Tracy Harris (Harris) has appealed a decision of the City of Amesbury Zoning Board of Appeals (ZBA) upholding a foundation permit issued to Gary B. Wright, individually and as Trustee of Zachary's Cove Realty Trust (Wright). Harris and Wright are abutting neighbors along a right-of-way in Amesbury known as Birchmeadow Road. Harris and Wright hotly dispute the parties' respective rights in Birchmeadow Road and Wright's ability to construct a house in compliance with the City of Amesbury Zoning Bylaw. Wright has brought this motion for summary judgment, seeking to dismiss Harris's complaint on various grounds. Because there remain facts in dispute on all the issues raised by Wright, his motion for summary judgment must be denied.
Procedural History
The Complaint in this action was filed on August 1, 2018. The case management conference was held on September 4, 2018. On April 4, 2019, defendant Wright filed the Trustee's Motion for Summary Judgment (Summary Judgment Motion), the Trustee's Statement of Material Facts, and the Trustee's Memorandum in Support of Motion for Summary Judgment. On May 6, 2019, plaintiff Harris filed her Response to Private Defendant's Statement of Material Facts, Plaintiff's Motion in Opposition to the Private Defendant's Motion for Summary Judgment (Summary Judgment Opposition), and Plaintiff's Memorandum in Support of Her Opposition to the Private Defendant's Motion for Summary Judgment. Wright filed Defendant's Response to Plaintiff's Statement of Additional Material Facts and a Reply to Plaintiff's Opposition to Motion for Summary Judgment on May 28, 2019. The Summary Judgment hearing was held on July 9, 2019, and was then taken under advisement. This Memorandum and Order follows.
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. Willits 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).
Facts
The following facts are undisputed:
1. The ZBA, through its members, is a duly-appointed and duly-organized municipal agency of the City of Amesbury (city), with its principal office at 62 Friend Street, Amesbury, Massachusetts. Exh. 1 ¶ 2.
2. Denis A. Nadeau is the Building Commissioner of the city (Building Commissioner), with a principal office at 9 School Street, Amesbury, Massachusetts. Exh. 1 ¶ 9.
3. Harris is the co-owner of the property at 49 Birchmeadow Road, Amesbury, Massachusetts (Harris property). Exh. 1 ¶ 1. The Ebacher Realty Trust was a predecessor in interest to Harris, having owned land out of which Harris' current lot was conveyed. Exh. 26; Def. SOF ¶ 8; Pls. SOF ¶ 8.
4. Wright owns 46R Birchmeadow Road Amesbury, MA (Wright property). Wright's title to the Wright property is by a deed from the Merry Meeting Nominee Trust dated July 30, 1999, and recorded with the Essex South District Registry of Deeds (registry) in Book 15852, Page 365 (Wright deed). Because this deed conveys registered and recorded land, it is also registered in the Essex South Land Court Registration District as document number 360413. Exh. 16. Def. SOF ¶ 3; Pls. SOF ¶ 3.
5. The Wright property is shown as "Lot 2" on a plan entitled "Plan of Land in Amesbury, MA. - Essex County - for Merry Meeting Nominee Trust," dated September 14, 1994, endorsed by the Amesbury Planning Board (board) as "Approval Under the Subdivision Control Law Not Required" on September 21, 1994, and recorded with the registry in Plan Book 302, Plan 73 (1994 ANR plan). The 1994 ANR plan thus includes both the registered and recorded (non-registered) portions of the Wright property. The registered portion is also shown on Amesbury Tax Map 45 as Lot 5; the recorded portion is shown as Lot 5A. Exhs. 6, 14, 15, 16, 18; Def. SOF ¶ 22, 24, 60, 61; Pls. SOF ¶ 22, 24, 60, 61.
6. The descriptions of the recorded (non-registered) portion of the Wright property in the deeds in the chain of title from Anna Merrill in 1910-1911 through the Wright deed convey the parcel "Together with . . . all rights of way to pass and re-pass with teams or otherwise over the roadway as now laid out and which rights of way have been reserved by or have been granted to Irving M. Luce by deed of Anna E. Merrill dated May 28, 1910, and recorded in Book 2025, Page 62; and in deed of Anna E. Merrill dated February 18, 1911 and recorded in Book 2063, Page 369." Exh. 31; Def. SOF ¶ 67; Pls. SOF ¶ 67.
7. The deed by Anna E. Merrill to Irving M. Luce dated May 28, 1910, and recorded at the registry in Book 2025, Page 62, stated, "the said grantor hereby gives the said grantee, his heirs and assigns, the right to pass and repass with teams or otherwise over the roadway as now laid out over the remaining land of the grantor on the north shore of said [Kimball] Pond." Exh. 31; Def. SOF ¶ 68; Pls. SOF ¶ 68.
