DONALD E. WILLIS, JR., and PRISCILLA ANN WILLIS vs. STEPHEN BANNON, EDWARD ABRAHAMS, DANIEL BAILEY, BILL COOKE, and KATE F. BURKE, as they are Members of the Selectboard of the Town of Great Barrington, and 26 MANVILLE, LLC

Introduction

26 Manville, LLC (26 Manville) proposes to construct an apartment complex on lots and within the layout of the abutting private way known as Manville Street in Great Barrington, Massachusetts. 26 Manville obtained a special permit from the Great Barrington Selectboard (Selectboard). Donald E. Willis, Jr. and Priscilla Willis (the Willises) own a property on Manville Street, in which their daughter lives. They appealed the special permit under G.L. c. 40A, §17, and later amended their complaint to add a claim that they have an easement by estoppel over Manville Street with which 26 Manville's proposal interferes. 26 Manville has countered with a claim under M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), to relocate the easement by estoppel to accommodate their project. The parties have put aside their zoning issues to focus in these cross-motions for summary judgment on whether the easement by estoppel may be relocated. As set forth below, the court finds that 26 Manville's proposed relocation would make the Willises' easement by estoppel longer, decrease its width, increase the burden on the Willises' use, and decrease the easement's utility. 26 Manville may not relocate the Willises' easement by estoppel as it proposes to do.

Procedural History

The Willises filed their Verified Complaint on November 13, 2018, appealing a decision of the Selectboard under G.L. c. 40A, §17. On February 11, 2019, the Willises filed Plaintiffs Motion to Amend Complaint and Appeal Pursuant to MGL Chapter 40A, Section 17. The motion was allowed and the First Amended Verified Complaint, amending the complaint to add claims for easement by estoppel and easement by prescription, deemed filed at the case management conference on February 22, 2019. On February 14, 2019, the defendant 26 Manville filed its Answer to the First Amended Complaint, raising among its affirmative defenses a claim that it has the right to relocate the claimed easements. On June 27, 2019, the Willises filed their Motion to Amend Complaint. The Motion to Amend Complaint was allowed and the Second Amended Verified Complaint (Amended Compl.) deemed filed on June 28, 2019; the same day, the parties filed a Stipulation of Dismissal dismissing the claim on easement by prescription. Thus, the claims under the Second Amended Verified Complaint are Count I, G.L. c. 40A, §17; Count II, easement by estoppel; and Count III, permanent injunction.

On October 3, 2019, 26 Manville filed 26 Manville, LLC's Motion for Summary Judgment (Motion for Summary Judgment), 26 Manville, LLC's Statement of Undisputed Facts in Support of its Motion for Summary Judgment (Facts), 26 Manville, LLC's Brief of Fact and Law in Support of its Motion for Summary Judgment, and 26 Manville, LLC's Appendix in Support of its Motion for Summary Judgment. On November 5, 2019, the Willises filed the Cross-Motion of Donald E. Willis, Jr. and Priscilla Ann Willis for Summary Judgment and Opposition to 26 Manville's Motion for Summary Judgment (Cross-Motion for Summary Judgment), Plaintiffs' Responses to 26 Manville, LLC's Statement of Undisputed Facts in Support of its Motion for Summary Judgment and Statement of Additional Undisputed Facts, Memorandum in Support of Plaintiffs' Cross-Motion for Summary Judgment and in Opposition to 26 Manville's Motion for Summary Judgment, Appendix of Donald E. Willis, Jr. and Priscilla Ann Willis in Support of Motion for Summary Judgment, and the Expert Affidavit of Joel E. Stein. On November 12, 2019, 26 Manville filed 26 Manville, LLC's Reply Memorandum in Support of its Motion for Summary Judgment and 26 Manville, LLC's Statement of Undisputed Facts in Support of its Motion for Summary Judgment. The cross-motions for summary judgment were heard on November 14, 2019, and taken under advisement. This Memorandum and Order follows.

Summary Judgment Standard

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 is to draw "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). Where the non-moving party bears the burden of proof, the "burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Regis College, 462 Mass. at 291-292.

Facts

The following facts are undisputed:

1. The Willises own the property at 24 Manville Street, Great Barrington, Berkshire County, Massachusetts (Willis property). First Amended Compl. ¶ 1.

2. 26 Manville is a Massachusetts limited liability company with a regular place of business at 13 Pothul Drive, Great Barrington, County of Berkshire, Massachusetts. 26 Manville owns the properties at 21, 26, and 28 Manville Street, Great Barrington, Berkshire County, Massachusetts (Manville property). First Amended Compl. ¶ 4.

3. Manville Street is a dead-end private way running from South Main Street on its east side to form a "tee" on its west side along lots abutting a railroad right of way. The Manville Street right of way is 50 feet wide. The Willis property is halfway down the length of Manville Street and is shown as lot 11 on the plan attached hereto as Exhibit A. The 26 Manville property consists of the three lots on either side of Manville Street where it meets the tee and the lots abutting the railroad right of way, shown as lots 7, 8, and 9 on the plan attached hereto as Exhibit A. App. SB0001.

