Peter Armstrong, both individually and as trustee of the P.A. Realty Trust (Armstrong), has moved for summary judgment in his favor on all the claims in his Second Amended Verified Complaint. As set forth below, with respect to count I, seeking a declaration with respect to a restriction on Armstrongs property, the court declares that the defendants Town of Marshfield and the Board of Public Works of the Town of Marshfield are not bound by the restriction. With respect to count II, bringing a claim for trespass, summary judgment is denied, as there are material facts in dispute and the decision of the Zoning Board of Appeals has no res judicata effect on this action. Armstrongs motion to supplement and the defendants motions to strike are allowed in part and denied in part.
Armstrong filed his Verified Complaint on July 21, 2011, naming as defendants Michael Valenti, Robert Shaughnessy, and Stephen Hocking, as they constitute the Board of Public Works for the Town of Marshfield (BPW) and naming as party-in-interest the Massachusetts Department of Environmental Protection, Division of Fish and Wildlife Natural Heritage and Endangered Species Program (DEP). BPW filed Defendants Answer and Counterclaim on August 15, 2011. On September 23, 2011, Armstrong filed his Answer to the Defendants Counterclaims, his Motion to Amend its Verified Complaint, and his Amended Verified Complaint. The Amended Verified Complaint added the Town of Marshfield (Town) as a defendant, made additional factual allegations, and added claims. The case management conference was held on September 30, 2011. BPW filed its Amended Answer and Counterclaim on November 18, 2011, and Armstrong filed his Answer to the Defendants Amended Counterclaims on March 6, 2012. Armstrong filed his Second Amended Verified Complaint on September 6, 2012. By agreement of the parties, on November 28, 2012, the Second Amended Verified Complaint was deemed filed, served, and answered by the defendants.
On September 12, 2012, Armstrong filed Plaintiffs Motion for Summary Judgment as to Trespass and for Declaratory Judgment as to the Extent of the Deed Restriction (Summary Judgment Motion), having filed Plaintiffs Memorandum of Law in Support of their Motion for Summary Judgment on September 6, 2012. BPW and the Town filed Defendants Opposition to Plaintiffs Motion for Summary Judgment, Defendants Response to Plaintiffs Concise Statement of Material Facts and Defendants Statement of Additional Material Facts upon which There Is No Dispute, and the Affidavit of Robert W. Galvin, Esq. on October 12, 2012. The case was reassigned to the Hon. Robert B. Foster on November 13, 2012. The court heard argument on the Summary Judgment Motion on November 28, 2012, and took the Summary Judgment Motion under advisement.
On April 1, 2013, Armstrong filed Plaintiffs Motion to Supplement Its Motion for Summary Judgment with Newly Discovered Facts, along with his Memorandum of Law in Support Thereof (Motion to Supplement). On April 3, 2013, BPW and the Town filed Defendants Motion to Strike and Opposition to Plaintiffs Motion to Supplement Its Motion for Summary Judgment (Motion to Strike Armstrong Affidavit). On April 24, 2013, Armstrong filed the Affidavit of James F. Creed, Jr. (Creed Affidavit). On May 3, 2013, BPW and the Town filed Defendants Motion to Strike Affidavit of James F. Creed, Jr. (Motion to Strike Creed Affidavit).
Motion to Supplement and Motions to Strike
Pursuant to Land Court Rule 6, the court decides the Motion to Supplement, the Motion to Strike Armstrong Affidavit, and the Motion to Strike Creed Affidavit without oral argument. In the Motion to Supplement, Armstrong seeks to put before the court in support of the Summary Judgment Motion (a) a copy of the warrant for the April 22, 2013 Town of Marshfield Special and Annual Town Meeting, which includes, as article 10, a proposal to take by eminent domain an access and grading easement in connection with the project at issue in this case (warrant) and (b) the Affidavit of Peter Armstrong (Armstrong Affidavit). The BPW and the Town concede that the warrant is correct, but argue that it is irrelevant. They also argue that the Armstrong Affidavit should be struck because it contains hearsay, is speculative, and is not based on personal knowledge. The Motion to Supplement is ALLOWED IN PART and the Motion to Strike Armstrong Affidavit is ALLOWED IN PART, as follows. The warrant is admitted as part of the summary judgment record. Paragraphs 1 through 3 of the Armstrong Affidavit are admitted as part of the summary judgment record. Paragraph 4 of the Armstrong Affidavit is struck, as it is not relevant. Paragraph 5 of the Armstrong Affidavit is struck, as it purports to describe a document that is otherwise already in evidence, namely the warrant. Paragraph 6 of the Armstrong Affidavit is admitted as part of the summary judgment record. Paragraphs 7 through 10 of the Armstrong Affidavit are struck, as they describe hearsay statements and, to the extent the statements are not hearsay, they are not relevant. Paragraph 11 of the Armstrong Affidavit is struck as it contains speculation and the statements of Armstrongs belief are not relevant.
