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8584_FORM A NORTH ST. EXT. VIP HOMES �5s q fog M A v �P }domes -.. ,.. .. �?"`.:. :.: ,,, ,.... .... �"f '..",B}°•....,. .. ...... <,i-,.1. ,v' :5.. :w:?'.:4.P`F'LY.+ m4". Tay ._4:M. .Fn'.:,I N/F N/F N/F N/F. N/F c . CHARLES CALABRESE STEPHEN SUSSMAN STEVEN SHECKLER GARY MANTOLESKY Mark McCormick Q B. 11675 P. 139 B. 4869 P. 27 B. 4991 P. 323 B. 10821 P. 555 I B. 5230 P. 52 _ o S81°3 '00"E j 550.00' rr � i I Michael Oleksak N F Leonard Matz �� 1 B.. 10828 P. 527 - = / i I I Ir B, 164/8 P. 428 I Ln E N q `r l 0 00 s I o rn y oCN ¢ VIP Homes & Associates, LLC C H U R C !� T R E E T o w B ''6050 P. 452 3.86 Acres D cer Book of Plans 347 Page 113 I N / F C i (D N/F i Wesley Schuff, Jr. � GLORIA M. MANTANEZ ! I B. 71 36 P. 305 B. 11675 P. 139 a x a� N75'29'26"yy Parcel B 135.02' •_ 5329 s.f. To become 581'30' 0"E 109.88' N71°Sg 2g„ 25.00' ! W part of 1?C). 00' other land ~ of VIP Homes 110.Op1 & Associates, LLC f 330.()0, w 11 )'00� f o > N / F Q z JAMES J. GRAHAM N / F 1` o B. 12628 P, 451 Li BRAD G. COLL'NS 20 0 0 o ro o Sri / I B. 15122 P. 242 / w 1 n o co O :'� L N F N F N / F C 0 �1 1 0 a Vladislav Vorobef I C0 MARIO TROLIO o Parcel A o B. 12252 P. 357 °° 1 y w1 00 N B. 16317 P. 86 ( 00 o Reside��e i # ;022 ` co T } i N C 10.00, �1 S R T r- N7' '29"y�, 91 9ta1 LC °3g -`- - _ 110. ��' 7LDa Y 25 38 AGSO � fN7732g„wf V L : , . . . GRAPHIC SCALE This plan prepared in accordance �, OF W 40 0 20 40 so 160 with the rules and regulations of �s�9� the Registry of Deeds: o RONAL© tiG This plan does not constitute a � H11. m subdivision therefore approval Date. �I �210� (1�. under^ the Subdivision Control ( IN FEET ) IN . 311$o Law is not required, 1 inch = 40 ft. (9�Q�Sl1R`l` � i Date' mm PLAN OF PROPERTY N DRAWN BY: i A 7aWari� Pianrinq_ Boa-d _ AGAWAM , MA DRAWING # OF VP Homes & Associates, LLC 29 Avalon Place Feeding Hills, MA ANDERS❑N ASSOCIATES 375 WALNUT STREET EXT: RD. BOX 382 AGAWAM, MA 01001 Land Surveyor Land PlanningConsultant NO. DATE DESCRIPTION BY SCALE: 1 " = 40' DATE:Nov., 2008 n F..:, rt;. ... z ....-:...,. - ;" e:.:.-e.A._ `:i.:-±^,,.+ k . :.:l;d•.:.w.:ckY»'6+i^n'Y;��P . s 'L 2^`3sT..e SYf:. ';yfn.. »,.......r,.fY .'.'a✓.r ?'b):,i Y. t+-^-l.[. ., .,. P fF ARC^ "1 ».M .r.�' .�..k....... .A• S,yn....Ss"K'- .. .... .. .. ,.. ....... .. .... ... ":�, N4H.,:;RSL..:.. ,.9�' ... ..... .,.. .... -.- ... §... ....-. -41 v N/F N/F N/F N/F N/E C: . CHARLES CALABRESE STEPHEN SUSSMAN STEVEN SHECKLER GARY MANTOLESKY Mork McCormick v Q B. 11675 P. 139 B. 4869 P. 27 B. 4991 P. 323 B. 5230 P. 52 B. 10821 P. 555 c S81°3 'QQ"E v 550.00' cr x Michael Oleksak B. 10828 P. 527 a��i N / F Leonard Matz B. 16478 P. 428 N Q3 x v o co ¢ a rn O NPO (p N VIP Homes & Associates, LLC C H U R C H I L L S T R E E T O B. 16050 P.. 452 cn 3.86 Acres Book of Plans 347 Page 113 v N / F Q) N/F Wesley Schuff, Jr. ¢ GLORIA M. MANTANEZ B. 7136 P. 305 (D B. 11675 P. 139 0 x _v N75729'26"W Parcel B 135.02' 5329 s.f. S81'30' 0"E 7Q9.88' N77° To become 10 39 29"W part of 25.00, 710.00, other land of VIP Homes 110.00' & Associates, 61-C v 33p QQ, v > N / F 770 00, p Q JAMES J. GRAHAM �� 1 z B. 12628 P. 451 N / F w c BRAD G. COLLINS 20. o 0 m E B. 15122 P. 242 N / F Ld N / F N/F MARiO ThOLIO o Parcel A �� 0 0 o `y Vlodislav Vorobel B. 12252 P. 357 !� w w a N B. 16317 P. 86 U Net � O I 4 1022 ce ` 00 Q T 4 1 a ' 1 S T 710.0() �� ratflr rr7. I E T N71-39'2g"W 9193, 3r' ! - � V S O � 1 N7.7.3 �2g;,W . 'VIF VE D DEC 0n0 4. PLM16-1;i. '. "".�' L-i'Ah _ GRAPHIC SCALE k �z This plan prepared in accordanceao o zo ao so ,so with the rules and regulations of �� RONALD cy� the Registry of heeds, R. This plan does not constitute a HUOT subdivision therefore approval Date: _ 1111010$ Edo, 31785 under the Subdivision Control ( ) a IN FEET Law is not :re aired, 1 inch = 40 it. ���'� p Date. .y DRAWN BY: Agawam Planning Board REJECTED By PLAN OF PROPERTY IN-:wprn I A G A WA M , MA DRAWING # PLAMV Wuq .1 041 e-� OF Date,/dz/r�-/a.a VIP Homes & Associates, LLC 29 Avalon Place Feeding Hills, MA ANDERSON ASSOCIATES 375 WALNUT STREET EXT, P.0, BOX 382 AGAWAM, MA 01001 Land Surveyor Land Nanning Consultant No. DATE DESCRIPTION BY SCALE: 1 " = 40' DATE:N ov., 2008 MEMO TO: Attorney Christopher Johnson, Town Solicitor FROM: Planning Board SUBJECT: Form A -North Street Ext. -VIP Homes DATE: December 2, 2008 Attached please find a Form A that was submitted by VIP Homes for property on North Street Ext. Parcel B as shown on the plan is an existing right of way. Please provide this office with an opinion on whether the paper street can be used for this purpose. Thank you. F Town of. Agawam 36 Main Strut Agawam, Massachusetts 01001-1837 Tel. 413-786-0400 Fax 413-786-9927 December 19, 2008 VIP Homes & Associates -� 29 Avalon Place c Feeding Hills, MA 01030 To Whom It May Concern: At its duly called meeting held on December 18, 2008, the Agawam Planning Board rejected the approval not required (ANR)plan entitled "Plan of Property in Agawam, MA, VIP Homes & Associates, LLU, prepared by Anderson Associates and dated Nov., 2008 as this plan does not meet the requirements of an ANR and constitutes a subdivision. If you have any questions, please contact this office at 786-0400, extension 283. Sincerely, zl) >-9 Travis Ward, Chairman AGAWAM PLANNING BOARD TW/DSD:prk cc: Town Clerk File AUU-21-2006 22: 19 TOWN OF HUHWHII /b, y; 2Zl H. A"k Tbw-n .of Agawam - IMF 36►Main Street Apwam,Massachusetts 0100l-1.837 TeL 41.3-786-0400 Fax 413-796-9927 FORM A Application for Endmement ofPlan-Not Believed to Require Rproval w FILE ONE COMPLETED FORM WITH THE PLANNING BOARD AND ONE COPY UVI LL= THE TOWN CLERK IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 1141 Agawam, MA NC V, -,Z E� 20 Chi TO THE PLANNING BOARD: crr The undersigned, believing that the accompanying plan of his property in the Town of Agawam does not constitute a subdivision within the meaning of the Subdivision Control Law. herewith submits said plan for a determination and endorsement that Planning Board approval under the Subdivision Control Law is not required. 1. Name of Applicant Address2`j V AL&,, L'- 6 2. Name of Surveyor �o�Czco Address �4 A csoj 4 _ 7H _ n 3. Deed of Property Recorded in l f 4M9,6_6d Book f 6 2-17 Page z 4. Location of Property- llve-rti S i p F- Q F /'Ja kTti 5'7, �7-x.T, _-_FAJ i 0 P 5. Describe the proposal in this submission: (F-In -M XI3►/nl6 LllN1) ,J y ATTACHMENTS - Two originals and three copies of plan by certified land surveyor. Filing Fee - $35.00. Signature of Owner &� I/�r Address /Oo `( ,Jor4_ sd_ �� t', TOTAL P.02 THE MALSCE SURVEYOR:FALL 2W7 Don't Like an Easement Across Your Land?Just Move It! The MALSCE Surveyor A Discussion of M.P.M. Builders, LLC v. Dwyer (442 Mass. 87,2004) P6Mmd q�y by the�A.�o. By A.Richard Yannozai,PLS of Land Swveyor,wd Civil them,be. How many times has a project been allowing easements to be moved Smd atkle.ubmimem m: redesigned,scaled back,or even scrapped appeared in the American Law Edltar,Tle MALSCE altogether because the surveying research Institute's Restatement (Third) of Tb E0' C '' revealed an old easement across the Property (Servitudes) in 2000. The Boston,MA 02108-3616 property,long forgotten but still in force? American Law Institute is, for lack of a ram: eerL-9 How many landowners have ended up better term, a legal "think tank" where ibr as bfa�, Admmwebb paying a king's ransom to an easement law and policy across the nation are Pbone:617/305-4i05 F®c:61 7/227-67 83 holder to release their rights in an constantly being reviewed, summarized ram; easement that they did not even know and compiled for the use of the legal that they had. Or what about a servient profession. At regular intervals they PKcsident estate holder who wishes to move an publish books called "restatements" K=c*1 AmImm sett: easement, actively being used, just which are treatises on the"state of the YIoePmiden enough to allow them to utilize their land law" in specific areas. In their sett 1z t:mmaan in a more beneficial way? Moves of even comparative discussions they often �� '°°°°a negligible amounts have always been provide the "roadmap" for courts M-y EH-sr< taboo because of the mountains of case wishing to modify the law in their rat P : law that made it clear that an easement, jurisdiction that includes "model" text, nevmw Hampbicy especially once fixed on the