HomeMy WebLinkAbout2155 MAIN STREET 215 WQio SYC 0
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• • TOWN OF BARNSTABLE BUILDING PERMIT APPLICATION •
' Map 2, S h . arc 0 / Application # 6 /(D & ()
3
Health Division. 4h/j:► Date Issued -1 4, pp
ConservationyDivision Application Fee
Planning Dept. . 6c4v Permit Fee
Date Definitive Plan Approved by Planning Board �cA AO-- 2 6-2Historic - OKH_ _ Preservation / Hyanniss
Project Street Address 5 d'ed✓ 6- ( 1I771 /.
Village - /ei. ,,i 514 13 i r
Owner Oili-Ai V1.--.Q.- i )/ ,v'k) Address 2 g' 47v r �: w is IA-M-y" hitl its a)
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Telephone /
Permit Request 2 v ; l " Jr1,.�) 5Th/ "11� ` /frt
Square feet: 1st floor: existing propose , 3 n. , •r: existing propose�"fotal new v4ya 0
Zoning District Flood Plain Groundwater Overlay
Project Valuation ,4-9. 666 Constructi'n T e 4.ew.e___
Lot Size .3a 6 _A , "e .fa red: ❑Yes ❑ No If yes, attach supporting documentation.
Dwelling Type: Single Family Two ' s r ily ❑ Multi-Family (# units; ,.
Age of Existing Structur-.. N d Hi` .ric House: ❑Yes Cleo On Old King's Highway: [➢-es ❑ No
Basement Type: V F. I ❑ Cra Walks t ❑ Other
Basement Finished i{-a (sq .) - -R___ Basement Unfinished Area (sq.ft) 1 63 5-
Number of Baths: Full: e i;'ing new Half: existing new
Number of Bedrooms: 4 , existing w
liae
Total Room Count (not includi • . , hs): existing new__ First Floor Room Count
7
Heat Type and Fuel:/ ❑ Gas ❑ Oil ❑ Electric ❑ Other
S'es Central Air: a' ❑ No Fireplaces: Existing New . Existing wood/coal stove: ❑Yes 14
Detached garage: 0 existing ❑ new size
Pool: ❑ existing ❑ new size _ Barn: 0 existing °_0 net size_
Attached garage: ❑ existing e ew ❑ existing ❑ new size Other: O_ a, t}-
Y .v� (I
4 CZ
Zoning Board of Appeals Authorization ❑ Appeal # Recorded ❑ -�u
Commercial ❑Yes 'Noth If yes, site plan review # ) 4
Current Use V (�i --n.4 . Proposed Use S') 1 t_ ,: ! ' /C -
APPLICANT INFORMATION
(BUILDER OR HOMEOWNER)
Name /14-.ur AA. A/4A7&Ii Telephone Number C-o cr- •- -5"d y -,2,66
Address /) )( 2-3-3 7 License # a 4b, 0 9 4 lS
/l/I , 7—gq'r Home Improvement Contractor# /) I ® 4.)
1
Email XI t ip v 26v./k/1-- 0 d o7%n A r 1 Worker's Compensation #
ALL CONSTRUCTION DEBRIS RESULTING FROM THIS PROJECT WILL BE TAKEN TO
SIGNATURE DATE
FOR OFFICIAL USE ONLY
APPLICATION#
DATE ISSUED
- MAP/PARCEL NO.
ADDRESS VILLAGE
OWNER
t _
DATE OF INSPECTION:
FOUNDATION
FRAME .- :
INSULATION
FIREPLACE
ELECTRICAL: ROUGH FINAL
PLUMBING: ROUGH FINAL
GAS: ROUGH FINAL
FINAL BUILDING
DATE CLOSED OUT
ASSOCIATION PLAN NO.
/
(.---IttE
° of Barnstable _ ' �e l e
>PostThis Card So That it is Visible From-the Street Approved:Plans Must be Retained on Job and this Card.Must be Kept , ke
s �
ing
BARA'51A8(E, - r . ,,; z# i as a asp?+, x u �.." -t.e '� � �, nm ,� ,t } �� a a , Y
,�` Posted Until,Final Inspection Has Been Mader 7 Y . _,: ,,� - t ?y°<° :;7 g j[��
163q. \p $ ,.,as 1" fi ... +,., n4 : s r. V ,-:4 ' , y - ,• ,:, V I ^i . , �j tl�
" Where a Certificate of Occupancy is Required,such Building hall Not be Occupied until a Final Inspection has been:made._ ..,,
Permit No. B-16-366 Applicant Name: LAWRENCE M. NADZEIKA Map/Lot: 236-014
Current Use: Zoning District: SPLIT
Date Issued: 04/01/2016
Permit Type: New Construction-1 or 2 family Residential Expiration Date: 10/01/2016 Contractor Name: LAWRENCE M. NADZEIKA
Location: 2155 MAIN ST./RTE 6A(BARN.), BARNSTABLE ,, Est. Project Cost: $500,000.00 Contractor License: 111841
Owner on Record: QUINN, DANUTE µ' Permit Fee - ' $2,675.00
Address: 28 QUINNS WAY 1.�: ,'_„ Fee Paid: I ° $2,675.00
MASHPEE,MA 02649 1 ; .,' Date -' 4/1/2016
, ,,,,.. - ---)6P_/__ e___EJM
Description: Build new Single Family Home
Project Review Req : ,
i
--. - .. .-
Building Official
This permit shall be deemed abandoned and invalid unless the work authorized by this permit is commenced within six months after issuance.
All work authorized by this permit shall conform to the approved application and the approved construction documents for which this permit has been granted.
All construction,alterations and changes of use of any building and structures shall.be in compliance with the local zoning by-laws and codes.
This permit shall be displayed in a location clearly visible from access street or road and shall be maintained open for public inspection for the entire duration of the work until the completion of the same.
I
The Certificate of Occupancy will not be issued until all applicable signatures by the Building and Fire Officials are provided on n this permit.
Minimum of Five Call Inspections Required for All Construction Work: t I
1.Foundation or Footing
2.Sheathing Inspection f
3.All Fireplaces must be inspected at the throat level before firest flue lining is installed
4.Wiring&Plumbing Inspections to be completed prior to Frame Inspection
5.Prior to Covering Structural Members(Frame Inspection)
6.Insulation
7.Final Inspection before Occupancy '
Where applicable,separate permits are required for Electrical,Plumbing,and Mechanical Installations.
Work shall not proceed until the Inspector has approved the various stages of construction.
"Persons contracting with unregistered contractors do not have access to the guaranty fund" (as set forth in MGL c.142A).
Building plans are to be available on site
All Permit Cards are the property of the APPLICANT-ISSUED RECIPIENT
k
ais.5 ens / io
SCHULZ LAW OFFICES, LLC
WILLIAM CHARLES PLACE
7 PARKER ROAD
OSTERVILLE, MASSACHUSETTS 02655-2034
TELEPHONE(508)428-0950
FACSIMILE(508)420-1536
ALBERT J. SCHULZ MICHAEL F. SCHULZ
aschulz@schulzlawoffices.com mschulz@schulzlawoffices.com
February 2, 2016
Thomas Perry, Building Commissioner
Town of Barnstable
200 Main Street
Hyannis, MA 02601
Re: Application for Building Permit
59 Dillon Lane
Lot 2, Plan Book 290,Page 43
Assessor's Map 236, Parcel 014
Owner:Danute Quinn
Dear Mr. Perry:
I met with you back in June of 2015 regarding the vacant land located at 59 Dillon Lane,
Barnstable, shown as Lot 2 on a 1974 subdivision plan recorded at Plan Book 290, Page 43
(Exhibit 1). The current owner is Danute Quinn under the deed from John R. Dillon, et al dated
March 21, 2014, recorded at Book 28045, Page 305 (Exhibit 2). On Wednesday, January 27,
2016, Ms. Quinn obtained a Certificate of Appropriateness from the Old Kings Highway Historic
District for the construction of a residential dwelling on Lot 2. I expect that Ms. Quinn will file a
building permit application with your office within the near future.
My client, John J. Dillon, Jr., owner of the real estate at 2171 Main Street(Map 237,
Parcel 39) objects to the issuance of any building permit on Lot 2. Lot 2 has no legal frontage on
Dillon Lane because Ms. Quinn, although she owns the fee in the portion of Dillon Lane that is
highlighted in orange on Exhibit 1 (Mr. Dillon owns the fee in the portion of Dillon Lane
highlighted in yellow), she has no easement over the portion of Dillon Lane owned by my
client.'
Factual Background
In March of 1974, my client's brother, Daniel F. Dillon and his wife, Sharon ("Daniel
and Sharon"), the owners of the real estate shown as Parcel 40 on Assessor's Map 237, and their
parents, John J. and Anne M. Dillon ("John and Anne"), the owners of the real estate shown as
Parcel 39 on Assessor's Map 237, filed a Subdivision Sketch prepared by Edward E. Kelley
("Kelley"), surveyor, dated March 29, 1974 ("Sketch Plan") (Exhibit 3) with the Barnstable
Planning Board ("Board"). The Sketch Plan depicted three (3) lots, two owned by Daniel and
Sharon(Lots 1 and 2) and one owned by John and Anne (Lot 3) and a proposed way called
Dillon Lane. The Sketch Plan also depicts the property line between the respective properties.
Based on the location of the respective property lines, the entirety of Dillon Lane was owned by
John and Anne for a distance of about 90 feet back from Route 6A, with the exception of a small
flare at Route 6A that was a portion of Daniel and Sharon's land. The portion of Dillon Lane
owned by John and Anne (now owned my client, John J., Jr. ("John, Jr.") is highlighted in
yellow on Exhibit 3 and the portion owned by Daniel and Sharon is highlighted in orange.
In late April of 1974, Kelley, as agent for Daniel and Sharon filed an Application for
Approval of Definitive Plan dated April 24, 1974 ("Application") with the Board that proposed
to subdivide the land owned by Daniel and Sharon, but not John and Anne's lot, into only two
lots and Dillon Lane (Exhibit 4). The Application states, among other things, that "appurtenant
to the land within the subdivision" is an "easement for a portion of Dillon Lane over land of
John J. Dillon et ux. "
Despite Kelley's statement in the Application, there is no instrument of record under
which John and Anne or their successors in title ever granted to Daniel and Sharon or their
successors any right to use the portion of Dillon Lane that lies within the boundaries of John and
Anne's (now John, Jr.) property. Conversely, there is no instrument of record under which
Daniel and Sharon or their successors ever granted to John and Anne or their successors any
right to use the portion of Dillon Lane that lies within the boundaries of Daniel and Sharon's
(now Quinn) property. See Affidavit of Albert J. Schulz, dated June 24, 2015 attached hereto as
1,Mr. Dillon has no easement over the portion of Dillon Lane owned by Ms. Quinn. He offered
to exchange easements with Ms. Quinn, but his offer has been rejected.