8. The Harris property is located adjacent to the Wright property. A right-of-way known as Birchmeadow Road is situated within the boundaries of the Harris property and extends westerly past the Wright property. Exhs. 1 ¶ 1, 7; Def. SOF ¶ 1, 2; Pls. SOF ¶ 1, 2.
9. Both Lots 1 and 2 on the 1994 ANR plan have over 20,000 square feet and over 125 feet of frontage on the Birchmeadow Road right-of-way. The definition of the term "frontage" is at issue in this case. Exh. 6; Def. SOF ¶ 23; Pls. SOF ¶ 23; Exh. 1, pg. 5.
10. The portion of the Birchmeadow Road right-of-way at issue in this case was in existence when the subdivision control law became effective in the city in 1971. Exh. 23; Def. SOF ¶ 12; Pls. SOF ¶ 12.
11. Harris's predecessor-in-interest, Laurie Ebacher challenged the Land Court's determination of the rights in the Birchmeadow Road right-of-way as part of a registration case; that action was appealed to the Appeals Court. See Wilson v. Ebacher, 3 Mass. App. Ct. 721 (1975). A stipulation was entered two months after the Appeals Court decision (the Wilson v. Ebacher stipulation). Exh. 37, pg. 1.
12. Birchmeadow Road has been designated as eligible for expenditure of public funds for the removal of snow and ice from private ways open to public use in accordance with G.L. c. 40, §6c. Exh. 12; Def. SOF ¶ 19; Pls. SOF ¶ 19.
13. The Amesbury Building Inspector testified at his deposition that, "Birchmeadow Road is a road maintained by the town, used by the public," and that "[i]t is a way that the public has the right to use." Exh. 13, pg. 35; Exh. Def. SOF ¶ 20; Pls. SOF ¶ 20.
14. Between 1983 and 1985, Wright and his brother Charles Wright (Charles) sought and obtained building permits for three structures on property situated directly to the west of the Wright property. Exh. 26, Ex. A; Exh. 35, pp. 19-21.
15. On December 7, 1985, the Amesbury Zoning Board of Appeals (ZBA) issued a decision in which it found that the three aforementioned structures violated the City of Amesbury Zoning Bylaw (bylaw) because of "insufficient frontage on a public way" and that the accessory building violated the provision regarding "more than one principal structure on a single lot" (1985 ZBA decision). Exh. 26, Ex. A.
16. In 1993, Wright filed a Form A application and a plan of land (1993 ANR plan) with the board, showing a portion of the parcel to the west of the Wright property with the three structures divided into three separate lots identified as Lots 2, 3, and 4. Each of Lots 2 and 3 include within its bounds one of the previously built residential structures. The 1993 ANR plan also shows a "Way" described as a "16' Wide Gravel Road." The third residential dwelling, belonging to Charles L. Wright and Shirley R. Wright, is shown to the west of the land subject to the 1993 ANR plan together with a continuation of the "Way" extending westerly off the Subject Parcel. Exh. 20.
17. On or about March 22, 1993, the board endorsed the 1993 ANR plan as approval not required under the subdivision control law. Exh. 20. The 1993 Plan was thereafter filed with the Land Court as Land Court Plan 37296C. Exh. 21.
18. The 1993 ANR plan includes
Notes: regarding "way" shown hereon: 1) [t]he subject way has been in continuous existence at least since July 9, 1915 according to deed instrument Book 2303, Page 453, recorded at the Essex County South Registry of Deeds and the Parcel's subsequent title chain to present date . . . 2) [t]he subject way presently exists as a 16 foot wide gravel surfaced roadway with suitable horizontal and vertical alignment sufficient to service the three (3) dwellings presently located thereon and serviced thereby; 3) the existence of the way is also documented on United States Geological Survey maps dated since 1942.
Exh. 20.
19. The 1993 ANR plan included Wright's residence at 54 Birchmeadow Road, which abuts, at its northeastern corner, the property at 46R Birchmeadow Road (i.e., the previously-described Wright property.) Exh. 20; Def. SOF ¶ 28; Pls. SOF ¶ 28.
20. As discussed, Wright's predecessor, Merry Meeting Nominee Trust, obtained endorsement of the 1994 ANR plan on September 12, 1994, and Lot 2 on that plan is the Wright property.
21. In December 1985, Harris's predecessor-in-title, Ebacher Realty Trust, and others, filed suit in Superior Court seeking enforcement of the 1985 ZBA decision. Exh. 26; Def. SOF ¶ 37; Pls. SOF ¶ 37; Exh. 35; Def. SOF ¶ 39; Pls. SOF ¶ 39.