ground,could and the scholarly precedent and thought EzBeudw Dhmomw., not be moved without express permission to back up such changes.In this case the Abbie Good of the dominant estate holder. And of SJC actually wrote in their introductory Enufl:sgoodO7n@eVme .wg course everyone has heard the sacred paragraph in their decision: Chapter Presidents mantra: "Mere non-user of an easement " held that.Restatement(Third)of Property I�mdm�P�" does not constitute abandonment" Land (servitudes)section giving owners of servient 7`"' °"P` Surveyors have found these situations to be particularly problematic because once estate right to make reasonable changes in DcnaldT.p location and dimensions of easement would ZMH- uncovered, an inevitable education be adopted as Iaw of Massachusetts..." .CbaP process begins as landowners, clients, markwolem attorneys, and other parties come to As stated above however,the SJC didn't CWR terms with the situation, Inordinate just allow for random easement Robwtrurcid amounts of time can be spent trying to movement by the servient estate holder ram: explain a situation that on its face defies but rather put in place a judicial cAneta logic and is so seemingly inflexible, procedure and rules that they believed :rtzeerLo= Well the inflexibility (at least of this would address the specific types MAT SCE Surveys 1a not�and situations which the Land Surveyi of 'ice MALSCE atUm may be reprinte d wt&due credit. Massachu aspect) u setts. In 2004 the Massachu-easement law has changed in Profession so often sees.The SJC stated The wd �of� r� that in order for a servient estate owner InIle MALSCE Sur+ffim a=not oaumte setts Supreme Judicial Court (SJC) gFoWorendarmmentof the produacrswvkm to move an easement unilaterally a offcmd tmffin.The NWuadwuMAuodd1=of ruled in M.P.M. Builders v. Dwyer that, declaration from the court approving 1-ate-da�& I— no in fact, a servient estate holder can the move would be required. r�"ty 1w&a gents made or unilaterally move an easement that is mpmod is thu man' across their property.The courts by no in absence of agreement concerning the fir; means threw the flood gates open to the relocation of an easement, servient estate �R-Sleet cam movement of easements at will.They set owner should seek a declaration from court some veryspecific rules on how to o that proposed changes meet the criteria for Membership Information: s P g AdmmWebb,617/305-4t05 about moving an easement, but before unilateral relocation." Emal malace@mgffiea,.org those are discussed it should be noted that reform on this issue has been in the Rival mvfft works for a number of years.The idea of continued page 5 THE MALSCE SURVEYOR:FALL 2W Easement estate holder can use their land over holder, now, at least, another process continued from page 2 which another has an easement for all exists to accomplish an easement purposes which are not inconsistent relocation that is not quite so one sided. The SJC went on to identify three with the easement holder's rights. The Clearly, this law is not a"quick fix"to a criteria that must be met before the court felt that by setting forth the above conflict between an easement holder court could approve the move of an criteria and the requirement of judicial and the owner of the underlying fee and easement, 1)The move can not signifi- review that a balance could be struck direct negotiation would be the most cantly lessen the utility of the easement; between the rights of easement holders expedient way to move an easement.To 2) it can not increase the burdens on the to use their easements unimpeded for utilize the courts to move the easement owner of the easement and 3)it can not their intended purpose and the rights of as contemplated in this case, the "frustrate the purpose"the easement was servient estate holders to use the servient estate holder may end up created for.Though each of these criteria underlying land for reasonable purposes spending a lot of money and time to allows for significant subjectivity in their and who were increasingly being "held accomplish such an easement relocation application to specific fact patterns,many hostage"in their legitimate development (the rules