Exhibit 5. No portion of Dillon Lane has been constructed, but a portion near Route 6A is a
driveway providing access to John and Anne's (now John, Jr.) land. In March, 2014, the heirs of
Daniel F. Dillon sold Lot 2 to Danute Quinn for$1.00 (see Exhibit 2). My client's ownership in
the land at 2171 Main Street derives from the deed from John J. Dillon, Jr. and Rosemary S.
Dillon to John J. Dillon, Jr., Trustee, dated December 6, 2010, and recorded in Book 25063, Page
25 (Exhibit 6).
The above parcels have been the subject of several hearings before the Planning Board
("Board") during 2015. In early 2015, the Quinns filed a proposal with the Board,through their
attorney, Paul Revere, to modify subdivision 350. The matter was placed on the Board's
February 9, 2015 agenda for an informal discussion of the Quinn's proposed modifications to the
1974 approved plan. The Quinn's request was reviewed by Art Traczyk of the Town's Growth
Management Department. Mr. Trayczk prepared a Background Report for the Board (Exhibit
7), which contained, among other things, a statement that the Applicant(s) has been advised to
"Secure all rights necessary to make improvements within Dillon Lane. " See, Background
Report, at page 3, fourth full paragraph. The Quinn's application for modification was withdrawn
in June, 2015.
On July 10, 2015, over my client's objection, the Board endorsed a plan of Lot 1 on the
1974 subdivision plan(Exhibit 1) depicting a driveway easement over Lot 1.2 A note on the plan
reads as follows:
NOTE: THIS PLAN HAS BEEN PREPARED FOR THE PURPOSE OF
INDICATING PROPOSED ACCESS TO LOT 1 AND 2 PURSUANT TO §801-
12F. BOTH LOTS WILL SHARE A COMMON ACCESS OFF ROUTE 6A.
DRIVEWAY WILL BE CONSTRUCTED TO AT LEAST THE MINIMUM
STANDARDS REQUIRED BY THE BUILDING COMMISSIONER PRIOR TO
THE OCCUPANCY OF ANY DWELLING ON LOT 2.
I have attached to this letter a copy of§801-12F of the Rules and Regulations of the
Planning Board (Exhibit 8). I suggest that §12-F is not a substitute for the requirement that Ms.
Quinn establish that she has a right of access over Dillon Lane. In fact, she has no such access,
which Attorney Revere has admitted to the Board.
2 Lot 1 is owned by Ms. Quinn's husband, Thomas Quinn, under the deed recorded in Book
28045, Page 307. (Exhibit 9).
The above plan was recorded at the Barnstable Registry in Plan Book 660, Page 27
(Exhibit 10).3 By instrument dated October 2, 2015 and recorded in Book 29181, Page 182
(Exhibit 12), Thomas P. Quinn granted an easement to Danute Quinn over Lot 1 on the 1974
subdivision plan(Exhibit 1) to access Lot 2.
The issue in this case is the same issue that was litigated in the Land Court in the case of
Priscilla Dreier Crocker, Executrix under the Will of Crocker, et al, v. Katie E. Gruner, Land
Court Case 08 MISC 381675. In that case, the owner of real estate with frontage on Pilot's Way
in West Barnstable obtained a building permit from the Town to construct a single family
dwelling. The Land Court(Sands, J.) ruled that Gruner had no right to use Pilot's Way in any
manner because she did not possess a valid easement over Pilot's Way (Exhibit 13). Here,
Quinn possesses no easement to use Dillon Lane, in particular, no easement in the first 90 feet in
from Main Street(Route 6A), and, thus, no legal frontage on Dillon Lane.
For the above stated reasons, I respectfully request that barring proof by Ms. Quinn that
she holds an easement to use Dillon Lane, her application for a building permit for Lot 2 located
at 59 Dillon Lane based on the Easement (Exhibit 12), be denied.
Should you have any questions or wish to discuss this matter in more detail, please do not
hesitate to contact me.
Sincerely,
Albert J. Schulz
AJS/ssm
Enclosures
'See Memo from the Growth Management Department to Anne Quirk, Town Clerk, dated
August 5, 2015, recorded in Book 29132, Page 301 (Exhibit 11).
EXHIBIT 1
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• i SUBDIVISION PLAN OF LAND IN BARNSTABLE,MASS.
FOR
DANIEL FANO SHARON P.DILLON
APRIL PA,I9.39 34LE 1"3AO'
COWARD E.RELLEY
e REO.LAND SURVEYOR
i ,� x0i 08 CUMMAOUID,MASS. I°LATHS MAT MIS PLAN WM MCC IN
g a NAP MT r31.331.SD MO PARCAL AO BOARD ONS MO
ME MOMENT
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ce Ndj"a�^ w RAr41408 ON LOCA. AP°IL N ION REO.LAND
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S E1��W BY irHE BAHAT xnm PL0033 A NNINO
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°�°%NO x°iMv°- - APPROVAL OF THIS NOm lrtxr LaxEr�[n0s°Fvw Vmcel /1`�� —
q 4N71:1ALM n y, ASA.3e 0 ``:..
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AD NOTICE.
E,°m0 wrzJLLl.%B.W!4 RECEIVED'CARD NAA DEAN NS OP .. 4.4 4,0, .S-"A"4"- e'/ _
`•\ DEED REP.-U 1308 P0.09I AND 83.73S PO.21Y eARNSM°4 PLANNING POMO
EXHIBIT 2
Bk 2804-5 Ps 305 �1 1716
03-21-2014- a 02 = 33p
QUITCLAIM DEED
We,John R. Dillon of 72 Allen Road,Ashby,MA 01431, Teresa A. Foley f/k/a Teresa
A. Dillon of 711 Lumbert Mill Road, Centerville,MA 02632,Matthew B. Dillon of 232
Mockingbird Lane,Marstons Mills, MA 02648 and Amy E. Weymouth of 51 Geraldine
Road, Cotuit, MA 02635,the heirs of the Estate of Daniel F. Dillon,
for consideration paid of One and 00/100 Dollars($1.00),
grant all our right,title and interest to Danute Quinn,individually of 28 Quinn's Way,
Mashpee,MA 02649
y With QUITCLAIM COVENANTS
The land together with the buildings thereon in the Town of Barnstable, Barnstable
County, Commonwealth of Massachusetts,more particularly described as follows:
Being LOT 2 shown on a plan entitled"Subdivision Plan of Land in Barnstable,Mass.
for Daniel F. and Sharon P. Dillon,April 24, 1974, Scale: 1"=40', Edward E. Kelley,
ITJ Registered Land Surveyor, Cummaquid,Mass.",recorded in Barnstable Registry of
cn
Deeds in Plan Book 290, Page 43.
rnThe above described premises are conveyed subject to and with the benefit of all rights,
rights of way, easements, appurtenances,reservations and restrictions of record.
The undersigned Grantors hereby certify under the pains and penalties of perjury that the
o herein conveyed premises is not their principal residences and that there are no other
persons entitled to homestead rights in the conveyed premises.
For title, see Deed recorded in the Barnstable County Registry of Deeds in Book 7125,
Page 180.
lQ
Bk 28045 Pg306 #11716
Sf
Witness our hands and seals this.j day of March, 2014.
:�yUb-
John R.Dill
Teresa A. Foley f/k/a Teresa . illon
ti
atthew B. Dillon
Li y�� E. W mouth
COMMONWEALTH OF MASSACHUSETTS
Barnstable County:
On this 2,k day of March 2014, before me, the undersigned notary public,
personally appeared John R. Dillon, Teresa A. Foley f/k/a Teresa A. Dillon, Matthew B.
Dillon and Amy E. Weymouth ppA proved to me through satisfactory evidence of
identification, which were )1 V\C t to be the persons
whose names are signed on the preceding or attached document, and acknowledged to me
that they signed it voluntarily for its stated purpose and who swore or affirmed to me that
the contents of the document are truthful and accurate to the best of their knowledge and
belief.
Notary Public
My Commission Expires Vy(-?„0
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BARNSTABLE REGISTRY OF DEEDS 4,11Z������r"T"
EXHIBIT 3
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EXHIBIT 4
FORM C
APPLICATION FOR APPROVAL OF DEFINE .,�fl:sx LAN
R2 , 1974
(Where alternative paragraphs are provided, applicant is to select and compete the paragraph
pertinent to his case.)
BARNSTABLB PLA1 tTh G
'e/ BO , , 197
To the Planning Board of the Town of Barnstable
1. The undersigned applicant, being the owner of all land included within a proposed subdivision shown
on the accompanying plan, entitled J/)AN/G , A < ",";4A/3W
and dated ...rgf,?N - , 19 , submits such plan as a definitive plan of the
proposed subdivision and makes application to the Board for final approval thereof.
2. The land within the proposed subdivision is subject to the following easements and restrictions:
None
3. There are appurtenant to the land within the proposed subdivision and following easements and re-
strictions over the land of others:
//4,,e7'/0N pF G7/G-Gvn/ 0 /�7.2 G42c/Z>
OF ,Sic/ /4eg>"./- ET v
4. (a) A preliminary plan cf the proposed subdivision has not been submitted to the Board.
OR
(b) A preliminary plan of the proposed subdivision, to which the accompanying plan conforms, was
tentatively approved by the Board on iG , 19.2 .
OR
(c) A preliminary plan of the proposed subdivision was tentatively approved by the Board on
, 19 with modifications, which modifications have been incor-
•
porated in the accompanying plan.
5. The applicant agrees, if the definitive plan is approved, to construct and install all improvements
within the proposed subdivision required by the Rules and Regulations of the Barnstable Planning
Board as in force on the date of this application, and as modified and supplemented by the work
specifications and other requirements set forth in the statements attached hereto.
b. The applicant further agrees to complete all said required improvements within one year from the
date of approval of the definitive unless the Board approves a different period of time.
7. If the definitive plan is approved, the applicant agrees to record or register the plan in Barnstable
County Registry and agrees that even if otherwise authorized so to do by the filing of a performance
bond, applicant will not sell or offer to sell any of the lots within the subdivision until said plan is
so recorded or registered.
8. The applicant further agrees that if the definitive plan is approved, applicant will promptly at any
time thereafter when requested so to do by the Board; convey to the sewer District in form satis-
factory to the Board, title to sewers and the prescribed easements therefor. The applicant also agrees
to convey to the Town title to storm drainage improvements and easements therefor.
i
FORM C— Page 2 • •
9. (a) The applicant further agrees that before final approval of the definitive plan, the applicant will
cause to be filed with the Board a bond in form satisfactory to the Board, conditioned on the
completion of all required improvements in the time and manner prescribed, in a penal sum
sufficient, in the opinion of the Board, to cover the cost of such work, and executed by the ap-
plicant as principal and a surety company authorized to do business in the Commonwealth
and satisfactory to the Board as surety, or secured by the deposit with the Town Treasurer of
cash or negotiable securities in an amount equal to the penal sum established by the Board.
OR
(b) The applicant requests the Board to approve the definitive plan on condition that no lot in the
subdivision shall be sold and no building shall be erected or placed on any lot until the re-
quired improvements necessary to adequately serve such lot have been completed to the Satis-
faction of the Board.
