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HomeMy WebLinkAbout2001-04-09 Legal Correspondence DEF SUB KeceivLd ec-06-00 11 :28 DEC- - WED 10, 18 AM from ee i G page 2 uar��rduw �44 i uv rAA 44 u UVV P.,... _. ....._.. .FAX M 00 F+ 02/03 TOWN OF NORTH AN'DOVER OFFICE ar TOWN CLERK 120 MAIN STRUT NORTH ANDOVER.MASSACHUSETTS 01$45 JoycL A, Uratlshaw 100, Twt+:pt ono(478)6".9101 , rAX(979)M-9556 � I h , I i 'Phis is to cent* that thti following vote was talon at the Adjourned Ariiamal T W:l 14�geting far the'flwi�o£North Patdavettlrta x9� AIMCLE 50, voted unanimously to accept as a pudic way that portion of Booth Street as looated between Wesley and Wallace$treats, and shown on a plan entitled"Dofmitive ;stir 4ivinlon Plan, beita�,,, a subdivision of Lot 292 Amn on Laud Court Plan 3263F lonated in North Andover, MA, Applicant-, S&S 13uildcrs, Cl ristaar►sen & Sergi, Professional Engineerg � 1,00 Surveyors and xeoorded with the Land Court as PIM M30 all Aq fader set out in the lgcal deSctlptlort filed horewitti as Exhibit A and flied with the North Andover Board of Sciectinep and the Corranunity Development Departntent, Exhibit A 11a accept as a public way that portion of Booth Strctt as fa loeated betwoon Wesley and Wallaoo Struts and shown on a, plan cutitled "Dofinitive Subdivision Plan, being a Subdlvisfrin of Lot i 192 shown On Land Cowl Plan 3263F located In North Andover,MA", Applloant 13ultders, Chi giausexa & Semi.,professiornAl 1 laginoe>,-s Land surveyors and recorded with t nd Court I I I lan #32630 all as farther set out in the legal demiptiort filed herewith, as illt ► and file+ with the North Aiutover Board.of gelectmen anti the Con=unity Development," Kpa tment, The,i land togell)or witli llaa improvements tberedsi, Shown as Booth Street, ss laid out or a plan ent4lyd "Definitive Subdivielon Plan being a Subdivision of.Lot 292 shown on Land Court flan #26P locatod in floe North Andover, Massachusetts, APPlicant: US Builders, Xno, dated: San 1, 1993, revised May 28, 1993, Cbristiansen & 5ergi, Profasslanal Engineers andbeu� fvrr ounded as follows. Na�'th4rly, 13y tlto i 11tersectlgn with Wesley Street os shown on said plan, Ea tecly; by the*outage of lots 293, 294,and 295,as shown on sa#d plan; Sn tlzerly: by the biterseution'with Wallace Stroot as shown on saldpiW. and W�stcrly; by land,now yr formerly of Balsamo and now of ftuerly of Bottigi, Received Dec-06-oo 11 :28 ' DEC-08-�2000 WED 10� 18 AN from ee to page 3 FAQ{ K 00 P� 03/03 xir�u ran Wj uua r Pa���Aaat11 Strut.�ccat�#arioe� ' lvlttir79rig and luteklding to convey all faQ fatal-6st a$underlies Booth Strcct, as shown on said glen together with ally 00'er Cce 1"West with Wallace and Wasloy Stroors, as May be necessmy to � effect tlio ttttlizatx�}x� ofaotla Stt+cet, rps� , � fi5t� unezl #ho xih wayys shown �ztot �lxuc en�r � � � a :t�;}io" ght to bass and r>~p��so�er_,tlzat po�Ci�ri a�`L�t,�9� ��itKsl�nwtai�=�r�gtit;��Pway:�ase�daat,. And that Ow Tows turtlivr vvtcd to authorized the Board of Soloobaaan to acqu by property rights nteessaiy to use said street for all purposet for winch publlo ways are used in the ('own of'North Axadover. i r { I 4 LAW OFFICE OF 1 MARK B. JOHNSON 12 Chestnut Sheet Andover,Massachusetts 01810-3706 i (978)475-4488 Telecopier: (978)475-6703 Parale&ds MARK B. JOHNSON (MA,NH,DC) KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) JEAN A.SHEEHAN DONALD F, BORENSTEIN (MA,ME) LIANNE CRISTALDI ELIZABETH J. BARTON (MA,DC) i April 3, 2001 Via Facsimile: (978) 688-9542 Planning Board CIO Heidi Griffin, Town Planner Town of North Andover 27 Charles Street North Andover,MA 01845 Re: Applicant: Stephen& Cheryl Juba Property: 0 Booth Street, Map 98D, Parcel 14 & 15 Dear Members: As you know, I represent the Applicants, Stephen and Cheryl Juba in connection with the above-referenced Application. In light of Mr. Ken Ahern's letter of March 25, 2001, this letter will provide further information concerning Mr. and Mrs. Juba's legal right to make improvements within the currently unconstructed "paper" street known as Wallace Street, As you are aware through my prior submittals in this proceeding, particularly my letter of April 26, 2000, Mr. and Mrs. Juba are the owners of six lots that were originally shown on Land Court Plan No. 3263B, dated August 20, 1913. Mr, and Mrs. Juba seek to combine those six parcels into one single-family building lot and to construct a small portion of Wallace Street to provide frontage and access to that lot. Wallace Street was also originally laid out and shown on Land Court Plan No. 3263B. "A . . . fundamental principal is that when an owner of a tract records a