded plan on which the way is shown. Patel v. Planning Bd. of North Andover, 27 Mass. App. Ct. 477 , 481-482 (1989). "This principle of estoppel 'seems to have become a rule of law rather than a mere canon of construction.'" Murphy v. Mart Realty of Brockton, 348 Mass. 675 , 678 (1965), quoting Teal v. Jagielo, 327 Mass. 156 , 158 (1951).

Regarding the first category, numerous cases have recognized that "when a grantor conveys land bounded on a street or a 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), quoted in Murphy, 348 Mass. at 677-678; Melrose Fish and Game Club, Inc. v. Tennessee Gas Pipeline Company, LLC, 89 Mass. App. Ct. 594 , 597 (2016); Post v. McHugh, 76 Mass. App. Ct. 200 , 202-203 (2010); Lane v. Zoning Bd. of Appeals, 65 Mass. App. Ct. 434 , 437 (2006); Patel, 27 Mass. App. Ct. at 481. "[T]he right thus acquired by the grantee (an easement of way) is not only coextensive with the land conveyed, but embraces the entire length of the way, as it is then laid out or clearly indicated and prescribed." Casella, 325 Mass. at 89.

Regarding the second category, "where land situated on a street is conveyed according to a recorded plan on which the street is shown, the grantor and those claiming under him are estopped to deny the existence of the street for the entire distance as shown on the plan." Goldstein v. Beal, 317 Mass. 750 , 755 (1945), quoted in Patel, 27 Mass. App. Ct. at 482. Accord Farnsworth v. Taylor, 75 Mass. 162 , 166 (1857) ("[W]here land is conveyed which is situate on a street or way, and reference is made in the deed of conveyance to a plan on which said street is delineated, the plan ... is made a part of the deed, and estops the grantor and those claiming under him to deny the existence of the street as delineated on the plan ... .").

In accord with the familiar maxim that one cannot convey rights in real estate that one does not own, the dominant and servient estates must have a common grantor. See Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 292 (2005) ("one may not grant what one does not own ... easements can be created only 'out of other land of the grantor, or reserved to the grantor out of the land granted; never out of the land of a stranger.' Richards v. Attleborough Branch R.R. Co., 153 Mass. 120 , 122, 26 N.E. 418 (1891)."); Patel, 27 Mass. App. Ct. at 482 ("Both categories of cases deal with the rights of grantees or their successors in title against their grantors and their successors in title.").

There is no requirement that the way be in existence or in use. "This rule is applicable even if the way is not yet in existence, so long as it is contemplated and sufficiently designated." Murphy, 348 Mass. at 678. "The rights also apply even if the way under consideration is obstructed, overgrown, and impassable." Canton Highlands, Inc. v. Searle, 9 Mass. App. Ct. 48 , 54 (1980).

There is no requirement that the easement be necessary to the dominant estate. "The rights exist even if there are other ways, public or private, leading to the land." Melrose Fish and Game Club, Inc., 89 Mass. App. Ct. at 598, quoting Canton Highlands, Inc., 9 Mass. App. Ct. at 55. "However, it is important to remember that 'reference to a plan like [the plans in this case], laying out a large tract, does not give every purchaser of a lot a right of way over every street laid down upon it.'" Jackson v. Knott, 418 Mass. 704 , 711 (1994), quoting Pearson v. Allen, 151 Mass. 79 , 81 (1890), and cases cited.

Here, Ms. Hoffmann and the Davises share a common grantor, Manet Land Associates. Each deed in Ms. Hoffmann's chain of title conveys Lot 100 both with reference to Oswego Street as its easterly boundary and with reference to the 1891 Plan. As a result, Ms. Hoffmann has a right of way over Oswego Street. Manet Land Associates and those claiming under it, including the Davises, are estopped to deny the existence of Oswego Street for its entire length.

Under the law cited above, it matters not that Oswego Street is not paved, or even that it is obstructed, overgrown and impassable. The Davises' argument that an easement over Oswego Street is not necessary for adequate and convenient access to Ms. Hoffmann's lot is equally unavailing: as noted above, necessity is not a requirement of easements by estoppel; and, in any event, the evidence in the record indicates that access over Oswego Street is necessary for Ms. Hoffmann to reach her garage. Similarly, the Davises' contention that the derelict fee statute extinguishes easement rights is contrary to existing law. Adams v. Planning Bd. Of Westwood, 64 Mass. App. Ct. 383 , 389 (2005) ("the derelict fee statute pertains only to the question of ownership of the fee. With respect to the existence of an easement, we look, rather, to the intention of the parties regarding the creation of the easement or right of way."). Finally, whatever actions the Quincy City Council took in 1971 could not extinguish the private easement rights of abutters to Oswego Street without complying the provisions of G.L. c. 79.

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, Plaintiff's Motion for Summary Judgment And Motion To Approve Agreement For Judgment is ALLOWED and the Motion For Summary Judgment Of Defendants, Daniel Davis And Annie Davis, is DENIED. Summary judgment shall enter on Plaintiffs complaint (1) on Count I, approving the Agreement pursuant to Land Court Rule 10; (2) on Counts II and III, declaring that the Hoffman Property has the benefit of an appurtenant easement over Oswego Street as shown on the 1891 Plan that the Davises have unreasonably interfered with by constructing a shed and parking a boat and trailer within the layout of Oswego Street; and (3) permanently enjoining the Davises from interfering with Ms. Hoffmann's passage within the layout of Oswego Street.

SO ORDERED