10. This application is accompanied by an original drawing of the proposed definitive plan with three
black line contact prints and a fee of $15.00 to cover the cost of giving notice of a public hearing.
11. The owner's title to the land is derived under deed from t--a-04) /7- ZJ (`��! -Z0
•
dated ./%?�r.'g/• i /0 , 19 and recorded in Barnstable County District Registry of
Deeds, Book./30 , Page T' 7 , OR under Certificate of Title No. registered in
Land Registry District, Book , Page
Applicant ',
Address
A list of the names and addresses of the abuttors of this subdivision is attached. Verification will
be made by the Planning Board.
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EXHIBIT 5
AFFIDAVIT
•
I,Albert J. Schulz, on oath depose and state the following:
1. I am an attorney licensed to practice in the Commonwealth of Massachusetts, and
have been so licensed since January, 1977.
2. I have examined the title to the land described in the deed from Tidie A. Benttinen
to John J. Dillon and Anne M. Dillon, dated July 21, 1949, and recorded in Book 725,Page 277,
from July 21, 1949 to present. Based on that search I find no easement from John J. Dillon and
Anne M. Dillon or their successors in title to Daniel F. Dillon and Sharon P. Dillon or their
successors relating to Dillon Lane as shown on the plan of land prepared for Daniel F. Dillon and
Sharon P. Dillon recorded in Plan Book 290, Page 43.
3. I have also examined the title to the land described in the deed from Cora M.
Langfield to Daniel F. Dillon and Sharon P. Dillon, dated August 12, 1965, and recorded in
Book 1308, Page 497, from August 12, 1965 to the present. Based on that search I find no
easement from Daniel F. Dillon and Sharon P. Dillon or their successors in title to John J. Dillon
and Anne m. Dillon or their successors relating to Dillon Lane shown on the plan of land
prepared for Daniel F. Dillon and Sharon P. Dillon recorded in Plan Book 290, Page 43.
Signed under the pains and penalties of perjury on this 24th day of June,2015.
a/41,4171j
Albert J. Schulz
3
EXHIBIT 6
Bk 25063- F25 663763
12-07-2010 & 08256a.
Title Not Examined
DEED
WE, JOHN J. DILLON, JR. and ROSEMARY S. DILLON (a/k/a Rosemary
Dillon), husband and wife as tenants by the entirety, now of 89 Captain
Crosby Road, Centerville, MA 02632
for consideration of less than $100
grant to JOHN J. DILLON, JR., Trustee of the John J. Dillon, Jr. Trust u/a/d
December 6, 2010, see Abstract of Trust recorded herewith, with an
address of 89 Captain Crosby Road, Centerville, MA 02632
with QUITCLAIM COVENANTS, the land situated in Barnstable, Barnstable
County, Massachusetts, described as follows:
NORTHEASTERLY by Route 6A, a distance of Twenty-three and 66/100 feet
as shown on hereinafter mentioned plan;
SOUTHEASTERLY by land of Helen S. Coffey and William D. Knott distances
of Three Hundred Seventy-nine and 90/100 (379.90) feet, One Hundred
Twenty and 00/100 (120.00) feet, One Hundred Seventy-four and 83/100
(174.83) feet; Seventy-three and 76/100 (73.76) feet, Ninety-eight and
62/100 (98.62) feet, and One Hundred Seven and 94/100 (107.94) feet, as
shown on said plan;
SOUTHEASTERLY by land of Charles F. Crocker, a distance of Two Hundred
Twelve and 63/100 (212.63) feet as shown on said plan;
SOUTHEASTERLY by land of Charles F. Crocker, a distance of Two Hundred
Ten and 28/100 9210.28) feet, as shown on said plan;
NORTHWESTERLY by land of Daniel F. Dillon, distances of One Hundred
Twenty-three and 25/100 (123.25) feet, Two hundred Eighty-Four and
61/100 (284.61) feet, One Hundred Fifty-seven and 90/100 (157.90) feet,
and Seventy-Nine and 67/100 (79.67) feet as shown on said plan;
NORTHWESTERLY by land of Daniel F. Dillon, distances of One Hundred
Seventeen and 87/100 (117.87) feet, One Hundred Thirty-four and 00/100
(134.00) feet, Eighty-nine and 98/100 (89.98) feet, Two Hundred Sixty-
three and 74/100 (263.74) feet as shown on said plan.
Bk 25063 Pg 26 #63763
By a curve with a radius of 30.94 feet, a distance of fifty and 30/100
(50.30) feet as shown on said plan; and
NORTHWESTERLY by Route 6A, a distance of One Hundred Eleven and
98/100 (111 .98) feet.
Being that parcel of land described in "Plan of Land for the Town of
Barnstable, Ma., prepared for John J. Dillon" dated June 29, 1989, Yankee
Survey Consultants, 143 Route 149, Marstons Mills, Ma. 02648, as
recorded with the Barnstable County Registry of Deeds in Plan Book 462,
Page 42.
Said parcel contains 245,001 square feet, more or less, of which 19,593
•
square feet is subject to an easement for Dillon Lane as shown said plan.
Subject to and with the benefit of all rights, rights of way, restrictions,
reservations or easements of record.
Property address: 2171 Main Street, West Barnstable, MA
For title, see deed recorded at the Barnstable County Registry of Deeds in
Book 8220, Page 100.
WITNESS our hands and seals this 6th day of December, 2010.
, 'cPd /1 .
Jo n J. DilAst on, Jr.
R semary S. it n �`
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss.
On this 6th day of December, 2010, before me, the undersigned notary
public, personally appeared John J. Dillon, Jr. and Rosemary S. Dillon,
proved to me through satisfactory evidence of identification, which were
K/✓Oi IA1 io "f" , to be the persons whose names are signed on the
preceding or attached document, and acknowledged to me t t they signed
it voluntarily for its stated purpose. /"'t
-. -- Ronald J. Seidel, o iry Public
�,`�.y`{>. RONALD J.SEIDEL My comm. expire . 06/16/2011
�' ..: ?;i Notary Public
;t 4\ia ;.'''ommonwealth of Massachusetts
°r,N f:,' A Commission ExpimsJun 16,2011
vv.
BARNSTABLE REGISTRY OF DEEDS
EXHIBIT 7
1
3
Town of Barnstable
Growth Management Department
Jo Anne Miller Buntich, Director
Background Report t
Subdivision 35o—Dillon Lane
Discussion Item-February g, 2015
Date: Fe ruary 4,2015
To: Planing Board
From: i\C r •
Art 1 raczyk, Regulatory Review/Design Plan er II'
Land Owners 59 Dillon Lane—Danute Quinn P
2171 Main St. Route 6A- John J. Dillon Jr.Trustee of John J. Dillon Jr.Trust
2159 Main St. Route 6A—Thomas P. Quinn
Assessor's Map/Parcel: 236 parcels 014 and 237 parcels 039& 040
Zoning:
RF-Residential F and RPOD-Resource Protection Overlay District and RG—Residential G
t.
Background
Subdivision No.350—"Dillon Lane"was endorsed by the Planning Board on August 5,1974 in accordance
with MGL Chapter 41 Section 81A-81.GG"Subdivision Control Law"and the Board's Rules and Regulations tin effect at that time. The subdivision plan was recorded at the Registry of Deeds in Plan Book 290 page
r
43. The Applicant at that time was Daniel F.and Sharon P. Dillon. ReIcording of the subdivision created
one new developable lot-59 Dillon Lane,West Barnstable. .
The subdivision originally involved two existing parcels fronting on Route 6A-21S9 and 2171 Main Street
Route 6A. I
■ The 2159 Main St.Route 6A parcel consisted ofowne t:
Daniel F.and Sharon P. Dillon. The subdivision divided that pa cel into two lot by the
#x a 3..3-acret.
lot containing an existing dwelling and a new developable Lot#2,a 3.62-acre lot accessed via la
A
Dillon Lane.
w The 2171 Main St.Route 6A parcel was owned at that time by John J.and Anne M. Dillon. That
parcel was not fully defined at the time of the subdivision and although Dillon Lane occupied part i
of the parcel,it was not further divided into any new developable lots.
The subdivision plan referenced that"only one new building permit shall issue for land shown on this
plan." A restrictive covenant to that effect was also recorded in Book 2076 page 348. However,it appears
to staff that the covenant is recorded against the 2159 Main St.Route 6A parcel only and a question
remains if it would apply to the undefined parcel 2171 Main St.Routei6A. C
H:
In August of 1989,a'perimeter plan'of land was filed for the 2171 Main St. Route 6A parcel. That plan fully ts`
defined the parcel and was filed at the Registry in Plan Book 462 page 42 as an 83X plan in that it showed ,,
no new division of a lot nor any new street lines. The plan defined the parcel as being
easement for Dillon Lane of 0.45 acres. That plan defined the common property line much aseit did in the
subdivision plan. That line following an existing stone wall that also defined the centerline for much of
Dillon Lane.
F'•
At the time of the subdivision both lots met applicable 1-acre zoning. The adoption of the Resource
Protection Overlay District(RPOD)2-acre minimum lot area did not apply to duly recorded lots that met
zoning prior to the November 2000 adoption of the RPOD. The lots treated in this subdivision are
protected independent building lots today. And will remain so as long as there is no reconfiguration of the
subject lots(no new plan recorded).
During the 4o year span of this subdivision, no work was done to improve the way and no building permit
application for Lot 2 was made. All of the land involved in the subdivision remained within the Dillon
family until 2014.
On March 21,2014,the heirs of the Estate of Daniel F. Dillon sold Subldivision Lot#1 21 6A)to Thomas P.Quinn and Subdivision Lot 2o I ( 59 Main St. Route
ute 28045 pages 307 and 305). Today, 2171 Main Street is owned by John J.Dillllon,Jruinn(Trustee of the John J.
Dillon,Jr.Trust.' Deeds recorded Book
(;
On Dillon Lane:
Dillon Lane is a 4o foot wide undeveloped private way created by thel197L subdivision plan.The roadw
itself is approximately 600 feet in length ending in a cul-de-sac and intended to serve the lots hown onay
the recorded subdivision plan. Located within part of Dillon Lane is al existing historic stone wall that runs
some 16o-feet and defines the property line between 2159 and 2171 Main St.Route 6A. 59 Dillon Lane
remains subject to a restrictive covenant that requires the roadway to be developed to"current
subdivision requirements"in effect in 1974.
In summary those standards were:
k
The road was required to be 22-feet wide. Road base to be excavated to a minimum of ao inches
and"all loam, loamy material,clay,organic or other perishable or spongy materials be removed to
a depth directed by the Town Engineering Department". Boulders oft/2 cubic yards or more
removed to sub-grade of not less than 14 inches. Appropriate refilled and compacted as approved
by the Town. A minimum road pavement of 22-feet wide(inluding road berms) with 2.5 inch :
bituminous concrete pavement—type I-2-laid in two coursed2. Cul-de-sac required an outside
pavement diameter of 8o-feet with a minimum of 20-feet of pavement. Roadway shoulders of 4-
feet minimum each side with 3"inches of loam and seeded.'