22. After this lawsuit was filed, the city required Wright to improve the condition of the private way at issue here, Birchmeadow Road, starting from his residence to the west of the Wright property, and heading east past the Wright property to the terminus of the public-way portion of Birchmeadow Road. Exhs. 9, 10, 11; Def. SOF ¶ 31; Pls. SOF ¶ 31.
23. Wright entered into an agreement with the board to improve Birchmeadow Road to specifications satisfactory to the town on March 16, 1993. Exh. 28; Exh. 26 Exh. F.
24. The Birchmeadow Road improvement agreement references that
the "Way" shall be constructed pursuant to the road profile as shown on the plan entitled, "Access Improvement Plan - 1, Off the Birches, Lake Attitash, Amesbury Mass., Owner Gary & Donna Wright, Engineer WC Cammett Engineering, Inc dated 3/1/93," said Plan filed with the Planning Board of Amesbury.
The agreement is registered as document number 306620. Def. SOF ¶¶ 42, 43, 44; Pls. SOF ¶¶ 42, 43, 44; Exhs. 10, 28.
25. Wright completed the required roadway work to Birchmeadow Road, from in front of his residence, past the Wright property all the way to the terminus of the public way portion of Birchmeadow Road. Exhs. 9, 11; Def. SOF ¶ 45; Pls. SOF ¶ 45.
26. On April 20, 1994, the board "voted to release the balance of the funds in the Wright account" because the Wrights "completed the required roadway work and submitted asbuilts to" the board. Exh. 9; Def. SOF ¶ 47; Pls. SOF ¶ 47.
27. Laurie Ebacher and Wright family members signed a settlement agreement on March 14, 1995. Exh. 27.
28. The agreement included a clause that stated:
Upon the payment of $25,000 to Laurie Ebacher and upon the execution, delivery and recording of the $15,000.00 note and mortgage to MWP, Inc., the parties shall execute and file a Stipulation of Dismissal of both civil actions, with prejudice and without costs. The parties shall obtain such Nisi Orders from the Land Court as necessary to conclude the settlement of the cases prior to the dismissal of the suits.
Exh. 27.
29. The reported agreement never resulted in a stipulation of dismissal of the two cases in question, 94 MISC 203319 and 94 MISC 209893, which presently remain open. Exh. 29; Def. SOF ¶ 58; Pls. SOF ¶ 58.
30. In 1997, the Amesbury Fire Department accessed Birchmeadow Road, but had to go slow due to a guardrail that had been installed in 1992, and trees on either side of the road. The Fire Department asserted that it may be difficult with road conditions during winter, and possibly the spring and fall seasons. Exh. 8.
31. Removal of the guardrail was imposed as a condition of a variance granted to Harris' predecessor-in-interest. Exh. 42.
32. Wright submitted a Building Permit Application to develop the Wright property with a single-family residence to the Building Commissioner on or about April 19, 2018. Exh.1 ¶ 15.
33. The zoning requirements in effect for the Wright property at the time Wright applied for the foundation permit included 125 feet of frontage and 20,000 square feet for lot size. Exhs. 4, 5, 33; Def. SOF ¶ 4; Pls. SOF ¶ 4.
34. The ZBA rendered findings, in deciding Wright's application for a variance from front setback zoning requirements for the Wright property, that the Wright property "consists of 34,175 square feet in area, with 261.17 feet of frontage" (decision). Exh. 33; Def. SOF ¶ 5; Pls. SOF ¶ 5.
35. Harris has appealed the decision.
36. A house on Wright's property situated on the subject right-of-way caught fire, and the local fire department was not able to extinguish the fire resulting in a total loss of the structure. Exh. 36.
37. The bylaw's definition of lot frontage has remained unchanged since at least 1980. Exh. 34, pg. 26-28.
38. The bylaw includes the definitions of "Lot, Frontage," "Lot Line, Front" and "Street." Exh. 5.
39. "Lot, Frontage" is defined as "[t]he horizontal distance measured along the front lot line between the points of intersection of the side lot lines with the front lot line." Exh. 5.
40. "Lot Line, Front" is defined as "[t]he property line dividing a lot from a street (right-of-way). On a corner lot, the owner shall designate one street line as the front lot line." Exh. 5.
41. "Street" is defined as "[a] way which is over 24 feet in right-of-way width and is dedicated or devoted to public use by legal mapping or by any other lawful procedure." Exh. 5.
