NATICK RESIDENTIAL REATLY, LLC, Plaintiff v. NATICK PLANNING BOARD, the TOWN OF NATICK, and LAWRENCE LITWAK and KEVIN M. KELLEHER, as Co-Trustees of the HAMLET OPEN SPACE TRUST, DefendantS

Introduction

Plaintiff Natick Residential Realty, LLC ("NRR") commenced this action against defendant Natick Planning Board ("the Board") in 2017, appealing pursuant to G.L. c. 41, § 81BB, from the Board's refusal to endorse a plan presented to it by NRR as "Approval Not Required" ("the ANR Plan"). According to the Board, the lots shown thereon, having access to a public way only by crossing land dedicated as open space, did not have lawful access. [Note 1] The heart of this dispute arises out of the interpretation of an agreement dated July 21, 1992 ("the Easement Agreement") creating open space easements, which document was required by the Board in its April 1989 approval of the Hamlet At South Natick Definitive Subdivision ("the Subdivision"). At an initial hearing on the parties' cross-motions for summary judgment, the court expressed its concern, among others, (1) that the Board may have lacked authority to interpret the language of the Easement Agreement and to deny endorsement of NRR's ANR Plan based on that interpretation and (2) that all necessary parties to the proceeding might not have been joined: the current owners of lots within the Subdivision have rights both under the terms of the Easement Agreement and under a declaration of trust dated July 31, 1992 creating the Hamlet Open Space Trust ("the Trust") that could be affected by an interpretation of the Easement Agreement. As a result, NRR filed an amended complaint in February 2020 that joined as parties the co-trustees of the Trust, [Note 2] Lawrence Litwak and Kevin M. Kelleher ("the Trustees"), along with the Town of Natick ("the Town"). In the amended complaint, NRR also added a claim for declaratory relief seeking an adjudication of its ability to install driveways and underground utilities within the open space area at issue here. With those new parties and that new claim in place, the parties [Note 3] renewed their cross-motions for summary judgment relying upon their previously filed memoranda and supporting documents. [Note 4] A second hearing on those motions was held on August 4, 2020. This decision, granting summary judgment in favor of NRR, follows.

Undisputed Facts

The following facts established in the record and pertinent to the motion and cross motion for summary judgment are undisputed or are deemed admitted for purposes of the cross motions.

1. The Board approved the Subdivision through a decision dated April 25, 1989 ("the Decision"). Consolidated Statement Of Undisputed Facts And Responses Thereto With Respect To The Parties' Respective Motion And Cross-Motion For Summary Judgment ("SOUF") ¶1 and P. App. Ex. 1.

2. In the Decision, the Board approved the "Definitive Plan Of Hamlet At South Natick. A Subdivision Of Land In Natick, Massachusetts. Date: November 17, 1988 Owner/Applicant: Ledgemere Land Corporation. 290 Eliot Street, Ashland, MA 01721. Revised February 7, 1989, February 21, 1989 and March 7, 1989" consisting of sheets 1 through 34 ("the Plan"). P. App. Ex. 1.

3. The index plan and sheets 2-9 of the Plan, described in the Decision as "the definitive plans," are in the record at P. App. Ex. 2.

4. Page 3, ¶ 1, of the Decision states that "[p]rior to endorsement of the Plans, the Applicant shall submit to the Planning Board proposed documents for the following types of easements:

A) for utilities;

B) for emergency access ways;

C) for open space containing walking trails;

D) for other permanent open space

Said documents shall be subject to review and approval by the Planning Board prior to recording by the Applicant." P. App. Ex. 1.

5. In 1992, pursuant to ¶ 1 of the Decision, NRR's predecessor in interest, Ledgemere Land Corporation ("Ledgemere"), entered into the Easement Agreement with the Town by and through the Board. SOUF ¶¶ 2, 5.

6. The Easement Agreement provides, among other things, that "[n]o building or structure shall be erected, placed or maintained in the easement area by or on behalf of Ledgemere or its successors in interest." P. App. Ex. 3 at 2.

7. After the signature pages of the Easement Agreement, there follow eight more pages, unidentified in the Easement Agreement or bearing any kind of title ("the Attachment") that list each of the lots shown on the Subdivision Plan by number and set forth the various easements encumbering that lot, whether an Open Space Easement; Utility Easement; Stream and Drainage Easement; Driveway, Walking and Utility Easement; Drainage Easement; Walking and Open Space Easement; Driveway and Utility Easement; or Walking, Open Space and Utility Easement. P. App. Ex. 3.