The covenant also suggests that the Town will accept the way once br ilt. This is no longer the case. The
Town has long since ceased assuming responsibility for subdivision w ys especially when they serve no
other transportation needs nor have a general public purpose.
Staff Comments: f.
Attorney Paul Revere Ill has requested a discussion with the Board concerning reduced standards for
[
construction of the way and possible future modification of the subdivision. This is not a preliminary plan
review and any comment by the Board does not obligate the Board to grant a waiver. Any final
commitment by the Board to grant specific waivers should only be made upon recite of an engineered plan k
Deed recorded in Book25063 page 25.
z �.
According to the profiles submitted back in 1974,the roadway maximum slope would be 3.3%. Today's
Regulation allows a maximum slope to not exceed io%. '
wr
Paraphrased from the Subdivision Rules and Regulations in effect at the time the subdivision was approved.
3
2 f:
•
•
•
and after review and recommendation by the Board's engineer,Staff;and by the West Barnstable Fire
•
Department on that engineered plan.
In addition,construction of the way will also impact a historic stone wall situated
on Lane and
any alteration of that wall will require review and approval of the Old Kings Highway Historic l Commission.
The option of relocating part,or all,of the stone wall has been recommended by staff.
Staff has met with others regarding modification of the subdivision
Given that it appears the maximum number of new developable lot that t could be accessed froback to November m the wa
is 2,some reduction from strict compliance with the subdivision roadjconstruction standardsy
order and can be justified to protect the character of the area and neighborhood. Staff has al oay be in
recommended to the applicant that the lots be connected to public water and all utilities be located
underground.
Staff recommended that the first 3o-feet of the roadway be paved and that this section should be wide
enough to accommodate two vehicles—one entering and one exiting the roadway.
Prior to any formal application to the Board for a modification of the Subdivision,the Applicant has
advised to: p been
R
Secure all rights necessary to make improvements within Dillpn Lane,
Develop suitable stamped engineered roadway plans including drainage,
R Secure review and approval of the roadway plan from the Town's engineer and Fire District,and
• R
• Secure any certificate of demolition/appropriateness from the Old Kings Highway Historic District
Commission for alteration of the stone wall. I
It has also been noted that today's Subdivision Regulations would require:
(a) A Development Agreement be executed that would require tlhe roadway to be completed within
12 months from its start. I
I
(2) A Form S executed and recorded against all the lots using the!Way requiring them to be
responsible for all repair and maintenance of the road.
(3) And upon completion of the way,a Form M, Certificate of Completion be requested,issued and
recorded.
The Applicant has been advised that the Board would have to secure i n outside consultant to inspect th development of the roadway and installation of utilities in accordance with the Board's Rules Secion 3-e Hiring of Outside Consultants.
Attach: Associated documents
Copy: Applicant
•
t
Cl'',
3
EXHIBIT 8
Town of Barnstable, MA Requirements for Submission and Approval of Plans Page 1 of 3
Chapter 801: Subdivision Regulations
Article III: Requirements for Submission and Approval of Plans
§ 801-10 Applicant.
A. The applicant shall be the owner of all the land shown on the plan application,or be authorized to act upon behalf of the
owner. Evidence of such authorization shall be provided to the Board with the application.
B. The applicant shall file with the Planning Board proof of ownership of the land and,if a nonowner applicant,proof in writing of
authority to act for the owner.A copy of the most recently recorded deed and the most recent real estate bill or certification
of assessment to the owner from the Board of Assessors shall be submitted with all plan applications. Evidence of payment of
all property taxes for each parcel shown on the plan shall also be submitted.
§ 801-11 Certification of plans.
All plans submitted to the Board shall include a certification as to their conformance with these rules and regulations and as to the
validity of their content executed by a land surveyor or professional engineer,or both,as required by the Board.The Board
suggests that the owner be represented at any meeting with the Board by the person responsible for the design of the subdivision
and the preparation of the plans.
§ 801-12 Adequacy of access.
A. General. No plan shall be endorsed as not requiring approval under the Subdivision Control Law,and no subdivision plan shall
be approved unless each building lot to be created by such plan has adequate access as intended under the Subdivision
Control Law,Chapter 4i,General Laws,§§8i-K through 8i-GG.
B. Standards of adequacy.Streets within a subdivision shall have adequate access if they comply with the standards established in
Articles VI and VII of this regulation. Existing ways providing access to the streets within a subdivision,or providing access to
lots said not to be within a subdivision,shall be considered to provide adequate access only if there is assurance that prior to
construction on any lots,access will be in compliance with the following:
Standards of Adequacy for Existing Ways
Business
Total No.of Dwelling Units 1-4' 5-10 11-49 5o+ District
Minimum ROW width (feet) 33 33 40 5o 6o
Surface type**** 3 inches bit.con. 3 inches bit.con. 4 inches bit. 4 inches bit. 4 inches bit.con.
con. con.
Surface width*(feet) *** i8 22 24 24
Minimum sight distance(feet) 25o 25o 25o 35o 25o
Maximum grade io% io% 8% 6% 6%
* Over the entire width of the way,including curbing and berms,if any.
** No further access;see definition of a"street,minor B."
*** For residential lots:.4 feet wide for two lots;i6 feet wide for three lots;and i8 feet wide for four lots.
**** With adequate road base iin the opinion of the Board's engineer.
•
C. Obligations.The Board may require,as a condition of its approval of a subdivision plan,that the applicant dedicate or acquire
and dedicate a strip of land for the purpose of widening accessways and/or intersections to land shown on a subdivision plan,
and providing access to that subdivision,to a width as required above,and that the applicant either make physical
improvements within such way or compensate the Town for the cost of such improvements in order to meet the standards
specified above.
D. Access roads.The Planning Board may require that ways in a proposed subdivision be connected to more than one access
road adjoining the subdivision,depending on the existing or proposed road network,the topography and the size of the
subdivision.
E.
http://ecode360.com/6565532 2/1/2016
Town of Barnstable, MA Requirements for Submission and Approval of Plans Page 2 of 3
Conditions. In any case in which the Board deems ways are not adequate,it may approve a subdivision plan with conditions
limiting the lots upon which buildings may be erected and the number of buildings that may be erected on particular lots
without further consent by the Board to the access provided and in each case such conditions shall be endorsed on the plan
to which they relate.
F. Access over road frontage.
(i) Access to a lot created by an approval not required plan or by a subdivision plan shall be from the frontage that meets
the legal requirements of the Zoning Ordinance,[']unless otherwise authorized by the Planning Board and so notated on
the plan.
[1] Editor's Note:See Ch.24o,Zoning.
(2) Where such frontage and access is located along a private way,the applicant shall submit evidence to the Board,
satisfactory to the Board,that the applicant has right of access over the private way.
§ 801-13 Sight distances at road intersections.
A. Sight distances at road intersections shall be measured at an eye height of 3.5 feet and an object height of 4.25 feet above the
pavement,from the center of the right lane,at the intersection with the pavement of the existing street.
B. Site distances shall be measured according to posted speeds as follows:
Posted Speed on Existing Road Required Site Distance
(mph) (feet)
3o 35o
35 415
40 475
45 540
5o 600
C. Where speeds are not posted,the following standards shall apply:
Design Speed Required Site Distance
Area Description (mph) (feet)
Thickly settled and/or buildings less than zoo feet apart 3o 35o
Outside a thickly settled or business district 40 475
On a highway outside a thickly settled or business district 5o 600
§ 801-14 Boundaries of wetlands.
The applicant shall flag the boundaries o-any wetlands within a subdivision.The flagged boundary shall be delineated on the plan.
§ 801-15 Tree map. Ill
In special instances where subdivision ccnstruction could result in excessive removal of large trees,the Planning Board may require
a tree map showing the size,species and location of all trees over six inches in diameter.
[1] Editor's Note:See Ch.221, Trees.
§ 801-16 Submission requirements for all plans.
A. Plans shall not be deemed to have been submitted until all the requirements of these regulations regarding form,content and
procedure have been met.
B. The applicant shall endeavor to ensure that a completed application is made at the time of submission,in order to allow the
staff and the public opportunity to review the application in its entirety,prior to the public hearing.The Planning Board may
deny incomplete applications and plans that do not meet the requirements of these regulations.
C. Where the Board finds at a duly noticed public meeting that the application is incomplete,the Board may deny approval of the
application as the first order of business at the public hearing,without a grant of leave to amend.
http://ecode360.com/6565532 2/1/2016
EXHIBIT 9
Bk 213045 -S11717
03--21-2014 ,) 02 0 330
MASSACHUSETTS STATE EXCISE TAX
BARNSTABLE COUNTY REGISTRY OF DEEDS
• Date: 03-21-2014 a 02:33am
Ct14: 897 Doi_.: 11717
Fee: $1,333.80 Cons: $390,000.00
BARNSTABLE COUNTY EXCISE TAX
BARNSTABLE COUNTY REGISTRY OF DEEDS
Date: 03-21-2014 a 02:33am
Ctlr: s97 Doc4: 11717
Fee: $1 r053.0') Cons: $390,000.Ori
QUITCLAIM DEED
We,John R. Dillon of 72 Allen Road,Ashby, MA 01431,Teresa A. Foley f/k/a Teresa •
A. Dillon of 711 Lumbert Mill Road, Centerville,MA 02632, Matthew B. Dillon of 232
Mockingbird Lane, Marstons Mills, MA 02648 and Amy E. Weymouth of 51 Geraldine
Road, Cotuit,MA 02635,the heirs of the Estate of Daniel F. Dillon,
for consideration paid of Three Hundred Ninety Thousand and 00/100 Dollars
(S390,000.00),
grant all our right,title and interest to Thomas P. Quinn,individually of 28 Quinn's
Way, Mashpee,MA 02649
U
L7
With QUITCLAIM COVENANTS
ai
crq
The land together with the buildings thereon in the Town of Barnstable, Barnstable
County, Commonwealth of Massachusetts,more particularly described as follows:
Being LOT 1 shown on a plan entitled"Subdivision Plan of Land in Barnstable,Mass.
4-4
for Daniel F. and Sharon P. Dillon,April 24, 1974, Scale: 1"=40', Edward E. Kelley,
Registered Land Surveyor, Cummaquid, Mass.", recorded in Barnstable Registry of
Deeds in Plan Book 290, Page 43.
rn
NThe above described premises are conveyed subject to and with the benefit of all rights,
rights of way, easements, appurtenances,reservations and restrictions of record.
o The undersigned Grantors hereby certify under the pains and penalties of perjury-that the
a-1 herein conveyed premises is not their principal residences and that there are no other
persons entitled to homestead rights in the conveyed premises.
For title, see Deed recorded in the Barnstable County Registry of Deeds in Book 7125,
Page 180.
Bk 28045 Pg308 #11717
Sr
Witness our hands and seals this ZJ day of March, 2014.