In the Creed Affidavit, Mr. Creed states that he attended the 2013 Special and Annual Marshfield Town Meeting on April 22, 2013 and describes the vote on article 10 of the warrant. The Motion to Strike Creed Affidavit is ALLOWED. Mr. Creeds statement of the vote is not admissible. It is a hearsay statement of the action of town meeting. The town meeting vote must be presented to the court by an official certification of the town clerk of Marshfield before it may be accepted as evidence. See Massachusetts Guide to Evidence § 803(8)(A) (2013 ed.).
Summary Judgment Standard
Summary judgment may be entered if the pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with affidavits . . . show that there is no genuine issue of 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 Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).
Based on the record, the court finds the following undisputed facts:
Armstrong is an individual with the last and usual address of 44 Allerton Road, Marshfield, MA, and is Trustee of the P.A. Realty Trust under a declaration of trust dated May 17, 2000, and recorded with the Plymouth County Registry of Deeds (registry) at Book 18531, Page 10 (Trust). The defendants Michael Valenti, Robert Shaughnessy, and Stephen Hocking are elected members of the BPW. The BPW administers the Department of Public Works (DPW). The defendant Town (collectively with BPW the Municipal Defendants) is a municipal corporation duly organized under the laws of the Commonwealth of Massachusetts. The Municipal Defendants have a principal place of business at Town Hall, 870 Moraine Street, Marshfield, MA.
By a deed dated and recorded in the registry at Book 31665, Page 346 on November 3, 2005, Armstrong acquired title individually to a parcel of real estate located off of Grove and Ferry Streets in Marshfield containing approximately ten (10) acres, and identified on the Maps of the Marshfield Assessors as parcel G-12-29-02 (10 Acre Parcel). By a deed dated May 17, 2000 and recorded in the registry at Book 18531, Page 15 on May 18, 2000, the Trust acquired title to a parcel of real estate located off of Grove and Ferry Streets in Marshfield, abutting the 10 Acre Parcel, containing approximately seven (7) acres (7 Acre Parcel).
On November 16 and 17, 2001, the Trust swapped a portion of the 7 Acre Parcel with land owned by the Town. The lots resulting from this land swap are shown as Parcels B, C, D, and E on a plan entitled Compiled Plan of Land in Marshfield, Ma. Being A Subdivision of Parcels H12-01-01B & G12-29-03 Grove & Ferry Streets Drawn for P.A. Realty trust Scale 1 = 80 19 March 2001 Revised 11 April 2001, and recorded in the registry at Plan Book 45, Plan 50 on December 12, 2001 (the Land Swap Plan). A copy of the Land Swap Plan is attached to this Order. Under the land swap, the Town granted the lot shown as Parcel D on the Land Swap Plan to the Trust, by a deed dated November 15, 2001 and recorded in the registry at Book 21089, Page 231 on December 20, 2001. As a result of this conveyance, the Trust owned Parcel B and Parcel D, a combined six (6) acre parcel with access from both Grove and Ferry Streets in Marshfield, and designated as Assessors Parcel H 12-01-09A (6 Acre Parcel). The Trust, in turn, conveyed to the Town the 2-acre lot shown as Parcel E on the Land Swap Plan, by a deed dated November 16, 2001 and recorded in the registry at Book 21089, Page 229 on December 10, 2001.
As part of the land swap, the Town granted the following easement to the Trust burdening Parcel E: An easement over that of the Grantors land shown as 25 WIDE ACCESS EASEMENT FROM PARCEL D TO BRIDAL TRAIL AND FERRY STREET, on [the Land Swap Plan] (the Easement). The Easement goes on to provide:
Said easement is for all purposes for which roadways are commonly used in Marshfield including but not limited to access and egress, installation and maintenance of utilities from Parcel D to Ferry Street, and shall be appurtenant to and run with the combined Lots of D & B as shown on said plan.