8. The Plan labels easement areas as either "Town of Natick Easement," "Town of Natick & Others Easement," "Town of Natick (And Others) Easement," or "Town of Natick Stream Easement." P. App. Ex. 2.

9. All of the areas that are described in the Attachment solely as open space easements are labeled "Town of Natick Easement" on the Plan. P. App. Ex. 2. [Note 5]

10. At the same time that the Easement Agreement was created, Ledgemere established the Trust to hold, administer and maintain the easement areas established by the Easement Agreement. SOUF ¶ 6.

11. The beneficiaries of the Trust are "the owners of lots in the [Subdivision], as they may be from time to time." P. App. Ex. 4 at ¶ 4.

12. The Trust provides at ¶ 34 that the "Grantor reserves the right to develop other property and to connect said property into the walking trial [sic], open space, drainage and driveway easement and underground water and sewer easements established hereunder. Grantor shall subject all such property to the terms and conditions of this trust by filing with the appropriate Registry of Deeds a Declaration of Trust to that effect. Such Declaration shall convey all easements in such additional property to the ten [sic] acting Trustees hereunder who shall have the powers thereover as enumerated in paragraph 16. Upon such recording of a Declaration the owners of all of the parcels or lots of real estate or the additional property, as may thereafter be subdivided, shall be beneficiaries within the meanings [sic] of paragraphs numbered [sic] 4 hereunder and shall have all of the rights and responsibilities of a beneficiary hereunder, including paying their pro rata share of any and all assessments."

13. The Trust is recorded with the Middlesex South District Registry Of Deeds at Book 22287, Page 475, and the Easement Agreement is recorded immediately thereafter at Book 22287, Page 490. P. App. Exs. 3-4.

14. NRR is the current owner of Lot 60 within the Subdivision, also referenced as 2 Arrow Path, which is currently undeveloped. SOUF ¶ 3.

15. Lot 60 is encumbered by two utility easements and an open space easement as described in the Attachment and shown on the Plan. SOUF ¶ 9.

16. NRR has entered into an agreement to purchase a portion of the property abutting Lot 60, located at 115 Union Street, which NRR proposes to add to Lot 60 to make up the rear portions of two new proposed building lots. SOUF ¶ 4.

17. In February 2017, NRR submitted the ANR Plan to the Board for endorsement pursuant to G.L. c. 41, § 81P. SOUF ¶ 13.

18. The ANR Plan, P. App. Ex. 6, shows Lot 60 being combined with 115 Union Street and four lots being created therefrom, Lot 1 thereon including the site of the existing dwelling at the corner of 115 Union Street and Arrow Path and Lots 2, 3 and 4 abutting Arrow Path.

19. In order to reach any portion of the buildable area of Lot 2, one must pass over an area labeled "Town of Natick Easement" on the Plan and described as an Open Space Easement in the Attachment. P. App. Exs. 2, 3, 11.

20. In order to reach that portion of the buildable area of Lot 3 that accommodates a house, one must pass over an area labeled "Town of Natick Easement" on the Plan and described as an Open Space Easement in the Attachment. Id.

21. The Board voted not to endorse the ANR Plan and filed its written decision to that effect with the Town Clerk on March 6, 2017. SOUF ¶ 16.

22. In its decision, the Board stated that "[t]he lots that would have been created have no legal access to Arrow Path because they would cross land that is dedicated as an open space easement." P. App. Ex. 7.

23. The Board's determination was based in part on its view that driveways would have to be extended from Arrow Path to the buildable areas of Lot 2 and Lot 3 on the ANR Plan through the Open Space Easement contrary to the Easement Agreement and the applicable zoning bylaw. SOUF ¶ 17.

Summary Judgment Standard

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 a 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). Where both parties have moved for summary judgment, the evidence is viewed "in the light most favorable to the party against whom judgment is to enter." Eaton v. Federal Nat'l Mtge. Ass'n, 93 Mass. App. Ct. 216 , 218 (2018), quoting Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245 , 248 n.4 (2010). "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).