/
J
John R.Dil n �
°r0,1M4 '}'
Teresa A. Foley f/ a Te sa A. Dillon
44../.... ....) ,..e..,()..„....40:....._____,
Matthew B.Dillon
bucturn Vii —
E. ymouth
COMMONWEALTH OF MASSACHUSETTS
Barnstable County:
On this ;1 . day of March 2014, before me, the undersigned notary public,
personally appeared John R. Dillon, Teresa A. Foley f/k/a Teresa A. Dillon, Matthew B.
Dillon and Amy E. Weymouth and proved to me through satisfactory evidence of
identification, which were PAC.. {it ce ems to be the persons
whose names are signed on the preceding or attached document, and acknowledged to me
that they signed it voluntarily for its stated purpose and who swore or affirmed to me that
the contents of the document are truthful and accurate to the best of their knowledge and
belief.
C-7:�S
Notary Public My Commission Expires 9N2,1)
o• . o-
.':.',
BARNSTABLE REGISTRY OF DEEDS
EXHIBIT 10
MNB' MNB
MD
_ U' ,- -' "lee 2
` B
-rco' .... \ /
., \ \ \
\HT600 L S)5005yI \ \
q ` 0 Iyrv1 \\7m N)1)TSC - Ro \ I0. is ` Nc i
/1\
�.J\\- `�4 8 \\ \\ FOR RCGSiRT USE LOCUS MAP
'At rt TAT° \\ \\ SCAIE 1'.2008A
�) E2152 \ ASSESSORS MAP 257 PARCEL 40
y� \ BARNSTABLE PLANNING BOARD WEST BARNSTABLE FIRE DISTRICT
I�. SIN `\ APPROVAL VNO£R MT SUBO/N9LW
• ml 1 \\ CONTROL LAW/S NOT REORREO
I" WI" \DECW1 \`
1‘..„,
' DATE. ZONING SUMMARY
I 1. ,�gt ZONING DISTRICT:aF 0/STRICT
_rl 'Qoek aq 132. MIN.LOT SIZE 87.120 S.F.
/.� .LOT FRONTAGE 50'
I r be 302 MIN
FRONT501 SETBACK,^ �I$ O'c MIN.DOE SETBACK 15'
7/� MMI AO.BUIIDING EIGHT N.REAR SETBACK 120'
n 5'
i 1'�e y n NO OVERNNAR0W AS FO CGWLIANCE
3 IOW INC 16OINC ORDNANCE
S i.H REQUIREMENTS RAS BEN NAPE OR PRE IS LOCATED N11Nw RESOURCE
43
/ IENLMO BY NNE ABOVE CAOORSEMENF. PROTECTION OVERLAY DISTRICT
M10/ W
' /i/ OWNER OF RECORD
/ O / LOT I:
THOMAS DU
r7 %$ ® 2 wN
B o0INEIs WAY
ASH 0PEE,MA 2e49
ill L01 2:
DT 2, alNx
J xC 1NIT wnY
_!I LOT 1 MASHPEE,MA 0049 •
IS MAP 237 PCL 40
W' 60,451 SE.± JMAP OHN2J DILLON39R TR REFERENCES
pf.`.t+ 1.39 AC.t 89 CAPTAIN CROSBY ROAD DEED BOOK 20045 PAGE SO)
b�$ CENTERVILLE,MA 02632 DEED BOOK 28055 PAGE 305
, PLAN 8006 2B0 PAGE AS
m �� ,�>• - NOTE:
E
At \`r TINS PLAN HAS BEEN PREPARED FOR THE PURPOSE OF
4 9, INOCAIINO PROPOSED ACCESS TO LOT 1 AND LOT 2
c\ PURSUANT TO¢801-12F.130Di LOTS WILL SHARE A O
$ COMMONACCESS 0.AT ROUTE HE. NIM S T0 A
SI. CONSTRUCTEDE CTI
TO AT LEAST THE MINIMUM STANDARDS
'1��tt
(11 ME BY E BUILDING COMMISSION.ISSION PRIOR TO
OCCUPANCY OF ANY DWELLING ON LOT 2.
a
I T
24,
`— II v
�2 II
Ln N 1
I
Ui
w 0 NIA
g 8
'C: Q :IS
I,a I 4 A
w., I Pa '
0 III % t
MAP 236 PCL 6-1 I
CARL FRANCES I
WIRTANEN TR
POROUS �'
WEST BARNSTABLE, x
MA 02668 . -N O, , •
$ N'
s" r0
• I CERTIFY CORDA THAT THIS PLAN WAS DEED W
ACCORDANCE(F/E RESJ AR I.
REGULATIONS A(FEMME JANUARY 1,
'p)8.AND AS AWARDED JANUARY 7,
• 1 Zo r paB _
m 8. T-l'A 7-1p.2D\5 I G V'_
m ' DALE DARNEL A OJAU.P.LS
O
•
. a4
p'Tl8p55n
'CO'
S,Dx,yS" �? PLAN OF LAND
LOAS OF
#2159 ROUTE 6A
BARNSTABLE, MA
PREPA.FOR
THOMAS & DANUTE QUINN
$
LOT 2 V DATE: JULY 10,2015
MAP 236 PCL 14
s.r 1—.2D'
J, a Ip SO 30 •P x RI,
" iss,rape a iaeering,Inc.
• m V e.0 street surveyors w$ landl surveyors
aN(MA OA)
DCE #14-021 YAaua INPLNT 01615
O
EXHIBIT 11
BI-: 29132 Ps 301 �4-4OO5:
09--1 1-2015 a 03 : 1 1 p
trz.irt.N
�To
\,;,-..1,,ti,
....L.,..
0 41,*....,..%
t,c7-___70,,..
Town of Barnstable ta -
Growth Management Department
www.town.barnstable.ma.us//rowthmanaaement
Jo Anne Miller Buntich
Director
Memo
To: Ann Quirk,Town Clerk .
From: Jo Anne Miller Buntich,Growth Management Di ector
Date: August 5,2015
Re: Map 237 Parcel 040 Approval Not Required Plan si and for 2159 Rte. 6A,
Barnstable MA Thomas and Danute Quinn
On June 10, 2015 3:12 PM Down Cape Engineering, Inc., Daniel A. Ojala, P.L.S. filed an
Approval Not Required Plan application for 2159 Route 6A Barnstable, MA with the Town
Clerk on behalf of Thomas & Danute Quinn.
(11
iW On July 13, 2015 the Barnstable Planning Board reviewed an application for an Approval Not
D Required endorsement for proposed common access from Route 6A for Lot 1 and Lot 2 as •
o- shown on the plan entitled "Plan of Land of#2159 Route 6A Barnstable, MA prepared for
Thomas &Danute Quinn", dated July 10, 2015, prepared by Down Cape Engineering, Inc.,
Daniel A. Ojala, P.L.S.
o At the July 13 meeting,the Planning Board voted 3 to 1 to endorse this ANR plan. However, a
0 majority of the board,i.e. 4 members, must vote to constitute an official action. Therefore,
with only 3 positive votes,the Planning Board failed to act on this ANR application.
The statutory requirement that the Planning Board act within 21 days of filing expired on July
1, 2015 with no further action by the Board.
A TRUE COPY ATTEST
Ci&X-(14(-421d4414-.
Town Clerk • • %
BARNSTABLE,' ,i` ,g� •
200 Main Street,Hyannis,MA 02601(o)508-862-4786(f)508-862-4784 ,,'. t'• ,''' .`h ,•°•, `
367 Main Street,Hyannis,MA 02601(o)508-862-4678(f)508-862-4782 4 ,'° ' ` 0 •
e9
e
BARNSTABLE REGISTRY QF DEEDS
lohn F. Meade, Reglstex
EXHIBIT 12
Bk 29181 P9182 *48334
10--02--2015 & 03 :59P
Easement
I, Thomas P. Quinn, whose address is 28 Quinn's Way, Mashpee, Massachusetts 02649,
for consideration of One Dollar ($1.00) paid herewith grant to Danute Quinn whose
address is 28 Quinn's Way, Mashpee, Massachusetts 02649, the right to use the
"driveway easement," as shown on a plan entitled "Plan of Land of#2159 Route 6A,
Barnstable, MA Prepared for Thomas & Danute Quinn, July 10, 2015, Downcape
Engineering, Yarmouthport, Mass." and recorded with the Barnstable County Registry of
Deeds in Plan Book 660, Page 27. Said driveway easement shall be used in common
with the Grantor for all purposes for which driveway easements may now or hereafter are
customarily used in the Town of Barnstable to access Lot 2 shown on a plan entitled
"subdivision of Land in Barnstable, Mass. For Daniel F. and Sharon P. Dillon, April 24,
1974, Scale 1"=40", Edward E. Kelley, Registered Land Surveyor, Cummaquid, Mass."
Recorded in the Barnstable Registry of Deeds in Plan Book 290, Page 43 ("Lot 2"),
including specifically the right to install utilities within said easement.
Said easement is appurtenant to Lot 2.
d For Grantors' title see deed recorded at Barnstable County Registry of Deeds at Book
28045,Page 307.
--11�
T' n Witness my hand and seal this ZNiklay of October, 2015.
V /
omas P. Quinn
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On this oh/La day of Odb ,2015,before me,the undersigned notary
public, personally appeared Thomas P. Quinn,who is personally known to me or .raved
to me through satisfactory evidence of identification,which was ,Tho Loy:
to be the person whose name is signed on the foregoing instrument,and acknowledged to
me that she signed it voluntarily for its stated purpose.
..;0�' . Public Notary ��/�S/tea 1
;'4"Q fig:> - Publicfl My Commission Expires:
n ,�?, June 2s, 2021 S/6,‘0.7
t •firr" „,.r.
ia
" • 8AcNuSE ` BARNSTABLE REGISTRY OF DEEDS
John F. Meade, Register
EXHIBIT 13
PP$ �4 COMMONWEALTH OF MASSACHUSETTS
l
Land Court
Department of the Trial Court
08 MISC. 381675 (AHS)
PRISCILLA CROCKER DREIER, EXECUTRIX UNDER THE WILL OF CHARLES
F. CROCKER,JR.,DAVID W. CROCKER, and TAMSIN CROCKER PECKHAM,
Plaintiffs,
vs.
KATIE E. GRUNER,
Defendant.
DECISION
Plaintiff Priscilla Dreier, Executrix of the will of Charles F. Crocker,Jr.
("Crocker") filed her unverified complaint on June 20,2008,seeking,pursuant to G.L. c.
231A, a declaratory judgment that Defendant Katie E. Gruner("Gruner") has no rights in
a way known as Pilot's Way in West Barnstable, MA. Gruner filed her Answer on.
September 2,2008:.A case management conference was-held on October 8,2008.