Discussion
The Summary Judgment Motion challenges Harris's standing, under G.L. c. 40A, §17, to appeal the ZBA's decision regarding the issuance of a foundation permit. It also asserts that the grant of a foundation permit to Wright was proper based on the fact that the board had previously endorsed ANR plans for Wright's and Harris's predecessors-in-interest with frontage on the right-of-way at issue on Birchmeadow Road, that the grant of Wright's foundation permit demonstrated that the lot had over 125 feet of frontage, regardless of the definition of "Street" under the bylaw, that Harris is estopped from asserting her claims because of a settlement agreement between her predecessor-in-interest and Wright, and that Wright has title rights to use the right-of-way that have not been extinguished by Harris. Harris's Summary Judgment Opposition asserts that Harris has standing to challenge the ZBA's decision under G.L. c. 40A, §17, that the endorsement of ANR plans does not render the lot compliant with the bylaw, that the definitions of "Street," "Lot, Frontage" along a "Lot Line, Front" as those terms are defined in the bylaw, cannot be disregarded, that there is no estoppel without a final judgment on the merits, and that Wright has no title rights to use the right-of-way and that even if Wright did have title rights to use the right-of-way, that those rights have been extinguished by Harris' predecessor-in-interest.
I. Standing
In order to have standing, Harris must be a "person aggrieved" by the decision. G.L. c. 40A, §17; Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115 , 117 (2011); Planning Bd. of Marshfield v. Zoning Bd. of Appeals of Pembroke, 427 Mass. 699 , 701 (1998). Persons entitled to notice under G.L. c. 40A, §11, including abutters to the Wright property and abutters to abutters within 300 feet of the Wright property, are entitled to a rebuttable presumption that they are aggrieved within the meaning of §17. G.L. c. 40A, §11; 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719 , 721 (1996); Choate v. Zoning Bd. of Appeals of Mashpee, 67 Mass. App. Ct. 376 , 381 (2006). Harris is a direct abutter to the Wright property and is therefore entitled to the rebuttable presumption that she is aggrieved.
In the zoning context, a defendant can rebut the presumption of standing at summary judgment in two ways. First, the defendant can show "that, as a matter of law, the claims of aggrievement raised by [a plaintiff], either in the complaint or during discovery, are not interests that the Zoning Act is intended to protect." 81 Spooner Road, LLC, 461 Mass. at 702, citing Kenner, 459 Mass. at 120. "Second, where [a plaintiff] has alleged harm to an interest protected by the zoning laws, a defendant can rebut the presumption of standing by coming forward with credible affirmative evidence that refutes the presumption." Id. at 702. "[T]he defendant may present affidavits of experts establishing that [a plaintiff's] allegations of harm are unfounded or de minimis." Id., citing Kenner, 459 Mass. at 119-120, and Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 23-24 (2006). As part of that showing, a defendant need not present affirmative evidence that refutes a plaintiff's basis for standing; "[i]t is enough that the moving party 'demonstrate [ ] by reference to material described in Mass. R. Civ. P. 56(c), [ 365 Mass. 824 (1974),] unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving' a legally cognizable injury." Id. at 703, quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "Once the presumption of standing has been rebutted successfully, the plaintiff [has] the burden of presenting credible evidence to substantiate the allegations of aggrievement, thereby creating a genuine issue of material fact whether the plaintiff has standing and rendering summary judgment inappropriate." 81 Spooner Road, LLC, 461 Mass. 703 n. 15, citing Marhefka v. Zoning Bd. of Appeals of Sutton, 79 Mass. App. Ct. 515 , 519-521 (2011).
Harris raises as grounds for aggrievement that the right-of-way, Birchmeadow Road, is not open to the public and that using the right-of-way thus constitutes a trespass. Additionally, Harris raises negative impact on the value of her land and home, overcrowding, undue concentration of population, and decreased safety from fire, flood, panic, and other dangers. The negative impact on the value of her land and home needs to be tethered to another interest protected by G.L. c. 40A, §17, but the rest of these alleged harms are interests protected by G.L. c. 40A, §17, and the bylaw. The purposes of the bylaw, as set out in Section 1, are:
to lessen congestion in the streets; to conserve health; to secure safety from fire, flood, panic, and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, water supply, drainage, sewerage, schools, parks, open space, and other public requirements; to conserve the value of land and building including the conservation of natural resources and the prevention of blight and the pollution of the environment; to encourage the most appropriate use of land throughout the City . . .
Since Harris is entitled to a presumption of standing, it is Wright's burden to rebut this presumption. Wright asserts that Harris has no reasonable expectation of proving a legally cognizable injury, and that her allegations are conclusory in nature. In this case, Harris has identified several bases for a legally cognizable injury, since her alleged harms fall under those which the zoning bylaw are intended to protect. As evidence to rebut the presumption of standing, Wright has put forth evidence that there is not a decrease in safety from fire, flood, panic, and other dangers because in 1997, the Amesbury Fire Department was able to access Birchmeadow Road, even with a guardrail that had been installed in 1992. Exh. 8. Wright alleges that the guardrail was removed in 2005, so the Fire Department would have an even easier time accessing Birchmeadow Road. Harris asserts that a house on Wright's property situated on the subject right-of-way caught fire, and the local fire department was not able to extinguish the fire resulting in a total loss of the structure. Exh. 36. With this evidence, Wright has successfully rebutted the presumption of standing. Harris has, however, presented sufficient claims of standing and evidence to create a genuine issue of material fact whether she has standing, thus rendering summary judgment on her standing inappropriate.
