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Home My WebLink About2012-06-05 Planning Board Supplemental Materials (69) URBELIS &FIELDSTEEL,LLP 155 FEDERAL STREET BOSTON, MASSACHUSETTS 02110-1727 Telephone 978-475-4552 THOMAS J.URBELIS Telephone 617-338-2200 e-mail tjtia tif-law.com May 29, 2012 Telecopier 617-338-0122 Judy Tymon, Town Planner Town of North Andover 1600 Osgood Street North Andover, NIA 01845 Re: 498 Chickering Road Dear Judy: You informed us that the Planning Board has an application for a Site Plan Review Special Permit. The applicant is proposing to use an abutting paper street (Franklin Street) for stormwater structures— grass swale,catch basin, forebay—to fulfill the requirements within Site Plan Review Zoning for mitigating stormwater. The applicant's attorney wrote the attached letter stating that he is informed that a portion of Franklin Street is unimproved and as such is a paper street and that as an abutter, the applicant has certain legal rights with regard to the street. The Board would like our opinion on this matter. A. Derelict Tee Statute The letter referenced G.L. ch. 183, §58 which states: "§58. Real estate abutting a way,watercourse,wall, fence, or other monument Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or n\mp51\nork\roandovekwresp4ymon Itr-<hicAerinu rd.kms URBELIS&FIELDSTEEL,LLP May 29, 2012 Page 2 (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line." I agree that as a general proposition, the owner of property abutting a private way also owns to the center of the way, but as you can see, the statute provides limitations and conditions on that proposition. I am not aware at this time of any condition which contradicts the applicant's claim to owning to the center of the private way. B. General Laws Chanter 187, Section 5 The letter referenced G. L. ch. 187, §5 which states: "5. Installation of public utility services for abutting owners on private ways authorized The owner or owners of real estate abutting on a private way who have by deed existing rights of ingress and egress upon such way or other private ways shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private ways pipes, conduits, manholes and other appurtenances necessary for the transmission of gas electricity, telephone, water and sewer service, provided such facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways; and,provided further, that such placement, installation, or construction is done in accordance with regulations, plans and practices of the utility company which is to provide the gas, electricity, or telephone service, and the appropriate cities, towns, districts, or water companies which provide the water service. Said agencies, which provide such service, shall comply with the rules and regulations of the division of water supply and the department of public utilities or the department of telecommunications and cable. Any such owner or owners may grant permission to a public utility company or water company to enter upon said way or other private ways to place, install, repair, or relocate pipes, conduits, manholes, and other necessary appurtenances for the transmission of gas, electricity, telephone or water service in accordance with such company or companies regulations, practices and tariffs filed with the department of public utilities or the department of telecommunications and cable or the division of water supply; provided, however, that no charge or added assessment shall be levied by such public utility company or companies against any such owner or owners not connected to such service or, services. Neither the person installing or repairing public utility facilities, nor such facilities, nor the gas, electricity, telephone or water service l URBELIS &FIELDSTEEL, LLP May 29, 2012 Page 3 transmitted shall be deemed to constitute a trespass upon said way or ways." (emphasis supplied) I. As you can see, the statute provides for rights "necessary for the transmission of gas, electricity, telephone, water and sewer service." The title of this statute references "public utility services." Attorney Levy's letter states that the statute provides rights "necessary for utilities." However, there is no mention in the letter of any authority under the statute for drainage mitigation or stormwater structures such as a grass swale, catch basin and forebay. The legislative history of the statute would suggest that stormwater mitigation structures are not within its scope. As noted by the Appeals Court in Robinson v. Board of Health of Chatham, 58 Mass. App. Ct. 394, 398, n. 9 (2003): "The original legislation (St. 1973, c. 918) created an implied easement in the private way only for gas lines. It was amended two years later to add electrical and telephone service (St. 1975, c. 610), in 1980 to add water service (St. 1980, c. 251), and in 1988 to add sewer service (St. 1988, c. 334). The legislation created an implied easement in the abutting owner for such purposes because at common law the grant of a right of way without more created only a right of ingress and egress and did not include the right to lay pipes or erect structures in, upon or under the way. See Nantucket Conservation