Plaintiff filed her Motion for Summary Judgment on;February 10,2009,to.gether'with
supporting memorandum, Statement of Undisputed Material Facts, and.Appendix. On
July 7,2009, this court allowed anoint motion to stay proceedings pending adjudication
of a Petition to Partition in the Barnstable Family and Probate Court. On November 6,
2009,. this court allowed an assented to Motion to Substitute the Devisees under the will
of Crocker(Priscilla Crocker Dreier, David W. Crocker and Tainsin Crocker Peckham)
1
•
as Plaintiffs.1 On December 15,2010,Plaintiffs filed a revised memorandum in support
of summary judgment motion,together with Further Statement of Undisputed Material
Facts, and Affidavits of Peter S.Farber,Esq. ("Farber"),William H. Lewis,III("Lewis")
(nephew of Crocker and owner of abutting property), and.David W. Crocker(Plaintiff).
Gruner filed her Cross-motion for Summary Judgment on January 20,2011,together with
supporting memorandum, Statement of Additional Material Facts,Appendix, and
Affidavit of R.Andrew Prchlik("Prchlik") (domestic partner of Gruner). Gruner also
filed a Motion to Strike the Affidavit of Peter Farber and certain paragraphs of Plaintiffs'
Statement of Material Facts.Plaintiffs filed their Reply Brief on February 10,2011,.
together with Opposition.to Motions to Strike, and Affidavits of Ann W. Gordon,David
W. Crocker(second),Deacon J. Crocker,Eliza Z. Cox, Sara A.Turano-Flores, and Peter
S.Farber(second).A bearing on all motions was held on February 16, 2011, and the
matter was taken under advisement.
Summary judgment is appropriate where there are no genuine issues of material
fact and where the summary judgment record entitles the moving party to judgment as a
matter of law. See Cassesso v. Comm'r of Corr., 390 Mass.419,422 (1983); Cmty:Nat'l
Bank v.Dawes,.369 Mass. 550, 553 (1976);Mass.R. Civ. P. 56(c): I find the following
material facts are not in dispute:
1. Crocker owned property in Barnstable,Mass. (the"Crocker Homestead")
shown as Lots 1 and 2 on plan titled"Subdivision Plan of Land in Barnstable,Mass.for.
Charles F. Crocker,Jr." dated March 23, 1973 and prepared by Edward E. Kelley(the
1 The Petition to Partition is still ongoing in the Barnstable Family and Probate Court(BA 09E0036PP).
The parties agreed to proceed in this matter nevertheless,with the Devisees under the will of Crocker
substituted as Plaintiffs.
2
"1973 Plan").2 The Private Way shown on the 1973. Plan and included in the Crocker
Homestead is Pilot's Way.3
2. Helen B. Miller("Miller")owned property(the"Miller Lot") to the east of the
Crocker Homestead, Shown on plan titled "Plan of Land in Barnstable,Mass. to be
conveyed,to Helen B.Miller"dated May 1938 and prepared by Bearse and Kellogg(the
"1938 Plan"). The 1938 Plan shows Pilot's Way as"Private Way". An easterly portion of
the Miller Lot was partitioned from the rest of the Miller Lot(Parcel A as shown on the.
1938 Plan). By deed dated September 30, 1,948 (the"1948 Deed"),Charles Kimball
("Kimball") and his wife Florence Kimball,purchased the remairiing portion of the
Miller Lot(the"Kimball Lot")4 from Herbert A. Davidson("Davidson").5 Kimball later
3 Lot 1 is bounded on the north by the Penn Central Railroad,on the south by State Highway Route 6A
("Route 6A"),and on the east by Pilot's Way(shown as"Private Way"on the 1973 Plan).The property
line for the western boundary of Lot 1 runs 400.64 feet south of Penn Central.Railroad,then runs in an
easterly direction for 329.09 feet,and then runs in a southerly direction for 677.3 feet to the northern
boundary of Route 6A.Lot 2 lays to the east of Lot 1,on the easterly side of Pilot's Way,and is bounded
on the west by Pilot's.Way and on the north by.Penn Central.Railroad.The property line for the eastern and
southern boundary of Lot 2 begins at the southern edge of the Penn Central RaIlroad•208.S4 feet;east.of
Pilot's Way,runs in a southerly direction for 144.21 feet,then runs in a westerly direction for 181.2 feet;
and turns to run in a southwesterly direction..for 197.1.6 feet until it:intersects'with the eastern.boundary-of
Pilot's Way.
3 M discussed infra,Crocker purchased the fee in Pilot's Way in 1972.It is not clear from the 1973 Plan,
or subsequent subdivision plans,whether Pilot's Way is included in the individual:subdivided lots or not.
However,the 1973 Deed(defined below)defines the westerly boundary of Lot 2 as'"the:easterly line of a
private way as shown on:ale 1973 Plan],"and the deed to Lot 4(created after further subdivision of Lot 1
and defined below)describes the easterly boundary as"the westerly sideline of Pilot's Way.""It therefore
appears that the fee to Pilot's Way is included in the Crocker Homestead,but was not included in the deeds •
to individual lots as the Crocker Homestead was subdivided.
The 1948 Deed describes the Kimball Lot as"being bounded... as follows: Southerly by County.Road;
Westerly by land of William Crocker,deceased;Northerly by a ditch and land now or formerly of William
Crocker et ale,and Easterly by land of Elliott B.MacSwan et ux."With the Kimball Lot bounded on the
west.by the Crocker.Homestead,it appears that the Kimball Lot included Pilot's Way when conveyed to
Kimball and Florence Kimball in 1948.
s`The1948 Deed states that Davidson purchased the Miller Lot from Paul M.Swift,Executor of the Will of
Miller.
3
•
conveyed to Crocker the fee in Pilot's Way by deed datedFebruary 23, 1972. (the"1972
Deed"),without reserving any rights in said way.6
3. By deed dated June 1, 1973 (the"1973 Deed"), Crocker conveyed to Lewis
Lot 2 as shown on the 1973 Plan.?
4. In 1983,the Crocker Homestead was subdivided by plan titled"Plan of Land in
Barnstable, Mass. for Charles F.'Crocker,Jr."dated May 3:1, 1983 (the"1983 Plan").Lot
•
1 on the 1973 Plan was divided into lots 3,4 and 5.8
5. By deed dated January 24, 1984 (the"1984 Deed"),Crocker and his wife
• Catherine D. Crocker9 conveyed to Gordon Starr and Sheryl F. Greene-Starr Lot 4 as
shown on the 1983 Plan.1° .
6 By 1972,Florence.Kimball was deceased,leaving Kimball as tlae sole owner:of the Kimball.L.ot The
1972 Deed cites the 1948 Deed as proof of Kimball's title to Pilot's Way,and.states that Kimball
grants to [Crocker],of said Barnstable(West),with quitclaim:covenants a certain parcel
of land situated in Barnstable (West) ... bounded and described as follows:
SOUTHERLY by the state Highway, Route 6A; EASTERLY by the easterly line of a
private way as shown on plan recorded with Barnstable County Registry of Deeds,plan •
Book 57,Page 65; SOUTHERLY by a stone wall being the.southerly line of said way;
again SOUTHERLY by the extension of said stone wall to another stone wall as shown
on said plan all by other land of the grantor, EASTERLY'by a stone wall as shown on
said plan by other land of the grantor;NORTHERLY by land of New York,New-Haven
& Hartford Railroad .Company; WESTERLY by land of the grantee. Subject to .
easements of record so far as the same are of legal force and effect
7 The deed states in part"Together with a right of way over the private way as shown on said plan in
common with.others who are now or may hereafter.be entitled thereto."
8 Lot 5,the westernmost plot,is bounded on the.north by the southern bonndAry of the Mass Bay Transit
Authority(the"MBTA",previously shown as the Penn Central Railroad on the 1973 Plan)and on the east
by the western boundary of Lot 4,with a property line.running in a"southerly direction from the.MBTA for
400.64 feet to:form the western boundary and turning to run in an easterly direction for 329.09 feet to form
the southern.boundary.Lot 4 is bounded on the north by the META,on the west.by the eastern boundary of
Lot 5,on the south by the northern boundary of Lot 3,and on the east by the.eastern boundary of Pilot's
Way.Lot. is bounded on the north by the southern boundary of Lot 4,on the east by the eastern boundary
of Pilot's Way,on the south by Route 6A and on the west by a property line that begins at Route 6A.and
runs in a northerly direction for 677.30 feet.The 1983 Plan also shows a"Traveled Way"extending in a
westerly direction across Lot 4 and then in a northwesterly direction across Lot 5 until it intersects with the
MBTA.
•
•
4
6. By deed dated October 24, 1985 (the"1985 Deed"), Lewis conveyed to
•Thomas M. Shields ("Shields") and.B.W.C. Ellis("Ellis") a lot to the north of the
Crocker Homestead (the"Shields and Ellis Lot").11
7.. By three written instruments dated October 23,.1.985 (the"1985 Easements"),
each.of Marjorie C.Handy,12 Gordon M. Starr and Sheryl F..Greene-Starr, and Crocker
conveyed to Shields and Ellis an easement for a right of way over their respective
properties, allowing access to the Shields and Ellis Lot from Route 6A.13
•
8. The easement instrument from Crocker to Shields and Ellis (the"Shields-Ellis
Easement") conveys.a perpetual right of way over Lot 5 on the 1983 Plan14 and an
'It is unclear from:tbe record when Catherine D.Crocker gained an interest in the Crocker•Homestead. •
However,no party•disputes her ownership interest in the Crocker Homestead. •
10 The 1984 Deed states in part:"The fee in the ways shown on said plan are hereby reserved to grantor.
• There is granted as appurtenant to the above Lot 4 a right of way in common with others who are.now or
may hereafter be entitled thereto over the private way as shown on said plan,to and from.the:granted
premises and the State Highway,and together with the right to maintain utilities in said•way."
11.The Shields and Ellis Lot was conveyed to Lewis by Bessie B.Crocker by deed dated October 29,1965.
This lot was subsequentlydefined by a perimeter plan titled`Plan of.Land in.Bainstable,Mass.prepared
for B.W.C.•Ellis,"dated Cctober 17, 1985 and prepared by Down Cape Engineering.
12 Marjorie.Handy owns land to the north of the Crocker Homestead and directly adjacent to the west of the
Shields and.Ellis Lot:It is:necessary to pass through.Handy's propertyto gain access to the Shields and
Ellis•Lot from Route 6A,as discussed in FN 13,infra.
13 The only way to access the Shields and Ellis Lot from.Route 6A(the nearest public highway),is to travel
northerly on Pilot's Way, :urn left onto an 8-foot wide unimproved.road that proceeds through Lots 4 and
• .5,cross the railroad where the 8,foot wide path intersects the,railroad`(this is the only crossing in the area).
into theproperty of Marjorie Handy,then travel easterly along the railroad until,entering the Shields and
Ellis Lot.This way is shown as an unlabelled path marked by dashed lines on the 1973 Plan and as the.
"Traveled Way"bathe 1983 Plan.
14 The right of way over Lot 5 pertains to the unlabelled path and the."Traveled Way"shown on the 1973
Plan and the 1983 Plan,respectively,which was further defined as the"16'Wide Access Easement Over an
Existing 8'Traveled Way'as shown on:planttitled"Easement Plan of Land in(West)Barnstable,Mass.
over Lots 4 and.5 Prepared For B.W.C.Ellis,"dated October 18, 1985 and prepared by Down Cape
Engineering.