II. ANR plans
Wright argues that the fact that the board endorsed the 1993 and 1994 ANR plans means that the board established that the Wright property has sufficient frontage on a way, and therefore, the building permit could be issued and the ZBA's decision was proper. The question, then, is what the endorsement of the ANR plans meant with respect to the status of Birchmeadow Road for the purposes of establishing the frontage required under the bylaw.
In municipalities that have accepted the Subdivision Control Law, no person may make a subdivision of land without approval of the subdivision plan by the municipality's planning board. G.L. c. 41, §81O. Certain divisions of land are excluded from the definition of "subdivision" and thus do not require approval by the planning board. G.L. c. 41, §81L; see RCA Dev., Inc. v. Zoning Bd. of Appeals of Brockton, 482 Mass. 156 , 159 (2019). "An owner may record a plan showing such a division of land that does not constitute a subdivision only if the planning board determines that the plan does not require approval under the Subdivision Control Law and endorses the plan to that effect." O'Pray v. Brewer, 27 LCR 390 , 391 (2019) (Foster, J.); G.L. c. 41, § 81P. [Note 1]
"Section 81L provides for three exceptions where a division of land into two or more lots will not constitute a subdivision." O'Pray, 27 LCR at 391. Under the first exception, a division of land into two or more lots shall not constitute a subdivision if each lot "has frontage on a public way or a way in which the clerk of the city or town certifies is maintained and used as a public way." G.L. c. 41, §81L. This exception does not help Wright. He contends that Birchmeadow Road is maintained and used as a public way because on December 12, 2000, the city designated Birchmeadow Road as ". . . eligible for expenditure of public funds for the removal of snow and ice from private ways open to public use in accordance with MGL, Chapter 40, Section 6c." Exh. 12. That the city may have so designated Birchmeadow Road does not make it a public way. In Bruggeman v. McMullen, 26 Mass. App. Ct. 963 (1988), the defendants claimed the right to move commercial traffic from their unregistered land over a street in the town of Brewster because "by undertaking to remove snow and ice from [that street] pursuant to G.L. c. 40 §§6C and 6D, [the street] had somehow transformed a private way into a public way." Id. at 963. The Court of Appeals held that "accepting municipal service for the private way" did not forbid the plaintiffs from "restrict[ing] the public's use of the way," and that "a municipality may appropriate money to plow private ways 'open to the public use.'" Id. "Ways to which the public has access for ordinary travel may be private." Id.
Within the text of §6C, the Legislature took care to state that 'the removal of snow and ice from such a way shall not constitute a repair of a way,' an apparent recognition of those cases which have said that repair of a way by a municipality is evidence of the way's public nature.
Id. The designation of Birchmeadow Road as ". . . eligible for expenditure of public funds for the removal of snow and ice from private ways open to public use in accordance with MGL, Chapter 40, Section 6c," does not necessarily designate it as a public way. Exh. 12. Rather, Wright must establish that Birchmeadow Road is a public way under one of three qualifications: "(1) a laying out by public authority in the manner prescribed by statute . . .; (2) prescription; [or] (3) prior to 1846, a dedication by the owner to public use . . . coupled with an express or implied acceptance by the public." Fenn v. Town of Middleborough, 7 Mass. App. Ct. 80 , 83-84 (1979). "If a road has never been dedicated and accepted, laid out by public authority, or established by prescription, such a road is private." W.D. Cowls, Inc. v. Woicekoski, 7 Mass. App. Ct. 18 , 19 (1979). There is no evidence before the court that Birchmeadow Road is a public way, based on one of these three methods, and none of the ANR plans appears to have been endorsed on the basis that Birchmeadow Road is a public way.
Under the second exception, a division of land into two or more lots shall not constitute a subdivision if each lot is "a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law." G.L. c. 41, §81L. Wright contends that the 1993 and 1994 ANR plans, approved under G.L. c. 41, §81P, are plans "endorsed in accordance with the subdivision control law" and thus show a way that provides frontage. "A planning board is bound to make [an ANR] endorsement unless the plan presented shows a subdivision." Gates v. Planning Bd. of Dighton, 48 Mass. App. Ct. 394 , 395 (2000). ANR endorsement is not the approval of a plan under the subdivision control law, but rather endorsement of a plan because there is no subdivision. Therefore, the ANR plans do not establish that Birchmeadow Road is "a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law;" rather, those plans were endorsed because they do not meet the definition of a subdivision.
Under the final exception, a division of land into two or more lots shall not constitute a subdivision if each lot has frontage on:
a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon.