The Easement was recorded in the registry at Book 21089, Page 233 on December 10, 2001.
In turn, the Town conveyed Parcel D to the Trust subject to a restriction on that parcel and on Parcel B (the Restriction):
Said parcel is conveyed subject to the restrictions that said Parcel B is to be combined with Grantees Parcel D on [the Land Swap Plan] and the combined parcel used solely for one single family dwelling with the customary buildings and uses associated with the keeping of horses and farming. Any commercial agricultural use of said Parcel B shall be subject to the provisions of Marshfield Zoning By-Laws regardless of the size of the combined parcel. No other additional land is to be added to the combined parcel that will be accessed thru Parcel B on said plan.
Parcel E was designated as Assessors Parcel G12-29-07, and is held in the care, custody, and control of the Marshfield Conservation Commission. A portion of Parcel E is designated for drainage purposes by the DPW.
In or about 2001, the BPW obtained funding under a Federal Wellhead Protection grant administered by DEP for three projects in Marshfield. One of the projects was for the construction of a drainage facility for the protection of the Littles Creek Aquifer District, within which all of the real property that is the subject of this action is located. The BPW proposed to construct the drainage facility on Parcel E, in order to control and treat the street drainage from Ferry Street and the Silver Pines neighborhood of Marshfield. A detention basin, sediment forebay and associated structures were partially constructed on Parcel E between 2004 and 2006. The partially completed structures were principally constructed by, and under the supervision of the DPW. [Note 1] DPW at no time sought, applied for, or obtained any permitting for their construction of the drainage facility and associated structures to be located on the Town Land. [Note 2]
Although the precise extent of the work is disputed, the parties agree that at least some grading of the detention basin and sediment forebay related to the drainage work was done on Armstrongs 10 Acre Parcel and the Trusts Parcel D. Before the Town began construction of the detention basin and sediment forebay, Armstrong and Rod Procaccino, the town engineer and a DPW employee, had a conversation in which Armstrong agreed to let the Town commence work on his property, saying Hey, Ill work with you, you work with me. At some time after this work was done, Armstrong declined the Towns request that he grant it a slope and access easement for the grading. As of the date of the Complaint, the drainage facility and associated structures are partially completed and the facility does not have key structural elements.
All of the real property which is the subject matter of this action is located within a Priority Habitat Designation for the Protection of a Species of Special Concern as determined by party-in-interest DEP. By letter dated March 12, 2010, the BPW filed an appeal with DEP seeking an adjudicatory hearing of the determination allowing Armstrong to remove gravel and perform certain preliminary clearing work on Parcels B and D, the 6 Acre Parcel. BPW took the position that the Restriction, which runs to the benefit of the Town in connection with the Trusts use of the 6 Acre Parcel, limit[s] its use solely for one single family dwelling with the customary buildings and uses associated therewith and for the buildings and uses associated with the keeping of horses and farming.
On or about April 26, 2010, Marshfield convened its Annual and Special Town Meeting. The Warrant for the Special Town Meeting included article 12, proposed by the BPW, which sought to take by eminent domain an access and grading easement of 50 width on the 6 Acre Parcel, with no land damages. The explanation of that article, in pertinent part, states as follows:
The proposed easement of an adjacent private property H12-01-9A will provide access for maintenance of the drainage area and allow the grading adjacent to be maintained to control storm water.
This proposed article was withdrawn, never presented to Town Meeting or adopted by Town Meeting, and no taking was made.
On May 13, 2010 the building commissioner issued his response to a zoning enforcement request from Armstrong (the Building Commissioner Determination). The Building Commissioner Determination stated, in part: The partially constructed detention basins on Lot G12-29-07 [Parcel E] built by DPW require special permits from the Zoning Board of Appeals and the Planning Board under Section 5.04, table of use regulations and Article XIII, § 13.03, Subsection § 3.2 and 3.3 of the Zoning By Law. The Determination went on to state: A letter will be sent to DPW to enforce the Zoning By Law. At this time I cannot determine the encroachment onto your clients property.
Armstrong appealed the Building Commissioner Determination to the Marshfield Zoning Board of Appeals (ZBA). On August 24, 2010 the ZBA issued a decision overturning the Building Commissioner Determination (ZBA Decision). In the ZBA Decision, the ZBA determined that the partially constructed drainage facility and associated structures were constructed without permits and partially on the land of Armstrong and the Trustee. The ZBA ordered DPW to remedy the violation within fourteen days of the decision. On August 26, 2010, the building commissioner sent DPW a letter informing it of the ZBA Decision, stating that it had fourteen days after the date of the letter to seek special permits.