5
•
•
easement over Pilot's Way. With respect to the easement over Pilot's Way,the
instrument states:
Also granting a perpetual easement to the said B.W.C. Ellis and Thomas
M. Shields, and their heirs, successors and assigns, over Pilot's Way, as
shown on [the 1983 Plan], to be used in common with all others entitled
thereto for all purposes for which ways are used in the Town: of
Barnstable,including the right to grant like rights to others.
9. By deed dated December 3.0, 1986, Shields and Ellis conveyed to Alan P.
Taber,Jr. ("Taber")the Shields and.Ellis Lot,"together with rights and reservations of
record."This deed also states: "Reserving to the Grantors the right to use all easements of
record relating to the premises herein conveyed,including the right to grant like rights to
others."
10. In 1988,the Crocker Homestead was subdivided again by plan titled"Plan of
Land in Barnstable,Mass. for Charles F. Crocker,Jr." dated July 20, 1988 (the"1988
Plan"). Lot 3 in the 1983 Plan was divided into three lots,numbered 6, 7 and 8.15
11.By deed dated September 13,2002(the"2002 Deed"),Peter Toennies
purchased the Kimball Lot from Virginia B.Randolph.16'17 Peter Toennies subsequently
•had the Kimball Lot defined by a plan titled"Plan of Land prepared for Peter Toennies
15 Lots 6,7,and 8 are all bounded on the east by the western boundary of Pilot's Way and on the west by a
property line that begins at the southern boundary of Lot 4,294.14 feet west of the-eastern boundary of
Pilot's Way;.and runs in a southerly direction until it intersects with Route 6A Lot 8 is the northernmost lot
and is bounded on the north by the southern boundary of Lot 4 and on the south by the northern boundary
of Lot 7.Lot 7 lies directly south of Lot 8,and is bounded on.the.south by the northern bo>;ndaty of Lot 6.
Lot 6 lies directly south of Lot7,and is bounded on the south by Route 6A.
16.The record does not include a deed of the Kimball Lot to Virginia B.Randolph.However,no parties
contest that Peter Toennies purchased.the Kimball Lot in 2002.
17 The 2002 Deed describes the Kimball Lot as being"bounded and described as follows:SOUTHERLY by
the County'Road;WESTERLY by land of William.Crocker,deceased,NORTHERLY by a ditch and land
now formerly of William Crocker et als;and EASTERLY by land of Elliott B.MacSwn,et uc."
6
located in the Town of Barnstable,Massachusetts" dated.June 26, 2003 and prepared by
Coastal Engineering Co. (the"2003 Plan"). The 2003 Plan shows the westerly boundary
of the Kimball Lot as Pilot's Way.
12. By deed dated February 3,2005 (the"2005 Deed"),Peter Toennies conveyed
to himself and Richard Schiffman, as Trustees of the Pilot's Way Trust, a portion•of the
Kimball Lot(the"Toennies Lot").18
13. In May,2005,the Trustees of Pilot's Way Trust subdivided the Toennies Lot
into two lots by plan titled"Plan of Land in West Barnstable,MA prepared for Peter H.
Toennies and Richard F. Schiffmann", dated May 5,2005 and prepared by Down Cape
Engineering Co. (the"2005 Plan"). The 2005 Plan divides the Toennies Lot into
numbered Lots 1 (the"Southern Lot") and 2 (the"Northern Lot"). • •
14. By deed dated August 8, 2006, Richard F.•Schif&nan, as sole surviving
Trustee of Pilot's Way Trust, conveyed to Amanda N. Toennies ("A. Toennies"), Jane E.
Sacco ("Sacco"), and Craig P. Toennies ("C.Toennies"),the Northern Lot on the 2005
Plan.
15.A written instrument dated November 1.4,2006, signed by Shields,Ellis,A.
Toennies, Sacco, and C.Toennies (the"Toennies-Sacco Easement"), states that Shields
and Ellis convey to A. Toennies, Sacco, and C. Toennies
'8 The 2005 Deed describes the Toennies Lot as"[b]eginning at the.Southeasterly corner of the parcel at an
iron marker/stake,thence Westerly by land of Peter H.Toennies to land of William Crocker,deceased,
thence Northerly 382.16 feet by land of William Crocker,deceased to land.of Anne Lewis thence.running
Easterly 181.20 feet by land of Anne Lewis thence Northerly 144.17 feet by said land of Anne Lewis to the
right of way in the New York,New Haven and Hartford Railroad Company,thence Easterly along.said
• right of way 38.5 feet to land of Elliott MacSwan;et ux,thence running Southerly feet by said land of
Elliott MacSwan et ux to point of origin."
a perpetual right of way, in common with the Grantor and others legally
entitled thereto; in, over, and under a certain private way known as Pilots
Way ... appurtenant to Grantees' property ... for all purposes for which
ways are used in the Town of Barnstable, including the right to construct,
install, and maintain all utilities therein.
16. In response to a.submitted plan to develop the Northern Lot, on or around
November 14, 2007,Prchlilrreceived a letter(the"2007 Letter")from Attorney Patrick
M. Butler of the firm Nutter,McClennen&Fish,who represented the Estate of Crocker.
The 2007 Letter stated,in part,that based upon a collective review,including a review of
"the easement that purports to provide rights to [the Northern Lot]to utilize Pilot's Way,"
conducted by a Land Court title examiner,"we have significant questions regarding,the
ability of[the Northern Lot]to utilize Pilot's Way."
17. By deed dated March 3,2008,A. Toennies, Sacco and C. Toennies conveyed.
to Gruner the Northern Lot," t o ether with the right to use Pilots sic Wayin
G] � [sic] ...
common with all others legally entitled thereto in and over the same,for all purposes for
which ways are commonly used in the Town of Barnstable,including the installation and
maintenance of utilities."
18. On March 13,2008,Prchlik obtained a building permit on behalf of Gruner
from the Barnstable Building Department to construct a single family dwelling on the
•
Northern Lot."
19.Plaintiffs:eceived title to Lot on the 1983 Plan.and.Lots 6,7, and 8 on the
1988 Plan upon Crocker's death on June 26, 2006.
19 Prchlik does not have En interest in the Northern Lot,but intended to live with Gruner in a house that
Prchlik would build on the Northern Lot.
8
**************************
Gruner's Motion to Strike must first be addressed. Gruner filed a Motion to Strike
the Affidavit of Peter S.Farber and a Motion to Strike Paragraphs 81-83 and 90-91 of
Plaintiffs' Statement of Facts, With respect to Farber's affidavit, Gruner contends that
Farber's testimony is not based on personal knowledge,lacks evidentiary support,and
draws conclusions of law.Further, Groner states that,as Plaintiffs' counsel,it is
. inappropriate for Farber to testify as an expert witness on his clients'behalf and for
portions of Plaintiffs Statement of Facts to rely solely upon Farber's testimony:Mass. R.
Civ. P. 56(e) states that affidavits in support of or opposition to a motion for summary
judgment"be made on personal knowledge, ...set forth such facts as would be admissible
in evidence, and ...show affirmatively that the affiant is competent to testify to the
matters stated therein ... [and that] sworn or certified copies of all papers or parts thereof
referred to in an affidavit shall be attached thereto or served therewith." Farber's affidavit
largely details the history of the chain of title of parcels of land; Gruner does not object to
the title documents themselves,but to Farber's interpretation of them.This court will
• allow Farber's affidavit to remain on the record, although it is worth noting that this court
lends no weight to any conclusions that Farber's testimony draws regarding the meaning
or content of any titre documents. Nevertheless, Gruner's Motion to Strike Farber's
Affidavit is DENIED. •
Gruner also moves to strike;Paragraphs 81-83 and 90-91 of Plaintiffs' Statement •
of Facts, which discuss Gruner's acquisition of title insurance for the right, title, and
interest in the Northern Lot,including the right to travel over Pilot's Way. Gruner argues
9
that since this case binges upon the interpretation of the 1985 Shields-Ellis Easement,
evidence that.Gruner or Gruner's predecessor-in-title obtained title insurance in 2006 and
2008 is completely irrelevant,and can only possibly serve a prejudicial purpose.
Plaintiffs counter-argue that evidence of Gruner's title insurance is directly relevant as a
rebuttal to Gruner's estoppel defense;namely,Plaintiffs assert that Gruner relied upon
this title insurance policy,which included use of Pilot's Way,rather than representations
made by Plaintiffs,in deciding to purchase and build upon the Northern Lot and therefore
evidence regarding Gruner's procurement of title insurance is relevant. The inclusion of
information about Gruner's title insurance is not irrelevant to the count relative to the
estoppel argument and therefore shall not be stricken.20 Accordingly, Gruner's Motion to
Strike Paragraphs 81-83 and 90-91 of Plaintiffs' Statement of Facts is DENIED.
• With regards to summary judgment,Plaintiffs claim that Graver ha-G no right to
use Pilot's.Way in any manner because Gruver does not possess a valid easement for use
of Pilot's Way.They argue that because Kimball deeded the fee to Pilot's Way to Crocker
in 1972,. the land to the east of Pilot's Way retained no rights in Pilot's Way; as a result
Gruner or Gruner's predecessors in title would have had to secure a valid easement from
the owner of Pilot's Way to have obtained rights in Pilot's Way. Plaintiffs argue that the
Shields-Ellis Easement was appurtenant to the Shields and Ellis Lot and, as such,rights
in the Shields-Ellis Easement passed to Taber as owner of the Shields and Ellis Lot; as a
result,the Toennies-Sacco Easement is invalid,because Shields and Ellis did not retain
30 It is worth noting,however,that the acquisition of title insurance is highly commonplace and does not
sway the opinion of this court.
10
any rights to Pilot's Way and therefore could not convey any such rights to anyone else.21
Additionally, Plaintiff3 contend that, even if Shields and Ellis had been legally able to sell
their easement in.Pilot's Way, the Toennies-Sacco Easement is invalid because it
constitutes.an overburdening of'the Shields-Ellis Easement by benefiting land other than
the Shields and Ellis Lot,which was the dominant estate of the Shields-Ellis Easement.
Gruner argues that the Shields-Ellis Easement was an easement in gross,the
rights of which Shields and Ellis explicitly retained in the conveyance of the Shields and
Ellis Lot to Taber. Therefore, Gruner claims, Shields and.Ellis validly conveyed a right of
way in Pilot's Way to A. Toennies, Sacco and C:Toennies in the Toennies-Sacco
Easement,which was in turn conveyed to Gruner. Gruner argues that,because the
Shields-Ellis Easement was an easement in gross which included a right to convey said
easement to others, Shields and Ellis were entitled to convey the right to use Pilot's Way,
which they had received as a result of the Shields-Ellis Easement,regardless of what
parcel of land was being benefited; as such, Gruner states the Toennies-Sacco Easement
did not overburden the Shields-Ellis Easement.Additionally, Gruner contends that.