for relocation set down in the of the more absurd (and professionally pursuits by easement holders. case clearly make the owner of the frustrating) situations where easement relocation was not an option before are Before this case, a land owner could not servient estate responsible for all oasts even contemplate the movement of a associated with any relocation, too), now able to be entertained. driveway a few inches to accommodate a however having such an option available, The argument that M.P.M. Builders, setback for a pool, the moving of an even as a last resort, will go a long way LLC made for the change of the law was ancient paper"right of way to the driving in leveling the playing field in the that the unbending rule that an lanes of a proposed shopping center, or negotiation of the reasonable relocation easement once fixed on the ground the reconfiguring of a drainage easement of an easement and giving the owner of could not be moved was in direct to facilitate a deck or an addition without the servient estate an opportunity to conflict with the idea that a servient complete approval of the easement have their interests weighed. Berntsen. A world of survey markers and supplies at your fingertips. To help you ma ke you r ma rk on the world. tR" i Gk Bermtsen is there for you every step of the way. •Most orders ship within 48 hours •24/7 online ordering •State-of-the-art website •Live online support Berntsen Fast&easy ordering with personalized customer service •New! Surveyor resources including FREE training videos Helping You Make Your Mark on the World. •The highest quality survey markers and supplies,always www.berntsen.coml877.686.8561 Truly committed to helping you make your mark on the world. Westlaw Result Page 1 of 2 .ti NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; S]CR p rter@sjc.state.ma.us James SEARS vs. BUILDING INSPECTOR OF MARSHFIELD & another. [FN1] No. 07-P-1935. February 6, 2009. Zoning, Board of appeals: decision; By-law; Lot size. James F. Creed, Jr., for the plaintiff. Robert L. Marzelli for the defendants. RESCRIPT. We consider here whether certain zoning laws, taken together with G.L. c. 183, § 58, allow a property owner to include land extending to the middle of an adjoining street when calculating lot area for the purposes of obtaining the status of a buildable lot, referred to in the by-law as a "residential lot of record," or grandfather status. We hold that it does not. The plaintiff, James Sears, owns a 4,800 square foot parcel of land in Marshfield. The Marshfield building inspector denied his application for residential lot of record status under § 9.03 of the town's zoning by-law. The Marshfield zoning board of appeals (ZBA) upheld the building inspector's determination, and the Plymouth Superior Court affirmed the ZBA's decision, finding that the plaintiffs parcel did not meet the 5,000 square foot minimum lot area requirment of § 9.03 or § 6 of the Zoning Act, G.L. c. 40A. On appeal, the plaintiff argues that the Zoning Act and town by-law, taken together with the so- called derelict fee statute, G.L. c. 183, § 58, entitle his parcel to residential lot of record status. The plaintiff premises his argument to overcome the G.L. c. 40A, § 6, minimum lot area requirement on G.L. c. 183, § 58, as amended through St.1990, c. 378, § 1, which provides: "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," with certain exceptions not here relevant. The plaintiff argues that the ZBA should allow him to include the square footage of his fee interest in the area that extends to the middle of the private way abutting his parcel to the southeast. If it did, the lot area of the plaintiffs parcel would total 5,700 square feet. We cannot accept the_ plaintiffs construction of the derelict fee statute. First, applying G.L. c. 183, § 58,to zoning laws is inconsistent with the text Hof that statute. Section 58 enumerates a variety of fee'inte.rests--ways, watercourses, and monuments-upon which no;construction can occur. Plainly, the fee interest to which § 58 entitles a grantee does not include the right to build. Therefore, tt makes little sense to read § 58:as a grant-of additional lot area for