To date the BPW/DPW has not taken any action to obtain the special permit and has not restored Armstrongs properties to their original grades. Armstrong has not permitted the Town to enter his properties to remove material and restore the grades. When asked by the Town if he would permit the Town to remove the materials to which he now objects, Armstrong stated that he wont allow the Town to remove the materials because its a very sensitive [habitat] area and even if the Town were to indemnify him, he would object because permitting authorities would still hold him liable.
The Warrant for the Towns Special and Annual Town Meeting on April 22, 2013, included article 10, proposed by the BPW, which, like the previous article 12, sought to take by eminent domain an access and grading easement of 50 width on the 6 Acre Parcel, with land damages in the amount of a sum of money to be paid. The explanation of that article, in pertinent part, states as follows:
The proposed easement on adjacent private property H12-01-9A will provide access for maintenance of the drainage area and allow the grading adjacent to be maintained to control storm water.
Armstrong seeks summary judgment on three issues. First, he moves for a summary judgment in his favor on his claim that the Municipal Defendants have trespassed on the 10 Acre Parcel and Parcel D. Second, he seeks a declaration that the BPWs construction on Parcel D violates the Restriction. Finally, he seeks a declaration that the ZBA Decision is res judicata as to the BPW.
Trespass. A trespass is an invasion of the plaintiffs interest in the exclusive possession of his land, as by an entry upon it. Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 90-91 (2005). To prevail on a trespass claim, the plaintiff must prove that (a) the plaintiff has actual and lawful possession of the property, and (b) the defendants entry was intentional and illegal. Gillespie v. Aliot, 14 LCR 429 , 430 (2006); see New England Box Co. v. C&R Constr. Co., 313 Mass. 696 , 707 (1943). It is undisputed that Armstrong has actual and lawful possession of the 10 Acre Parcel and Lot D. It is also undisputed that the Municipal Defendants performed some kind of work on Armstrongs land in connection with the drainage facility it was constructing between 2004 and 2006; in other words, there is no dispute that they entered Armstrongs property. The issue is whether that entry was illegal and, if so, when it became illegal.
It is undisputed that when the Municipal Defendants first entered Armstrongs property, they did so with Armstrongs permission. Because they entered with permission, they were not trespassers, but rather had, at least, a license from Armstrong. An entry made with the consent of the owner is not a trespass, Gage v. Westfield, 26 Mass. App. Ct. 681 , 695 n.8 (1988), and a license . . . excuses acts done by one on land in possession of another that without the license would be trespasses. Baseball Publishing Co. v. Bruton, 302 Mass. 54 , 55 (1938). A license is revocable at the will of the possessor of the land. Id. at 56. Armstrong alleges that he revoked the license in or around May 2010, when he sought enforcement from the building commissioner. Upon revocation of the license, the Municipal Defendants had the right to remove their chattels from the property for a reasonable time, after which they would become trespassers. Id. The work that the Municipal Defendants did on the property was not removed after Armstrong sought enforcement. On the face of this account, the Municipal Defendants could be held to have trespassed on Armstrongs property.
The Municipal Defendants have raised several defenses which create issues of fact precluding summary judgment on the trespass claim. First, they claim that Armstrongs trespass claim is barred by the three-year statute of limitations for torts. G.L. c. 260, § 2A. The complaint in this action was filed on July 21, 2011, which means that the trespass claim is time-barred if it accrued before July 21, 2008. The record is unclear on whether Armstrongs 2010 enforcement request operated as a revocation of his license; the request itself is not in the record. Drawing inferences in the Municipal Defendants favor, a factfinder could conclude that Armstrong withdrew his consent to their entry on his property prior to 2008, in which case the trespass claim would be barred.