subdivision plan showing several lots and new ways, each lot shown thereon thereby acquires by implication a right of way over all of the ways on the plan." Massachusetts F:Wew-Docs\Johnson-BiII1WALLACEtGdffin-LIr 4-3-01,doc Heidi Griffin, Town Plan ier April 3, 2001 Page 2 i i Conveyancers_Handbook with Forms, 3rd Edition, Section 5:12,02 citing Perodeaux v. O'Cotuior, 336 Mass. 472 (1957); Scagel v. Jones, 355 Mass. 208 (1969); Labounty v. Vickers, 352 Mass. 337 (1967); E. Whitehead, Inc, v. Gallo, 357 Mass. 215 (1970); and Wellwood v. Havra M.A.S. Cemetery Corp., 254 Mass. 350 (1926). Thus,where Mr. and Mrs. Juba own lots shown on the 1913 subdivision plan, they also own, as a right appurtenant to those lots, a right of way over all of the streets and ways shown on that plan, including Wallace Street. That right of way runs with the land and is conveyed to all future owners of the property, whether or not that right is specifically referenced in the Deeds conveying the property. See Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675 (1965). It is another long standing principal that "when an easement or other property right is created, every right necessary for its enjoyment is included by implication." Guillet v. Livernois, 297 Mass. 337, 340 (1937) ue� oti Sullivan v. Donohoe, 287 Mass. 265, 267 and White v. Eagle and Phoenix Hotel Company 68 NH 38, 43. Where a private way has already been constructed and is in use, "the Fight of anyone entitled to use a private way to make reasonable repairs and improvements is well established." Guillet v. Livernois, 297 Mass. at 340, citations omitted. "The right exists even more clearly where without improvement the way is impassible and useless." Id, numerous citations omitted. Thus, where Mr. and Mrs. Juba have a right of way over Wallace Street, they also have the right to improve that way and mare it available for their use. In the case of Guillet v. Livernois, 297 Mass. 337 (1937)Mr. Livernois owned land on a private way, Lincoln Street, that had not been constructed the entire way to his property. He sought to construct Lincoln Street and make is passable fiom his lot to a nearby constructed street for its entire width. Prior to his improvement of Lincoln Street, other abutters had extended their lawns within the area of Lincoln Street, planted trees, had constructed retaining walls, and one had constructed a driveway. Mr. Livernois removed the retaining walls, the lawn and the trees and re-graded the area of Lincoln Street to conform in height to the existing driveway. One of the several results was that one of the neighboring lots was left approximately five feet above the graded level of the street without any retaining wall and, drainage on another lot was negatively affected. However, the Court held that"the Defendant had to establish some grade, for there was no existing or natural grade at which a useable way could be built . . . It does not appear that the grade adopted was unreasonable." Id. at 341, Thus, where Wallace Street as it currently exists is unpassable, Mr, and Mrs. Juba are entitled to construct and grade Wallace Street in any way that it is not unreasonable. Based on the Court's holding in Guillet v, Livernois, it would appear that even an abrupt five foot change in grade, without the installation of a retaining wall, would be reasonable. This appears to be particularly applicable in this proceeding where, as in Guillet v. Livernois, the grade chosen for the roadway improvements was based on an existing driveway. F:1New-Docs\Johnso«-Ai311wALLACE1Gri ff n-Ltr 4-3-0 t.doc I Heidi Griffin, Town Planner April 3, 2001 Page 3 i I trust the above-referenced case law adequately confirms Mr. and Mrs. Juba's right to make the improvements to Wallace Street currently shown on their proposed definitive subdivision plan,which had been amended at the Board's request. If I can provide any further information or documentation to the Board, I would be happy to do SO. Very truly yours, i LAW OFFICE OF MARK B. JOHNSON ✓12 �� Fes.. Donald F. Borenstein <. . DFB—klb PC: Mr. and Mrs. Stephen Juba William Johnson Phil Christiansen Ken Ahern FANew-©ocsUohnson-Bil WA LLACMi-i ff in-Ur 4-3-0 Ldoc LAW OFFICE OF MARK B. JOHNSON 12 Chestnut Street Andover,Massachusetts 01810-3706 {978}475-4488 RECEIVED Telecopier: (978)475-6703 q OCT 0 4 2001 Pa€afe axis MARK B. JOHNSON (MA,NH,DC) NORTH I A{ ��C)VI KATHRYN M.MORIN LINDA A. O'CONNELL (MA,NH,RI) IN.ANNiNC-1 PFAPA€iMICNT JEAN A,SHEEHAN DONALD F. BORENSTBIN (MA,ME) LIANNE CRISTALDI ELIZABETH J. BARTON (MA,DC) October 4, 2001 Via Facsimile: (978) 688-9542 Planning Board CIO Heidi Griffin, Town