Discussion

The issue presented here is whether NRR, as the successor to Ledgemere, can construct driveways in an area designated as open space in the Easement Agreement and on the Plan. Whether those documents are viewed as creating a restriction, an affirmative easement, or both, the analysis is the same: to ascertain the presumed intent of the grantor based on the language of the instrument, supplemented to the extent necessary by then existing circumstances of which the parties were aware at the time of execution. See Chatham Conservation Found. v. Farber, 56 Mass. App. Ct. 584 , 590 (2002), quoting Walker v. Sanderson, 348 Mass. 409 , 412 (1965) ("A restriction, like a deed, 'is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed.'"); JACE Boston, LLC v. Holland Development, LLC, 89 Mass. App. Ct. 1108 (2016) (Rule 1:28), quoting Patterson v. Paul, 448 Mass. 658 , 665 (2007), which in turn quotes Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998) ("The scope of an easement, 'derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of attendant circumstances.'").

Here, as described below, an analysis of the words used is no simple matter. The Easement Agreement grants both affirmative easements and restrictions. Taking the easements first, there are three. First, the Town is granted in common with Ledgemere, its successors and the beneficiaries of the Trust, the perpetual right and easement:

to enter the easement areas described below, at its sole risk and expense to construct, reconstruct, install, relocate, inspect, maintain, repair and/or replace sewer pipes, water pipes, drain pipes and related equipment, to enter upon, excavate, dredge, regrade and refill the soil in the easement area, and to enter upon the easement area for said purposes. P. App. Ex. 3 at 1. Second, the Easement Agreement grants to the Town, in common with Ledgemere, its successors and the beneficiaries of the Trust, the right "to enter and utilize the walking trails" located on specified parcels. Id. at 2. Finally, the Easement Agreement grants to the Town the right "to clear debris from the said easement area and to do all work which is consistent with the foregoing purposes." Id.

Notably absent is any express grant to the Town of any rights in any open space areas, unless the right to "enter the easement areas described below" to install and maintain water and sewer infrastructure is read to include open space areas. This court does not read the Easement Agreement that way. While the only rights granted to the Town in the Easement Agreement are to install utilities, use walking trails and clear debris, the Attachment states that the lots shown on the Plan are encumbered by one or more of six different easements: open space, utilities, stream, drainage, walking and/or driveway. The right to install water and sewer infrastructure is better interpreted as being limited to a right to be exercised in the areas labeled as utility easements. To interpret that right as encumbering all easement areas would grant the Town the right to install and maintain those utilities in the stream and drainage easement, which seems unlikely, and in the walking and open space easement areas, also unlikely. Moreover, between the utility easements and the roads shown on the Plan, it appears that the buildable portion of every lot has access to utilities without the need to install them within other easement areas.

Having concluded that the Easement Agreement does not contain an express grant of any rights in open space areas to the Town, the next possible source of such rights is the Plan, which is referenced in the Easement Agreement and the Attachment. The Plan labels easement areas as either "Town of Natick Easement," "Town of Natick & Others Easement," "Town of Natick (And Others) Easement," or "Town of Natick Stream Easement," P. App. Ex. 2, without any further elucidation as to the nature of those easements. The Attachment puts some meat on those bones by providing a more specific label for those easements. For example, for Lot 5, the Attachment states: "Stream and Drainage Easement in area of lot labeled 'Town of Natick Stream Easement', also Open Space Easement in area of lot labeled 'Town of Natick Easement' and a Utility Easement in a 20' strip labeled 'Town of Natick Easement' as shown on sheet 8 of said plan." P. App. Ex. 3 at 5. Of particular relevance here, the Attachment states with respect to Lot 60: "Utility Easement labeled as 'Town of Natick (and others) 20' Wide Easement', also an Open Space Easement within the area described as 'Town of Natick Easement' and a Utility Easement labeled as 'Town of Natick Easement', all as shown on sheets 2 and 3 of said plan." Id. at 11. From this, one can infer that the Town has the benefit of an open space easement over Lot 60, but nowhere in the Easement Agreement or the Plan is the nature of that easement further described.