Found Inc. v. Russell Mgmt. Inc., 380 Mass. 212, 216 (1980). While the letter mentions certain rights under the statute, it is significant that the letter does not opine that the grass swale, catch basin and forebay as proposed are allowed under the statute. No caselaw was cited in the letter for the proposition that such structures for stormwater mitigation fall within the category of"utilities"such as gas, electricity, telephone, water and sewer service which are the specific subject matters of the statute. In the absence of such caselaw or other authority, in my opinion, the Board may rely upon the specific words in the statute, the statute's legislative history, the Board's expertise, and common sense if the Board URBELIS &FIELDSTEEL,LLP May 29, 2012 Page 4 were to consider such structures beyond the scope of the "utilities" as described in, and authorized by, the statute. 2. The letter also generically references "limitations provided for in the statute." Two limitations are: "provided such facilities do not unreasonably obstruct said private way or other private ways, and provided that such use of the private.way or other private ways does not interfere with or be inconsistent with the existing use by others of such way or other private ways" (emphasis supplied) Again, the letter does not say that the proposed structures would not violate those limitations. Other abutters would also have rights in the private way in question, and you may want to hear from them regarding these structures. Abutters would have rights along the entire length of the private way. Casella v. Sneierson, 325 Mass. 85, 89 (1949). The holders of such a right are entitled to enjoy that right"unimpaired and undiminished by any wrongful acts of another." Frawley v. Forrest, 310 Mass. 446, 451 (1941). As the Land Court stated in Post v. McHugh, 16 LCR 208, 217 (2008): " `The right of anyone entitled to use a private way to make reasonable repairs and improvements is well established in cases where the way is already in use.' Guillet v. Livernois, 297 Mass. 337, 340 (1937). The right to make reasonable repairs and improvements to a private way `exists even more clearly where without improvement the way is impassable and useless.' Id. `The owner of a right of way has the right to enter upon the servient estate on which no actual way has been prepared and constructed and to make such changes therein as will reasonably adapt it to the proposes of a way, having due regard to the rights of others who may have an interest in the way.' Walker v. E. William and Merrill C. Nutting, Inc., 302 Mass. 535, 543 (1939). `Clearing limbs from a roadway, smoothing the surface of a way, placing gravel on a road, or even paving a road have been condoned as reasonable repairs if necessary to enjoyment of the casement.' Glenn v. Poole, 12 Mass. App. Ct. 292, 296 (1981)." You have also informed us that the Town plows the snow on a certain part of Franklin Street. The work proposed here is for stormwater mitigation and not for the purpose to make URBELIS&FIELDSTEEL,LLP May 29, 2012 Page 5 Franklin Street passable. In my opinion, it would be up to the Board to consider all the evidence and testimony to determine whether the structures as proposed would violate (1) the foregoing limitations in the statute and/or (2) the rights of other abutters to Franklin Street. As always, please call if you have any questions. Very truly yours, t ltrbelis Thomas TJU:kmp cc: Board of Selectmen Planning Board Andrew Maylor Bruce Thibodeau Eckert Seamans Cherin&Mellott,LLC IN, 617 342 6800 Two International Place FAX 617 342 6899 166 Floor mmeckertscamans.com _ Boston,MA 02110 ATTORNEYS AT LAW Robert N.Levy 617.342.6832 rlevy(n)eckertseanra�u.com May 21,2012 Louis P. Minicucci,Jr. Park Street Redevelopment, LLC 231 Sutton Street, Suite 113 North Andover, MA 021845 Re: 498 Chickering Road,North Andover, MA Dear Lou: You have requested that I review the legal rights you have in and to Franklin Street adjacent to your property located at 498 Chickering Road,North Andover, MA. Based upon your investigation, you have confirmed that the North Andover's Town Clerk's Office has verified that Franklin Street is a private way and has not been accepted by the Town of North Andover. 1 am further informed that a portion of Franklin Street is unimproved and as such is a paper street. Pursuant to Massachusetts General Law, Chapter 183, Section 58—the so-called "Derelict Fee Statute"—as a general proposition, the owner of property abutting a private way also owns to the center of the way. Furthermore,pursuant to Massachusetts General Laws, Chapter 187, Section 5,the owners of real estate abutting a private way who have by deed existing rights of ingress and egress upon such way, shall have the right by implication, to place, install or construct in, on, along, under and upon said private way,pipes, conduits,manholes and other appurtenances necessary for utilities, subject to limitations provided for in the statute. I hope this explanation is helpful in connection with your use of the property. If you have any questions,please do not hesitate to contact me. Very truly yours, Robert W. Levy RWL/var (K0471956.1)