Planner Town of North Andover 27 Charles Street North Andover, MA 01845 Re: Property: 0 Booth Street Map 98D Parcel 14 & 15 Dear Ms. Griffin: 1 have been requested to summarize the rights of the owner of the above-referenced property to construct a driveway within the un-constructed portion of a private way, Wallace Street, which abuts said property. I believe the following sets forth the applicable legal standards. As you are aware through my prior submittals in this proceeding, particularly my letter of April 26, 2000, the subject property consists of six lots that were originally shown on Land Court Plan No. 3263B, dated August 20, 1913. The applicant obtained the Board's approval to combine those six parcels into one single-family building lot and to construct a small portion of Wallace Street to provide frontage and access to that lot. Wallace Street was also originally laid out and shown on Land Court Plan No. 3263B, The current property owner seeks to access the home to be constructed on the property by way of a driveway that originates at the end of the constructed portion of Wallace Street, continues within the Wallace Street layout for a certain distance, and terminates at the Eastern end of the home. This configuration appears to maximize the separation of the structure and pavement from the wetlands located on the Western portion of the property. The specific question arises as to the property owner's right to construct and maintain the driveway within the limits of Wallace Street. First, it should be recognized that the property owner has a right of way or easement over Wallace Street. "A . . . fundamental principal is that when an owner of a tract records a subdivision plan showing several lots and new ways, each lot shown thereon thereby acquires by implication a right of way over all of the ways on the plan." Massachusetts Conveyancers R%ew-DocsUohnson,BiIRWALLACBIGOMn-Ltr 10-04-01.doo Heidi Griffin, Town Planner October 4, 2001 Page 2 Handbook with Forms, 3rd Edition, Section 5:12.02 citing Perodeaux v. O'Connor, 336 Mass. 472 (1957); Scagel v. Jones, 355 Mass. 208 (1969); Labounty v. Vickers, 352 Mass. 337 (1967); E, Whitehead, Inc. v. Gallo, 357 Mass. 215 (1970); and Wellwood v. Havra M.A.S. Cemetery Corp., 254 Mass. 350 (1926). Thus, where the property owner owns lots shown on the 1913 subdivision plan, the owner also acquires, as a right appurtenant to those lots, a right of way over all of the streets and ways shown on that plan, including Wallace Street. That right of way runs with the land and is conveyed to all future owners of the property, whether or not that right is specifically referenced in the Deeds conveying the property. See Murphy v. IVlart Realty Brockton, Inc., 348 Mass. 675 (1965). It is another long standing principal that"when an easement or other property right is created, every right necessary for its enjoyment is included by implication." Guillet v. Livernois, 297 Mass. 337, 340 (1937) quoting Sullivan v. Donohoe, 287 Mass, 265, 267 and White v. Eagle and Phoenix Hotel Com an , 68 NH 38, 43. Where a private way has already been constructed and is in use, "the right of anyone entitled to use a private way to make reasonable repairs and improvements is well established." Guillet v. Livernois, 297 Mass. at 340, citations omitted. "The right exists even more clearly where without improvement the way is impassible and useless." Id., numerous citations omitted. Thus,where the property owner has a right of way over Wallace Street, the property owner also has the right to improve that way and make it available for use, i.e.; to pave/construct a driveway, etc. To the extent that other owners of lots with rights of way in Wallace Street seek to extend and further construct Wallace Street at some time in the future, those owners would be free to incorporate or pave over the proposed driveway. In addition, those lot owners would be entitled to travel on that portion of the proposed driveway within the limits of Wallace Street. However, those rights do not negate the right of the owner of the subject property to construct a portion of Wallace Street in a limited fashion, to serve the subject property as a driveway. See Guillet v. Livernois, 297 Mass, 337, 340 (1937). I trust the above-referenced case law adequately confirms the property owner's right to construct the driveway as proposed. If I can provide any further information or documentation to the Board, I would be happy to do so. Very truly yours, LAW OFFICE OF MARK B. JOHNSON Donald F. Borenstein DFB—klb PC: William Johnson Phillip Christiansen, P.E. FMew-DoesVottnson,Bill1WALLAMOriffin-Ur 10-04-01.doc