The limited language of the Easement Agreement sheds little light on the particular issue presented here: whether the parties intended that driveways pass over designated open space. However, the parties agree, at least for purposes of these cross-motions, that Ledgemere created the Trust simultaneously with the creation of the Easement Agreement "to hold, administer and maintain the easement areas established by the Easement Agreement." SOUF ¶ 6. While dated ten days after the Easement Agreement, the Trust was recorded immediately before it at the registry of deeds. And considering the Easement Agreement, the Plan and the Trust together, two facts are indisputable. First, with the exception of locations where roads enter the Subdivision, the entire development is ringed by open space or walking and open space easements. See P. App. Ex. 3, Attachment, and P. App. Ex. 2. Second, Ledgemere expressly reserved the right "to develop other property and to connect said property into the walking trial [sic], open space, drainage and driveway easement and underground water and sewer easements," P. App. Ex. 4, ¶ 34, a right that is referenced multiple times in the Trust. See P. App. Ex. 4 at ¶¶ 4, 14, 16(ii). If that reservation is to have any meaning, there are only two possible choices: (1) that Ledgemere's later developed properties could access the easement areas only over existing roads, not over open space, creating the prospect of properties at some distance from the Subdivision being granted easement rights within the Subdivision; or (2) that Ledgemere could pass over designated open space to incorporate abutting properties into the Subdivision. Since only abutting properties would derive meaningful benefit from the easements and are the only properties that could be "connected" to the easements, the latter interpretation prevails.

As the Town points out, the Attachment expressly includes driveway easements, but not over Lot 60, which would suggest that no driveway is permitted there. Those driveway easements, though, were created to access the buildable portions of Lots 22 and 23, whose frontage is on the other side of wetlands crossing those lots, or to cross the stream and drainage easement on Lots 13 and 14. None of the driveway easements crosses open space. In addition, there is no driveway easement reserved for the purpose of providing access to the easements for such other properties as Ledgemere might later develop, even though that eventuality is plainly contemplated by the Trust. "[T]he maxim of negative implication - that the express inclusion of one thing implies the exclusion of another - 'requires great caution in its application.'" Trustees of the Cambridge Point Condominium Trust v. Cambridge Point, LLC, 478 Mass. 697 , 702 (2018), quoting Halebian v. Berv, 457 Mass. 620 , 628, (2010), quoting 2A N.J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47.25, at 429 (7th ed. 2007)." On these facts, the court declines to apply that maxim here.

The Town also turns to extrinsic evidence in support of its argument that driveways are excluded from the open space easement area on Lot 60: language in the 1992 and 2017 Natick zoning bylaws ("the 1992 Zoning Bylaw" and "the 2017 Zoning Bylaw," respectively). Since the 2017 Zoning Bylaw is not something of which the parties would have been aware at the time of the execution of the Easement Agreement in 1992, it is irrelevant to the analysis. [Note 6] In contrast, the Board should have been aware of provisions in the 1992 Zoning Bylaw regulating cluster developments, as the Board was the special permit granting authority for such developments under that bylaw. P. App. Ex. 8 at III-71. The bylaw required that at least 35% of the total land area for a cluster development be preserved open space. Id. at III-75. Section V of the bylaw, entitled "Special Requirements," states that "[t]he minimum open space required is to be free of all structures, parking, drives and other uses that preclude space for attractive landscaping." Id. at V-2. From this, the Town argues that the parties, knowing of this definition, intended that "drives" be excluded from the open space easement at issue here.

However, if that is the case, the Board should also have been aware of the requirement that open space set aside as part of a cluster development "shall be either:

(a) Conveyed to and accepted by the Town of Natick under a conservation restriction pursuant to M.G.L. Chapter 184, as amended; or

(b) Conveyed to a non-profit organization, the principal purpose of which is the conservation of open space; or

(c) Conveyed to the owners of all of the lots within the Overall Development Plan as tenants in common, provide [sic] that title to such open space and to the lots is not separately alienable; or

(d) Conveyed to a corporation or trust owned or to be owned by the owners of the lots or residential units within the parcel for recreation or conservation purposes, with each lot subject to a proportionate charge for its share of the reasonable and appropriate maintenance expenses.

If any of the methods (b), (c), or (d) is elected, in addition, the Town shall be granted an easement or restriction over such parcel sufficient to ensure its perpetual reservation for conservation, recreation or park land . . ."

P. App. Ex. 8 at III-76. While not suggesting that these methods of preserving open space were required for this development, the Board should have been aware of them and yet none of them were exercised here to protect the Town's interests: (1) the Town was not granted a conservation restriction over the open space; (2) the open space was not conveyed to a nonprofit conservation entity; (3) the open space was not conveyed to the owners of all of the lots within the Subdivision as tenants in common; and (4) the open space was not conveyed to a corporation or trust owned by the owners of the lots in the Subdivision. Instead, in a variation on the fourth option, the grant to the Trust was of easements, not the fee in the open space areas, that, apparently due to a scrivener's error, is incomplete. The granting language states that it grants "and water and sewer easements, in certain areas of the lots described as lots 1 - 60 (inclusive), Parcel "A" and a 14' Right of Way as further described below, and as shown on the [Plan]." [Note 7] P. App. Ex. 4 at 1. There is no grant of the other easements, including the open space easements, described in the Attachment.