Assuming that the license was revoked at some time, Armstrong argues that the work that the Municipal Defendants did on his property has not been removed, and therefore constitutes a continuing trespass. A single encroachment on ones land, even if it results in ongoing damage to the property, is a single trespass. Carpenter v. Texaco, Inc., 419 Mass. 581 , 583 (1995). On the other hand, when a trespass is caused by the erection of a permanent structure, that trespass continues as long as the offending structure remains. Porter v. Clarendon Natl Ins. Co., 76 Mass. App. Ct. 655 , 659 (2010). The distinction between a single and ongoing trespass matters here, because if the presence of the work on Armstrongs property is an ongoing trespass, Armstrongs trespass claim is not barred by the statute of limitations, and he may obtain the injunctive relief he seeks. There is a factual dispute, however, as to the precise nature of the work that the Municipal Defendants performed on Armstrongs property and what remains there. Armstrong describes what the Municipal Defendants placed on this property as structural elements related to the detention basin and sediment forebay; if so, these are permanent structures that would constitute a continuing trespass. The Municipal Defendants, on the other hand, describe the work as grading, with no structural elements. If so, this is the kind of intrusion onto the property that constitutes a one-time trespass with ongoing damage. This factual dispute cannot be resolved on a motion for summary judgment.
There is a further dispute of fact that precludes allowing the Summary Judgment Motion. Armstrongs revocation of his license, whenever it occurred, did not immediately convert the Municipal Defendants into trespassers. As discussed, upon the revocation, the Municipal Defendants had a reasonable time to remove their chattels from the affected property and restore it. Baseball Publishing Co., 302 Mass. at 56. It is undisputed that Armstrong has not permitted the Town to enter his properties to remove material and restore the grades. When asked by the Town if he would permit the Town to remove the materials to which he now objects, Armstrong stated that he wont allow the Town to remove the materials because its a very sensitive [habitat] area and even if the Town were to indemnify him, he would object because permitting authorities would still hold him liable. If Armstrongs refusal to permit the Municipal Defendants to enter his property is not reasonable, then the Municipal Defendants cannot be held to have failed to remove the offending materials. Further facts may show that Armstrong acted reasonably in refusing the Town access, but at this time it appears there is a dispute of fact as to whether Armstrongs concerns are valid and reasonable, and whether the Municipal Defendants should be required to address those concerns or whether they have unreasonably been barred from curing their alleged trespass.
The Municipal Defendants argue that their reliance on an oral agreement between Procaccino and Armstrong that Armstrong would grant the Town a slope and access easement gives rise to an equitable easement. An equitable easement is an express easement which lacks an essential element, such as an acknowledgment or seal and may be enforceable as an equitable easement under the doctrine that equity treats that as done which ought to be done. 28 A.L. Eno, Jr. & W.V. Hovey, Real Estate Law §8.18 (4th ed. 2004). Courts are hesitant to apply an exception which would enable enforcement of an equitable easement based on an oral agreement. Houghton v. Rizzo, 361 Mass. 635 , 640 (1972); Frank v. Visockas, 356 Mass. 227 , 228 (1969) (oral agreement by defendants that lots would be sold subject to restrictions was not enforceable without a writing). An equitable easement is not a proper remedy for the Municipal Defendants in this action.
The alleged oral agreement does support a different affirmative defense, however. The Municipal Defendants argue that they were not trespassing even after the license may have been revoked because they entered the property in reliance on Armstrongs oral agreement with Procaccino to grant the Town a slope and access easement. They argue that this oral agreement is enforceable notwithstanding the statute of frauds, which traditionally operates to bar suit [u]pon a contract for sale of lands or any interest in or concerning them [u]nless the promise, contract or agreement is in writing and signed by the party to be charged therewith. G.L. c. 259, § 1. Equity justifies the specific enforcement of an oral agreement for the conveyance of land, such as an easement, if the party seeking enforcement shows that, in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, it has changed its position that injustice can be avoided only by specific performance of the agreement. Hurtubise v. McPherson, 80 Mass. App. Ct. 186 , 188-189 (2011); Hickey v. Green, 14 Mass. App. Ct. 671 , 673 (1982). The Municipal Defendants claim to have reasonably relied on Armstrongs alleged promise to Procaccino to convey a slope and access easement by performing work on the property with Armstrongs knowledge, only to have him refuse to convey the easement. See Hurtubise, 80 Mass. App. Ct. at 187-190 (specific performance ordered where defendant orally agreed to land swap with plaintiff, plaintiff began work on defendants land, and two months later defendant objected to plaintiffs use of the land). The facts are disputed as to what Procaccino and Armstrong said to each other, whether there was any agreement between them, and whether any such agreement contained enough definite terms to be enforceable. See id. at 190-191. If the facts are construed in the Municipal Defendants favor, they could support a finding of reliance. Because there remain issues of fact on the question of reliance, summary judgment cannot enter in Armstrongs favor. [Note 3]
Restriction. As part of the land swap, the Town asked for, and Armstrong agreed to, the Restriction on the use of Parcels B and D. The Restriction provides: Said parcel is conveyed subject to the restrictions that said Parcel B is to be combined with Grantees Parcel D on [the Land Swap Plan] and the combined parcel used solely for one single family dwelling with the customary buildings and uses associated with the keeping of horses and farming. Any commercial agricultural use of said Parcel B shall be subject to the provisions of Marshfield Zoning By-Laws regardless of the size of the combined parcel. No other additional land is to be added to the combined parcel that will be accessed thru Parcel B on said plan.