G.L. c. 41, §81L. The length of the frontage must also satisfy the municipality's zoning requirements. Id.
Here, the board endorsed the 1993 ANR plan as approval not required. At the time of this endorsement, the bylaw required 125 feet of frontage. The 1993 ANR plan included notes that stated:
[t]he subject way has been in continuous existence at least since July 9, 1915 according to deed instrument Book 2303, Page 453, recorded at the Essex County South Registry of Deeds and the Parcel's subsequent title chain to present date . . . 2) [t]he subject way presently exists as a 16 foot wide gravel surfaced roadway with suitable horizontal and vertical alignment sufficient to service the three (3) dwellings presently located thereon and serviced thereby; 3) the existence of the way is also documented on United States Geological Survey maps dated since 1942.
Exh. 20. Based on these notes, the board endorsed the 1993 ANR plan because it found that: (1) each lot had "frontage on a way in existence when the subdivision control law became effective" in Amesbury; (2) this way had, "in the opinion of the . . . board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting . . . or served" by the way and for the installation of municipal services; and (3) each lot had at least 125 feet of frontage on such way. G.L. c. 41, §81L; O'Pray, 27 LCR at 391; see School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70 , 81 (1982) ("It is axiomatic in statutory construction that the word 'shall' is an imperative
.").
Thus, the board's endorsement of the 1993 ANR plan only means that the board found that on March 22, 1993, Lots 2, 3, and 4 on the plan each had at least 125 feet of frontage on a way in existence when the subdivision control law became effective in the city "that had sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting or served by the way and for the installation of municipal services." O'Pray, 27 LCR at 392. The board's ANR endorsement "does not purport to declare that any of the lots depicted are 'buildable,'" and other issues, including "[z]oning, environmental, and waste disposal issues, for example, remain open to be ruled on by agencies, local or State, having jurisdiction." Gates, 48 Mass. App. Ct. at 395. In particular, as Harris points out, neither the 1993 nor the 1994 ANR plans establish whether the right-of-way in question meets the definition of a "Street" and thus can serve as "Lot, Frontage" along a "Lot Line, Front" as those terms are defined in the bylaw. The application of those provisions to the Wright property and the grant of the foundation permit is discussed below.
III. Lot Frontage
"The general and familiar rule is that a [by-law] must be interpreted according to the intent of the [legislative body] ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Nasca v. Board of Appeals of Medway, 27 Mass. App. Ct. 47 , 50 (1989). The bylaw requires that a lot have minimum frontage on a street. Wright asserts that notwithstanding the definitions of "Lot, Frontage," "Lot Line, Front" and "Street" under the bylaw, the grant of the foundation permit was proper based on the fact that the lot has over 125 feet of frontage on the right-of-way. "Lot, Frontage" is defined in the bylaw as "[t]he horizontal distance measured along the front lot line between the points of intersection of the side lot lines with the front lot line." Exh. 5. "Lot Line, Front" is defined as "[t]he property line dividing a lot from a street (right-of-way). On a corner lot, the owner shall designate one street line as the front lot line." Exh. 5. "Street" is defined as "[a] way which is over 24 feet in right-of-way width and is dedicated or devoted to public use by legal mapping or by any other lawful procedure." Exh. 5. This language means that lots must have frontage on a street, and only ways that are 24 feet in width and are dedicated or devoted to public use qualify as a "Street" under the bylaw. The language sets forth two alternatives for a street to be dedicated or devoted to public way: (1) by being "dedicated or devoted to public use by legal mapping," or (2) by being "dedicated or devoted to public use by . . . any other lawful procedure." Exh. 5. Read narrowly, the language requires, at a minimum, a showing that the street is at least 24 feet in width and is "dedicated or devoted to public use by legal mapping or by any other lawful procedure." Exh. 5. Wright can demonstrate that, through the statutory process, the prescriptive process, or the now- unlawful dedication process, the right-of-way in question has become a public way. See Fenn, 7 Mass. App. Ct. 80 , 83-84 (1979). This he has not yet done. Alternatively, Wright must demonstrate that the right-of-way has been devoted to public use. As evidence of devotion to public use, Wright highlights evidence that on December 12, 2000, the Town of Amesbury designated Birchmeadow Road as ". . . eligible for expenditure of public funds for the removal of snow and ice from private ways open to public use in accordance with MGL, Chapter 40, Section 6c." Exh. 12. Exactly what this means in connection with the intent of the bylaw is a questions of fact. Whether or not Birchmeadow Road has been dedicated or devoted to public use, therefore, is a question of fact, inappropriate for summary judgment.