Plaintiffs are estopped from seeking relief with respect to Gruner's use of Pilot's Way
because Plaintiffs delayed objecting to Gruner's claim of right of way until after Gruner
had closed on the Northern Lot and undertaken a construction loan. Gruner states that
Plaintiffs waited to as3ert their rights in Pilot's Way"in hopes that[Gruner] would
contribute monetarily to the improvement of Pilot's Way:"
The Nature of the Shields-Ellis Easement.
21 lf.the Toennies-Saco.Easement is invalid,then A.Toennies,Sacco,and C.Toennies would not have had
any legal authority to grant Griner a right of way in Pilots Way.
11
When interpreting deeds and written conveyances of easements,it is clear that the
court is to consider both the language of the written instrument and the relevant attendant
circumstances that existed at the time of the instrument's creation. Patterson v. Paul,448
Mass. 658,665 (2007) (citing Sheftel v. Lebel,44 Mass.App. Ct. 175, 179 (1998);
Mugar v. Massachusetts Bay Transp.Auth., 28 Mass.App. Ct.443,444 (1990)). In order
to analyze the appropriate documents and circumstances,this court must first determine
whether, as Plaintiffs contend, all three of the 1985 Easements as well as the deed for the
Shields and Ellis.Lot should be considered a single transaction. Multiple instruments
signed contemporaneously between the same parties regarding the same land or object
are generally considered the same transaction in order to ascertain the intent of the
parties.Haugh v. Simms, 64 Mass.App. Ct. 781,.787(2005);See also.,Dana S. Courtney
Co.V. Quinnehtuk.Co.,303 Mass.48,50 (1939);Sibley v.Holden.,27 Mass.249,250
(1830).All of the 1985 Easements were signed within the same two day period,making
them contemporaneous.22 Plaintiffs contend that all of these documents are related, as
they deal with Shields' and Ellis'ownership of the Shields and Ellis Lot,which inherently
involves Shields'and Ellis'ability to access the Shields and Ellis Lot from a public way.
This court agrees, and will consider the 1985. Deed to the Shields and Ellis Lot as well as
the three 1985.Easements in order to discern the nature of the Shields-Ellis Easement.
Turning now to whether the Shields-Ellis Easement is appurtenant or in gross,this.
court acknowledges that there is a"general presumption favoring appurtenant easements
as distinguished from personal.easements (easements in gross)." Schwartzmann v.
21 The three easement instruments were all signed on the same day(October 23,1985)and the.1985 Deed
to the Shields and Ellis Lot was signed the following day(October 24,1985).
12
Schoening,41 Mass. App. Ct. 220,223 (1996). "An easement is not presumed to be
personal unless it cannot be construed fairly as appurtenant to some estate."Willets v.
Langhaar, 212 Mass. 573, 575 (1912) (citing Dennis v. Wilson; 107 Mass. 591 (1871)).
"An easement is appurtenant to land when the easement is created to benefit and does
benefit the possessor of the land in his use of the land."Schwartzmann, 4.1 Mass. App.
Ct. at 223 (citing Restatement of Property § 453 (1994)).
Examining the easement instruments,the 1985 Deed to the Shields and Ellis Lot
and the plans to which these documents refer,it is clear that the Shields-Ellis Easement,
in conjunction with the other 1985 Easements,was created in order to benefit the Shields
and Ellis Lot by allowing access from Route 6A. Indeed, Gruner does not deny the fact
that the 1985 Easements,including the Shields-Ellis Easement,provided the only access
to the Shields and Ellis Lot from.Route 6A, the nearest public way.Rather, Griner argues
that the absence of any explicit language of appurtenance or a dominant estate in the
Shields-Ellis Easement leads to the inference that it was intended to be an easement in
gross.This argument must fail.Although clear language stating that an easement is to be
appurtenant would be preferable for the purposes of interpretation,the fact that an
easement instrument does not contain the word"appurtenant"or"dominant estate"does
not mean that the easement is an easement in gross, especially in light of the attendant
circumstances and the presumption favoring appurtenant easements.
Groner states that the omission of any language of appurtenance in the Shields-
Ellis Easement is of particular significance because in the past Crocker had conveyed
easement rights over Pilot's Way which explicitly stated that they were appurtenant in
13
_ 11
nature.23 However,the fact that Crocker used the word"appurtenant"in some previous
easement instruments does not mean that a failure to include such language in the
Shields-Ellis Easement renders the Shields-Ellis Easement an easement in gross. Indeed,
the fact that Crocker has a history of granting appurtenant easements to abutting lots for
the sole purpose of allowing access to and from Route 6A supports the contention that
Crocker intended to convey an appurtenant easement to Shields and Ellis, as Crocker was
once again conveying an easement over Pilot's Way to allow an abutting property access
to Route 6A. This is especially true since none of the property surrounding the Crocker
Homestead had any rights in Pilot's Way.24 All future owners of the Shields and Ellis Lot.
would need to be able to use Pilot's Way in order to gain access to their land via Route
6A;logic therefore dictates that Crocker would convey an appurtenant easement to
Shields and Ellis,which would run with the Shields and Ellis Lot,rather than an
easement in gross that would remain with Shields and Ellis and force Crocker to re-
establish an easement for the Shields and Ellis Lot with every'subsequent owner.
Gruner also contends that the Shields-Ellis Easement has language of an easement
in gross because it explicitly includes"the right to grant like rights to others."Gruner
• states that this language would become superfluous if the Shields-Ellis Easement were
appurtenant,since"in a conveyance of real estate all ...appurtenances belonging to the
granted estate shall be included in the conveyance."G.L. c. 183 § 15.Typically,
29.When conveying Lot 4 to Gordon Starr and Sheryl F.Greene-Starr,the 1984 Deed clearly stated that
Crocker conveyed an easement for the use of Pilot's Way that is to be appurtenant to Lot 4.See FN 10
supra.However,the deed conveying Lot 2 to Lewis conveys a"right of way over the private way"but does
not explicitly state that such right is appurtenant to Lot 2.
24 Kimball conveyed the fee to Pilot's Way to Crocker in 1972,and the subsequent 2002 Deed and 2005
Deed describe the land to the east of Pilot's Way as being bounded on the west by"land of.William
Crocker,deceased,"further indicating that Crocker owned the fee interest in Pilot's Way.
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interpretations of a deed or easement that render portions of the instrument superfluous
are unfavorable.25 However,it is not unusual for a document to contain a statement that is
legally unnecessary. Such statements should not dictate the interpretation of a document;
rather,the court must look to the intent behind the use of such terms, and whether their
inclusion was meant to determine the nature of the agreement. In the present case,
although the Shields-Ellis Easement did not need to state that the easement was
conveyable in order for it to be appurtenant,such a statement does not mean that the
Shields-Ellis Easement is an easement in gross. Indeed, specifically including a right to
convey like rights in an easement instrument is more indicative of an appurtenant
easement, as it is consistent with the intent to convey a right of way for the benefit of a
particular parcel of land for a particular purpose,which can be conveyed and enjoyed by
all future owners of that parcel. See Denardo v. Stanton, 74 Mass.App. Ct. 358, fa 10
(2009) ("An easement in gross generally does not benefit and run with a particular parcel
of land."). Contrastingly, including a right to convey with an easement in gross could
translate into enormous rights for the dominant estate holder. Interpreting the phrase"the
right to grant like rights to others,"taken to its extreme without limitation,would allow
the owner of the easement in gross to grant such rights to hundreds of other people with
no connection to either the dominant estate or the servient estate. Such an interpretation
would be ludicrous.
In sum, the language of the Shields-Ellis Easement does not make it clear whether
the easement is appurtenant or in gross. Accordingly,the interpretation of the Shields-
Ellis Easement hinges upon the intended use of the Shields-Ellis Easement.The Shields-
See Sullivan v.Dart, 17 LCR 543,548(2009);Bessette v.Bessette, 13 LCR 247,250(2005).
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Ellis Easement undeniably benefits the Shields and Ellis Lot by providing an access route
to,a public way. Since the Shields-Ellis Easement was"created to benefit and [did]
benefit the possessor of the[Shields and Ellis Lot]in his use of the land",I find that the
Shields-Ellis Easement was appurtenant to the Shields and Ellis Lot. Schwartimann,41
Mass. App. Ct. at_223(citing Restatement of Property §453 (1994).
' Transfer of the Easement Rights.
Since appurtenant easements run with the land, Shields and Ellis conveyed the
Shields-Ellis Easement to Taber along with the Shields and Ellis Lot in 1986. Although
Shields and Ellis attempted to retain the rights of the Shields-Ellis Easement in their deed
to Taber,this portion of the deed is invalid because"appurtenances belonging to the
granted estate shall be included in the conveyance."G.L. c. 183 § 15.The record does not
indicate that either Shields or Ellis retained any other property in the vicinity of Pilot's
Way which would justify any easement in gross analysis. Accordingly,the Shields-Ellis
Easement remained with the Shields and Ellis Lot, and Shields and Ellis retained no
rights in Pilot's Way. As such, Shields and Ellis were not legally capable of conveying to
A.Toennies, Sacco,and C.Toennies an easement to Pilot's Way.26 Gruner,in turn,never
received an easement granting a right of way to Pilot's Way,because A.Toennies, Sacco
and C.Toennies were unable to convey one. I therefore find that Gruner has no rights in
Pilot's Way.
Estoppel.
26 Even if Shields and Ellis had been able to convey easement rights separately from the Shields and Rills
Lot,Shields and Ellis could not convey an easement that did not benefit the Shields and F11is Lot,and as
such the Toennies-Saco Easement would constitute an overburdening of the Shields-Ellis Easement
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•
"Circumstances that may give rise to an estoppel are: (1) a representation intended
to induce reliance on the part of a person to whom the representation is made; (2)an act
or omission by that person in reasonable reliance on the representation; and (3) detriment
as a consequence of the act or omission."Bongaards v. Millen,440 Mass. 10, 15 (2003).
Gruner claims that Plaintiffs are estopped from asserting rights to Pilot's Way because
Plaintiffs waited to take action until Gruner had purchased the Northern Lot,received
approval for construction and undertaken loans for the development of the property.
However,the record reflects that Plaintiffs represented that Plaintiffs did not believe that
•
Gruner held any rights to Pilot's Way upon learning of Gruner's desire to build on the
Northern Lot. In particular,the 2007 Letter stated that there were"significant questions
regarding the ability of[the Northern Lot] to utilize Pilot's Way."Notably, Gruner did not
purchase the Northern Lot until March 3,2008 and Prchlik did not receive a building
permit on behalf of Gruner until March 13,2008. Clearly,then, Gruner had ample notice
• of the fact that Plaintiffs did not believe that the Northern Lot carried any rights with
respect in Pilot's Way.Based on these facts,I find that Plaintiffs are not estopped from
asserting their rights to Pilot's Way against Gruner.
Therefore, Plaintiffs' Motion for Summary Judgment is ALLOWED and Gruner's
Cross-Motion for Summary Judgment is DENIED. •
Judgment to enter accordingly.
Alexander H. Sands, III.
Justice
•
Dated: August 15, 2011
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