Moreover, and contrary to the Decision, there is nothing in the Easement Agreement or the Trust that ensures that the open space easements will be permanently preserved. The Easement Agreement expressly allows for its modification or termination by written agreement of the Board, the beneficiaries of the Trust and their mortgagees. P. App. Ex. 3 at 2. The Trust expressly allows for the "expansion or contraction of the easement areas" upon a vote of 67% of the beneficiaries, provided that the consent of the Board is obtained. P. App. Ex. 4 at ¶ 33. When the full scope of the 1992 cluster development regulations is considered, it is difficult to conclude that the parties, and particularly the Board, had in mind the provisions of the 1992 Zoning Bylaw, including the prohibition on driveways in open space areas, at the time of the execution of the Easement Agreement.

One is left, in the end, with the language of the documents. Based on that language, the court concludes that the open space easement over Lot 60 does not prevent installation of a driveway to access later acquired property by Ledgemere's successor.

In addition to the affirmative easements granted to the Town, [Note 8] the Easement Agreement also imposed two restrictions, [Note 9] one of which is relevant here: "No building or structure shall be erected, placed or maintained in the easement area by or on behalf of Ledgemere or its successors in interest." P. App. Ex. 3 at 2. The restriction, having been created by the Easement Agreement less than 30 years ago, appears to be enforceable under any reading of G.L. c. 184, § 23. [Note 10] [Note 11]

Interpreting the language of a restriction requires consideration of several factors. As a threshold matter, "[w]hen the language of the applicable instruments is 'clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.'" Rana v. Nesr, No. 17-P-810, 93 Mass. App. Ct. 1123 , 2018 Mass. App. Unpub. LEXIS 661 at *4 (August 22, 2018) (Rule 1:28 Decision), quoting Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006), which in turn quotes Cook v. Babcock, 61 Mass. 526 , 528 (1851).

Here, the word "structure" as used in the restriction is ambiguous. The parties point to a number of different sources to provide a definition, and those sources do not agree. In support of its argument that a driveway is not a "structure," NRR cites to: (1) the then applicable 1992 Zoning Bylaw, which defines a "structure" as "[a] combination of materials assembled to give support or shelter, such as a building, framework, retaining wall, platform, fence, sign, flagpole, mast for radio antenna, or the like," P. App. Ex. 8 at I-8, and requires that "open space" be "free of all structures, parking, drives and other uses that preclude attractive landscaping," P. App. Ex. 8 at V-2; and (2) case law that, in dicta, indicates that driveways are not "structures" for purposes of the local zoning bylaw. See Williams v. Inspector of Bldgs., 341 Mass. 188 (1960) (comparing a tennis court favorably to a driveway in concluding that it was not a structure under the local zoning bylaw); Chwaliszewski v. Board of Appeals, 29 Mass. App. Ct. 247 (1990) (comparing a basketball court unfavorably to a driveway in concluding that, because it was three dimensional, it was a structure while a driveway was not). [Note 12]

In support of the contrary position, the Town points to: (1) the 2017 Zoning Bylaw's definition of "structure," which expressly excludes driveways only in limited circumstances; [Note 13] (2) the definitions of "structure" contained in other towns' contemporaneous zoning bylaws that, unlike the 1992 Zoning Bylaw, expressly excluded driveways from their definitions, see Griffith v. Bd. of Appeals of Framingham, 27 Mass. App. Ct. 227 , 231 n. 13 (1989); Norton v. Bd. of Appeals of Town of Acton, No. CIV. A. 96-03176, 1998 WL 283604, at *3 (Mass. Super. May 27, 1998); and (3) the definition cited by the Supreme Judicial Court in Scott v. Bd. of Appeal of Wellesley, 356 Mass. 159 , 161 (1969) ("Anything 'constructed or built' (dictionary definition) is a structure but whether a particular thing constructed is within the meaning of the word as used in a statute, regulation, or contract depends upon the context.").