Here, Wright's reliance on Nasca, supra, is misplaced. In Nasca, the Appeals Court interpreted a bylaw amendment changing the frontage requirement in response to a court case; because of the amendment, the definition of "street" in the bylaw was rendered ambiguous. Nasca, 27 Mass. App. Ct. at 49. There is no evidence on the record here that at any point the city amended the language of the bylaw in response to any of the court cases that have been filed regarding whether this right-of-way should be used as frontage for Wright's property. There is no inconsistency in the language of the bylaw, and no cited amendments to it. In fact, the zoning bylaw's definition of lot frontage has remained unchanged since at least 1980. Exh. 34, pg. 26-28. Whether the right-of-way in question is dedicated or devoted to public use is a question of fact, inappropriate to be determined on summary judgment.
IV. Res Judicata
Res judicata includes both claim preclusion and issue preclusion. See Heacock v. Heacock, 402 Mass. 21 , 23 n. 2 (1988). "Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." O'Neill v. City Manager of Cambridge, 428 Mass. 257 , 259 (1998) quoting Blanchette v. School Comm. of Westwood, 427 Mass. 176 , 179 n.3 (1998). The purpose of claim preclusion "is 'based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.'" O'Neill, 428 Mass. at 259 quoting Heacock, 402 Mass. at 24. Three elements are required to claim preclusion: "(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits." DaLuz v. Dep't of Correction, 434 Mass. 40 , 45 (2001) quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933).
Similarly, issue preclusion "prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." Heacock, 402 Mass. at 23 n. 2. Before denying a party the opportunity to relitigate an issue, "a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication." Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 , 134 (1998). "Additionally, the issue decided in the prior adjudication must have been essential to the earlier judgment." Id. at 134-135. "Issue preclusion can be used only to prevent relitigation of issues actually litigated in the prior action." Kobrin v. Bd. of Registration in Medicine, 444 Mass. 837 , 844 (2005). The prior adjudication does not have to be before a court; "[a] final order of an administrative agency in an adjudicatory proceeding . . . precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction." Tuper, 428 Mass. at 135 quoting Stowe v. Bologna, 415 Mass. 20 , 22 (1993).
In this case, neither claim preclusion nor issue preclusion bars Harris's claims against Wright. Res judicata may only be enforced when there is a final judgment on the merits in the prior adjudication. In the prior adjudication, the Ebacher Realty Trust and others challenged the approval of the Wrights' associated building permits, the ZBA found that Birchmeadow Road was not sufficient to constitute frontage for the disputed lots, the Ebacher Realty Trust filed suit in Superior Court to enforce the ZBA decision, and the parties then entered into a settlement agreement. Exh. 27. Wright claims that this settlement agreement bars the alleged relitigation of whether or not Birchmeadow Road is a way sufficient to constitute frontage. While the settlement agreement was signed on March 14, 1995, the issue here is that the settlement agreement never resulted in a final adjudication on the merits. Exh. 27.
A clause in the agreement stated:
Upon the payment of $25,000 to Laurie Ebacher and upon the execution, delivery and recording of the $15,000.00 note and mortgage to MWP, Inc., the parties shall execute and file a Stipulation of Dismissal of both civil actions, with prejudice and without costs. The parties shall obtain such Nisi Orders from the Land Court as necessary to conclude the settlement of the cases prior to the dismissal of the suits.
Exh. 27. The reported agreement never resulted in a stipulation of dismissal of the two cases in question, 94 MISC 203319 and 94 MISC 209893. [Note 2] Both cases presently remain open. Exh. 29; Def. SOF ¶ 58; Pls. SOF ¶ 58. All of the terms of the release of the settlement had to be satisfied in order to reach a final adjudication of the case on the merits. While Harris disputes privity with the Ebacher Realty Trust and asserts that the issue in the prior adjudications was similar to, but not identical with, the issue in this case, the court need not consider these issues because res judicata does not apply without final adjudication. There exists a question of whether or not the parties' failure to obtain nisi orders from the Land Court to conclude the settlement of the cases was an oversight, and whether or not the subsequent parties to their predecessors, Wright and Harris, should still be bound by the settlement agreement. Since fact questions exist, Wright is not entitled to summary judgment and Harris's claims are not precluded by the prior settlement negotiations with Wright family members.
V. Title Claim
Wright presents a series of recorded deeds and plans to support his legal right to pass and repass over Birchmeadow Road from the non-registered portion of the Wright property. Assuming that Wright could establish an interest in the right-of-way as appurtenant to the recorded land portion of the Wright property, Harris has alleged extinguishment of that right.
Mere non-use does not outright extinguish an easement created in a deed. Lemieux v. Rex Leather Finishing Corp., 7 Mass. App. Ct. 417 , 421 (1979). While intent to abandon a recorded easement can support a finding of extinguishment, without such a finding
there must be an element of adverse use by the owner of the servient estate inconsistent with the continuance of the easement, or acts by the owner of the dominant estate of such conclusive and unequivocal character as manifest a present intent to relinquish the easement or such as are incompatible with its further existence.