4. 26 Manville proposes to demolish the three existing single-family homes on the 26 Manville property and the west end portion of the Manville Street to construct a mixed-use development called "Manville Place." Manville Place is proposed to consist of 47 apartment units of single, two, and three bedrooms and one commercial space. First Amended Compl. ¶ 15-16, App. SB0003.

5. The Willises brought this action under G.L. c. 40, §17, to appeal a decision by the Selectboard that granted a special permit to 26 Manville allowing Manville Place to have an increased impervious area by more than 15% or 2500 square feet. First Amended Compl. ¶ 3, Exhibit B.

6. 26 Manville concedes that the Willises have an easement by estoppel over Manville Street from South Main Street on the east side, to and over the tee on the west. Fact ¶¶ 1.

7. Donald Willis had actual knowledge of the railroad track and had walked around the track prior to purchasing the property. One of the reasons Mr. Willis decided to purchase this property was because it was located near the end of the street and his ill and disabled daughter, who now lives in the property, could walk to and along the tracks. Mr. Willis and his daughter took walks on the easement and the tracks on multiple occasions after purchasing the property. App. SB0008, Pl. App., Dep. D. Willis 19:11-24, 29:5-24, 30:1- 24, 31: 1-24.

8. The Manville Place project consists of 3 buildings, numbered 3, 4, and 5, a road, and parking areas. Under the proposal, building 5 infringes on the northern segment of Manville Street and building 4 infringes on the southern segment of Manville Street. Plans showing the Manville Place project are attached as Exhibits B and C. Facts ¶¶ 4, App. SB0003, SB0004.

9. 26 Manville seeks to relocate the Willises' easement by estoppel over Manville Street to a paved road that "loops" around the perimeter of Manville Place, with exception of the northeast corner where there will be parking lots. The width of the original easement (Manville Street) is 50 feet. The width of the proposed relocated easement varies from 12 feet to 22 feet (less than 25% to 50% of the original width). App. SB0003.

10. The only way for residents of the apartment to access their property is by Manville Street from South Main Street. Compl. ¶ 20.

Discussion

26 Manville agrees, as it must, that the Willises have an easement by estoppel to pass over the entire length of Manville Street, from Main Street to where it passes by the 26 Manville property and along the tee near the tracks. See, e.g., Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 , 677-678 (1965); Goldstein v. Beals, 317 Mass. 750 , 755 (1948); Estes v. DeMello, 61 Mass. App. Ct. 638 , 643-644 (2008); Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 481-482 (1989). The sole issue in these cross-motions for summary judgment is whether 26 Manville may relocate the easement by estoppel as it requests under the rule in M.P.M. Builders, LLC, supra. Under M.P.M. Builders, a servient estate owner can seek permission from the court to change the location or dimensions of an easement only if the "change [does] not significantly lessen the utility of the easement, increase the burdens on the use and enjoyment by the owner of the easement, or frustrate the purpose for which the easement was created." Id. at 91-92; Martin v. Simmons Props., LLC, 467 Mass. 1 , 12 (2014). Thus, the relocation is not acceptable if the new location is longer, the burden on the easement holder increases, and the utility of the easement materially lessens. See Webster Ventures, LLC v. McCormick, 27 LCR 54 , 56 (2019), aff'd, 97 Mass. App. Ct. 1120 (2020) (Webster Ventures II); Shajii v. McDade, 25 LCR 716 , 720-721 (2017); Johnson v. Bohenko, 24 LCR 596 , 605-606 (2016); Rhodes v. Decas, 19 LCR 410 , 411-412 (2011). As set forth below, 26 Manville's proposed relocation of the Willises' easement by estoppel over Manville Street does all three. Its proposal does not meet the standard under M.P.M. Builders for the relocation of an easement. [Note 1]

Alteration in Length and Shape of the Easement

The relocation of an easement is not acceptable if the length and/or shape of the relocated easement is longer or less convenient to use than the original easement. Shajii, 25 LCR at 720; Rhodes, 19 LCR at 412. In Rhodes, the servient estate owner built a swimming pool that impeded on the dominant estate holder's express easement, which she used to carry her kayak to the nearby bay. Id. at 410-411. The servient owner provided two alternative routes for relocating the easement, both of which were over 200 feet longer than the current route. Id. at 410, 412. The court held that those options were not acceptable options for relocation of the easement. Id. at 412. It reasoned that a longer route, among other factors, would significantly change the use and enjoyment of the easement because the easement holder would have to carry the kayak the extra length to the bay. Id. In Shajii, the dominant estate owner had an easement over a shared driveway. Shajii, 25 LCR at 717-718. The servient estate owner changed the shape of the driveway from a relatively straight and obstacle-free path to a circular one and placed a fountain in the middle. Id. at 720. The court held that the relocated easement was not acceptable because it significantly lessened the utility of the driveway. Id.; compare Carlin v. Cohen, 73 Mass. App. Ct. 106 , 110 (2008) (relocation of a 10-foot path to a beach was reasonable because the relocation was shorter, easier to maintain, and on a relatively flat surface, thus not lessening the utility of the easement or increasing the burden on its use and enjoyment).