For the same reason applied in interpreting the meaning of "open space easement," the 2017 Zoning Bylaw and its definition of structure is irrelevant here: the parties would not have been aware of that definition at the time that the Easement Agreement was executed. There is also no basis for concluding that the parties were aware of the provisions of other towns' zoning bylaws, or of the decisions in Williams and Chwaliszewski. The definition of structure in the 1992 Zoning Bylaw, of which the Board should have been aware, would suggest that driveways are not included in the term. In the absence of any other then-existing circumstances that would shed light on the parties' intent, one is left again with whatever can be discerned from the four corners of the relevant documents and with the rules of construction regarding restrictions. [Note 14] And, on that score, Ledgemere's reservation of the right to join other properties to the Trust and to provide them with the benefit of the easements created in the Easement Agreement and Plan is equally compelling on the issue of whether a driveway constitutes a forbidden structure as it is on whether the open space easements excluded driveways within their boundaries.

The construction of the Easement Agreement adopted herein accords with basic concepts regarding limitations on the use of real property:

"The transferor of an easement … retains the right to make all uses of the land that do not unreasonably interfere with exercise of the rights granted by the servitude." Restatement, supra at § 1.2 comment (d). See, e.g., Butler v. Haley Greystone Corp., 352 Mass. 252 , 258, 224 N.E.2d 683 (1967); Ampagoomian v. Atamian, 323 Mass. 319 , 322, 81 N.E.2d 843 (1948); Carter v. Sullivan, 281 Mass. 217 , 225, 183 N.E. 343 (1932); Johnson v. Kinnicutt, 56 Mass. 153 , 2 Cush. 153 , 156-157 (1848). Restrictions on land "are disfavored," Patterson v. Paul, supra at 662, and doubts concerning the rights of use of an easement "are to be resolved in favor of freedom of land from servitude." Butler v. Haley Greystone Corp., supra.

Martin v. Simmons Props., LLC, 467 Mass. 1 , 9 (2014). There is a superficial appeal to the notion that "open space" means, or should mean, undisturbed land in its natural state, not subject to being crossed by a driveway. However, that is not what the governing documents state. In fact, as set forth above, the Easement Agreement does not even expressly grant to the Town any interest in the open space areas, let alone describe the scope of that interest. And it is not the definition employed in the 1992 Zoning Bylaw, which prohibits "structures, parking, drives and other uses that preclude space for attractive landscaping." P. App. Ex. 8 at V-2 (emphasis added). [Note 15] The Board expressly reserved the right to review and approve the documents in its Decision. Two sophisticated parties negotiated these documents. It was in the Town's interest, not Ledgemere's, to ensure that these documents adequately reflected the Board's requirement that Ledgemere provide easements for, among other things, permanent open space that, if it was the Board's intent, excluded the construction of driveways thereon. The language adopted by the parties fails to reflect that intent, which would run headlong into Ledgemere's expressly reserved right to connect other properties to the easements created by the Easement Agreement.

Finally, the Town argues that the release and indemnity provision contained in the Easement Agreement precludes NRR from bringing the present action. That provision states:

Ledgemere and its successors in interest and assigns hereby release, indemnify and hold harmless the Town of Natick, and its boards, commissions, committees, officers, employees, agents and representatives from and against all claims, causes of action, suits, damages and liabilities of any kind which arise out of the exercise of rights conferred by this Easement excluding, however, the claims, causes of action, suits, damages, and liabilities which arise out of the negligence of the Town of Natick, and its boards, commissions, committees, officers, employees, agents and representatives.

P. App. Ex. 3 at 2. This language appears to protect the Town from claims for money damages arising from personal injury or property damage suffered as a result of the Town's exercise of rights granted by the Easement Agreement, except in the case of the Town's own negligence. It has no applicability to NRR's G.L. c. 41, § 81BB, appeal or its request for a declaration as to the rights and obligations created by the Easement Agreement.

Conclusion

Having concluded that the Board's decision refusing to endorse the ANR Plan, filed with the Town Clerk on March 6, 2017, is based on legally untenable grounds, [Note 16] judgment will enter on Count I of NRR's amended complaint annulling the decision of the Board and remanding the matter to the Board with instructions to endorse the ANR Plan, and on Count II declaring that the proposed installation of driveways and underground utilities does not violate the provisions of the Easement Agreement.

SO ORDERED.