Willets v. Langhaar, 212 Mass. 573 , 575 (1912). "[O]ccupation of land by the servient tenant not irreconcilable with the rights of the dominant tenant is not deemed to be adverse and therefore does not extinguish such rights." New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153 , 158 (1931). "A use of the servient tenement, to have the effect of extinguishing an easement in it, must be wrongful," which gives "rise to a cause of action in favor of the owner of the easement." Desotell v. Szczygiel, 338 Mass. 153 , 159 (1958) quoting Delconte v. Salloum, 336 Mass. 184 , 189 (1957). "To do this it must either interfere with a use under the easement or have such an appearance of permanency as to create a risk of the development of doubt as to the continued existence of the easement." Id., quoting Delconte, 336 Mass. at 189. "To wholly extinguish an easement by prescription, the 'acts of the servient tenant [must be] utterly inconsistent with any right of the dominant tenant, manifestly adverse to every claim by it, and incompatible with the existence of the easement' for at least the prescriptive period of twenty years." Cater v. Bednarek, 462 Mass. 523 , 528 n.16 (2012) quoting New England Home for Deaf Mutes, 276 Mass. at 159. Put alternatively, "a servient tenant's adverse acts must render use of an easement 'practically impossible for the [twenty-year] period required for prescription." Post v. McHugh, 76 Mass. App. Ct. 200 , 204-205 (2010) quoting New England Home for Deaf Mutes, 276 Mass. at 159.
Applying this concept, "[t]he maintenance of fencing impeding passage across the entire width of a right of way . . . is totally inconsistent with the right of passage and, if continued for the prescriptive period, wholly extinguishes the right." Yagjian v. O'Brien, 19 Mass. App. Ct. 733 , 737 (1985). "Where the acts of the servient tenant render the use of only part of a right of way impossible, the easement is extinguished only as to that part." Id. at 736-737. So, when a defendant placed gates at both ends of a way, it was not so inconsistent or irreconcilable with the plaintiffs' rights as to cause a complete extinguishment of those rights because the way was still available for "use during the day by foot or vehicular traffic." Lemieux, 7 Mass. App. at 423. Additionally, "the structures located within the way, and the uses conducted within the easement, did not block its entire width but rather left a portion of the way available for use by the plaintiffs and others." Id. The Lemieux court thus found that since the "acts of the servient tenant render[ed] the use of only part of a right of way impossible, [that] the easement is extinguished only as to that part." Id., quoting Pappas v. Maxwell, 337 Mass. 552 , 557 (1958).
Harris asserts her predecessor-in-interest installed a guardrail blocking the right-of-way, and that the guardrail remained for several years. Wright asserts that the guardrail was installed in 1992, and removed in 2005. Wright cites the 2005 Amesbury ZBA Decision as evidence that the guardrail was removed on the right-of-way that year, because it was imposed as a condition for the variance granted to Harris' predecessor-in-interest. Exh. 42. While removal may have been imposed as a condition of the variance, there exists no evidence in the record that the guardrail was actually removed that year. Thus, there is not enough evidence in the record to determine the amount of years the guardrail existed on the ground, and this question of fact is inappropriate to be determined on summary judgment.
Harris alleges that her predecessor-in-interest, Laurie Ebacher, also took action in court to prevent the way being used for frontage and lot access. Ebacher challenged the Land Court's determination of the rights in the way as part of the registration case. See Wilson v. Ebacher, 3 Mass. App. Ct. 721 (1975). Harris asserts that the Wilson v. Ebacher stipulation, entered two months after the Appeals Court decision, was allegedly designed to limit the rights in the right-of-way to "travel," in lieu of further proceedings before the court. Exh. 37, pg. 1. This language in the stipulation is less broad than the original language used by the court. Exh. 37, pg. 4. Wright asserts an independent basis for its right to use the subject way for access to and from the Wright property, and that Wright's use is not limited to only travel usage. The title claim is fact intensive there are facts in dispute on each side. Thus, this claim is inappropriate for summary judgment.
Conclusion
For the foregoing reasons, the Summary Judgment Motion is DENIED. A status conference is set down for July 24, 2020, at 9:15 am.
SO ORDERED
TRACY HARRIS vs. CITY OF AMESBURY ZONING BOARD OF APPEALS, WILLIAM LAVOIE, MATTHEW VINCENT, ROBERT OREM, DAVID HARASKE, SHARON McDERMOT and DONNA COLLINS, as they are Members of said BOARD, DENIS A. NADEAU, as Building Commissioner for the City of Amesbury, and GARY B. WRIGHT, Individually and as Trustee of ZACHARY'S COVE REALTY TRUST