Armstrong seeks a declaration that the Restriction bars the Municipal Defendants from undertaking the detention basin and sediment forebay work on Parcel D, because these structures are not a single family dwelling or the customary buildings and uses associated with the keeping of horses and farming. Armstrong is not entitled to such a declaration; rather, the Municipal Defendants are entitled to a declaration that the Restriction does not bar the work they have performed on Parcel D.
A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways. Labounty v. Vickers, 352 Mass. 337 , 347 (1967); see Whitney v. Union Ry. Co., 11 Gray 359 , 363 (1858). Here, the person entitled to possession of the land is Armstrong. The person holding the right under the Restriction to compel Armstrong or anyone else entitled to possession of Parcel D not to use it in the specified ways is the Town. Armstrong cannot enforce the Restriction against the person who is benefited by the Restriction and who is the sole person with the right to enforce it.
When one party seeks a declaratory judgment, the Court is obligated to make a declaration of the rights of all the parties, even on summary judgment. 146 Dundas Corp. v. Chemical Bank, 400 Mass. 588 , 589 n.4 (1987); City of Boston v. Massachusetts Bay Transp. Auth., 373 Mass. 819 , 828 (1977); see Mass. R. Civ. P. 56(c). Based on the undisputed facts concerning the Restriction, summary judgment shall be entered in favor of the Municipal Defendants and against Armstrong declaring that the Restriction does not bar the Municipal Defendants activities to date on Parcel D.
Res judicata. Armstrong argues that the ZBA Decision operates as res judicata to bar the Municipal Defendants from defending this action. Res judicata encompasses both claim preclusion and issue preclusion. Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005). 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. Id., quoting ONeil v. City Manager of Cambridge, 428 Mass. 257 , 259 (1998). 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. Dalkouras v. Brockton Zoning Bd. of Appeals, 20 LCR 10 (2012) quoting Heacock v. Heacock, 402 Mass. 21 , 23 n.2 (1988). Before precluding a party from relitigating 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). Leaving aside whether the ZBA Decision is a final judgment on the merits or whether the parties in this action are the same as or are in privity with the parties to the ZBA Decision, res judicata does not apply to this action because the issue in the ZBA Decision is not identical to the issue in this action. The ZBA Decisions final determination reached only the narrow conclusion that the partial construction work by the Town on Armstrongs property does in fact require a permit. The issue of the Towns requirement of a permit for the work done is not before the Court in this current matter. The Municipal Defendants are not barred by the doctrine of res judicata from defending this action and bringing their claims.
In short, the Summary Judgment Motion is denied, except that a declaration shall enter in favor of the Municipal Defendants on the question of the Restriction, declaring that the Restriction does not bar the work they have performed on Parcel D.
For the foregoing reasons, the Motion to Supplement is ALLOWED IN PART. The Motion to Strike Armstrong Affidavit is ALLOWED IN PART. The Motion to Strike Creed Affidavit is ALLOWED. The Summary Judgment Motion is ALLOWED IN PART AND DENIED IN PART. Partial summary judgment shall enter declaring that the Restriction does not bar the work that the BPW or the Town has performed on Parcel D. A telephone status conference is set down for June 14, 2013 at 9:30 a.m. to discuss further proceedings in this action.
By the Court (Foster, J.)
[Note 1] The Municipal Defendants deny that Town employees were the only persons who performed work on the partially completed structure, alleging that Armstrong also performed work relocating a headwall and provided materials.
[Note 2] The Municipal Defendants deny that any permits were required in connection with the work.
[Note 3] Armstrong argues that the two warrant articles at two different Town Meetings proposing a taking for the project are evidence that the Municipal Defendants do not believe that Armstrong granted an easement. Whatever weight such evidence carries on this issue, to consider it on a motion for summary judgment would require the improper drawing of an inference in the moving partys favor. See Willitts, 411 Mass. at 203.