Here, the new location of the easement proposed by 26 Manville would increase the burden on the Willises' use and enjoyment of the easement because it would make the easement longer and lessen its utility. Under the Manville Place project, buildings 4 and 5 will be placed on Manville Street in a way that renders the Willises' easement by estoppel over Manville Street unusable at its current location. Like the easement relocation in Rhodes, the proposed new location for the easement loops around the perimeter of the project, making it longer. Also, similar to the easement in Shajii, the original easement consisting of Manville Street is straight, whereas the relocated easement would be circular with buildings in the middle. Some parts of the path would have parking spaces on the side, creating additional obstacles in travelling on the easement. Mr. Willis and his daughter have used the easement to travel to the end of the street to the tee in order to access the railway track, where they take walks up and down the track. Increasing the length and altering the shape of the path would significantly burden the Willises' enjoyment of the way by making the railway further away and more difficult to reach. Such and increase burden and lessened utility means the proposed relocation of the easement by estoppel does not meet the M.P.M. Builders standard.

Reduction of the Easement Area

Relocation of an easement is not acceptable if the area of the relocated easement is significantly less than that of the original easement. Shajii, 25 LCR at 720; Johnson, 24 LCR at 605-606. In Shajii, the servient estate owner of a shared driveway changed the width of the driveway from between 17.5 to 20 feet to approximately 10.5 to 12 feet. Shajii, 25 LCR at 720. The court found that the new easement was unreasonable because, among other factors, the width of the way had been significantly decreased. Id. at 720. In Johnson, the multiple residents of a residential park all held an easement over a 99-foot-long lakefront shoreline. Johnson, 24 LCR at 604-605. The servient estate owner who owned part of the land burdened by the easement sought to reduce the easement area by 24.80 feet. Id. at 605. The court held that this reduction was unreasonable on the grounds that the easement was created to be used by multiple residents and that, because the shoreline was not a long and wide beach to start with, a reduction of the area by 25% would be significant and lessen the utility of the easement. Id. at 605-606.

Here, the new easement proposed by 26 Manville is not acceptable because it significantly reduces the area of the Willises' easement by estoppel. Like the relocated easement in Shajii, the width of the proposed new easement here is significantly reduced. The Manville Street right of way is 50 feet wide. According to 26 Manville's site plan, the width of the new easement varies between 12 feet to 22 feet. This reduces the width by 25% to 50%. As in Johnson, significantly reducing the area of the easement will interfere with the utility of the easement because it would be much more difficult for the Willises to travel Manville Street by car or other vehicle. 26 Manville's proposed new easement is unacceptable because it would lessen the utility of the Willises' easement by estoppel.

Frustration of Purpose

The new location for the easement is not acceptable if purpose of the easement is frustrated. Webster Ventures II, 27 LCR at 56. In Webster Ventures, the easement holders used the easement road to access an abutting reserve, which they cut across to get to a main road. Id. at 55-56; Webster Ventures, LLC v. Dumore, 24 LCR 769 , 771-772 (2016), aff'd, 97 Mass. App. Ct. 1120 (2020). The proposed relocation of the easement shortened the road by 10 feet, making it impossible to reach the reserve. Webster Ventures II, 27 LCR at 55. The court held that this alteration was unacceptable because it would frustrate the purpose of the easement by decreasing the benefit enjoyed by the easement holders. Id. at 55-56.

Here, the easement relocation decreases the benefit enjoyed by Willises because it would take away parking spaces along Manville Street. The Willises have an easement by estoppel over the entire way of Manville Street and one of the uses permitted by the easement is to park their cars on the road. Thus, the easement by estoppel gives Willises the right to park their cars anywhere legally permitted on Manville Street. It has not been made clear whether residents of Manville Street will be allowed to park their cars on the parking spaces that will be provided in the relocated easement in "Manville Place". If they are not allowed to park, then the relocation frustrates at least one purpose of the original easement.

In short, 26 Manville's proposed relocation of the Willises' easement by estoppel over Manville Street would significantly lessen the utility of their easement, increase the burdens on the Willises' use and enjoyment of the easement, and frustrate the purpose for which the easement by estoppel exists. M.P.M. Builders, LLC, 442 Mass. at 91-92. 26 Manville's proposed relocation does not meet the test for relocation of an easement, and its request to relocate the easement by estoppel cannot be approved.

Conclusion

For the foregoing reasons, the Motion for Summary Judgment is DENIED, and the Cross-Motion for Summary Judgment is ALLOWED. A declaration shall enter that 26 Manville may not relocate the Willises' easement by estoppel over Manville Street as proposed. Because this action remains open, a status conference is set down for August 5, 2020, at 9:30 am.

SO ORDERED.

EXHIBIT A

EXHIBIT B

EXHIBIT C