the purposes of meeting minimum lot size requirements in zoning laws. Second, the plaintiffs construction does not square well with the purpose of the statute. The Legislature enacted G.L. c. 183, § 58, "to clarify ownership and ease the difficulty of identifying the owners of the small strips of land that lay beneath highways, streams, wails, and other similar boundaries" and to "quiet title to sundry narrow strips of land that formed the boundaries of other http://weblinks.westlaw.com/find/default.wl?bhcp=l&bQlocfrid=True&DB=MA%2DORS... 2/6/2009 Westlaw Result Page 2 of 2 r . r tracts." Rowley v. Mass. Elec. Co., 438 Mass. 798, 799, 803 (2003). The statute, designed to deal with the enforcement of property rights and the problem of unowned lots, has never applied, nor did the Legislature intend it to apply, to add lot area for zoning purposes. Third, adopting the plaintiff's construction would lead to a dysfunctional result. For example, an owner of a lot bounded on three sides by a highway could have a buildable lot, yet have only a small corridor of land actually usable for building. Allowing this would undermine a basic purpose of the zoning scheme. Keeping in mind this reading of § 58, we defer to the ZBA's reasonable interpretation of its by-law, Livoll v. Zoning Bd. of Appeals of Southborough, 42 Mass.App.Ct. 921, 923 (1997), which defines "[1]at" as "[aln area or parcel of land in common ownership, designated by its owner or owners as a separate lot on a plan filed with the administrator of this Bylaw and recorded in the Plymouth County Registry of Deeds." TH rded piaiv-ttiat inclfjde� the,lot at issue in this case,does not indicate-that floe p}aintiff s paFcef rneiddes a€%y part of the adjoin ing.way. In sum, we hold that the derelict fee statute, G.L. c. 183, § 58, does not require a town to include the fee interests covered by the statute when calculating lot areas required by its zoning by-law or G.L. c. 40A, § 6, and that the Marshfield zoning board of appeals acted reasonably when it construed the Marshfield zoning by-law to exclude those fee interests when calculating the size of the plaintiffs lot. Judgment affirmed. FN1. Zoning board of appeals of Marshfield. http://weblinks.westlaw.com/find/default.wl?bhcp—l&bQ1ocfnd=True&DS--MA%2DQRS... 2/6/2009 gate. GPI.it�'lJU�3 To the Department Officer making the Payment: Received of VIP Homes &Associates as Listed Above the sum of 50.00 Dollars for the Form A Filing Fee ending 1213/2008 for collections as per schedule of this date, filed in my office. Tr asurer �► A�'4 Town of Agawam 36 Main Street Agawam, Massachusetts 01001-1837 Tel. 413-786-0400 Fax 413-786-9927 ATE MEMO TO: Attorney Christopher.Johnson, Town Solicitor FROM: Planning Board SUBJECT: Form A -North Street Ext. - VIP Homes DATE: December 2, 2008 Attached please find a Forni A that was submitted by VIP Homes for property on North Street Ext. Parcel B as shown on the plan is an existing right of way. Please provide this office with an opinion on whether the paper street can be used for this purpose. Thank you. HLN,-21-2006 22.19 rUWN OF HUHWHrI ebb yJ2 e P.02 To' w' n- .of Aga vva� lop6 3 MainStreet Agawam,Massachusetts 01001-1837 TeL 41.3-786-0400 Fax 413-786-9927 FORM A ARvlication for Endorsement of Plan Not,Believed to &Quke Ao�rovai c FILE ONE COMPLETED FORM WITH THE PLANNING BOARD AND ONE COPY Wl x} Z:� THE TOWN CLERK IN ACCORDANCE WITH THE REQUIREMENTS OF SECTION 11-8--) =r Agawam, MAC J �' 20 C TO THE PLANNING BOARD: C-n The undersigned, believing that the accompanying plan of his property in the Town of Agawam does not constitute a subdivision within the meaning of the Subdivision Control Law, herewith submits said plan for a determination and endorsement that Planning Board approval under the Subdivision Control Law is not required. 1. Name of Applicant 'V 1 f HOME. -a- Address -.`I A U A L L)ry L L�I c ? kEr] N C f-�111 C 2. Name of Surveyor Rc r4 �Q A . H VC r'q r ej Address '�'7 k4 C-C T-, J3 I G uQ 3. Deed of Property Recorded in 114 9n( (�'c 1 42 Book /6 2-17 Page 4. location of Property 4oe-T 4 S r:p E- c F IVL'k-tH -57, .!xT. CAS� 0, 5. Describe the proposal in this submission: C' z 2 -25 ' s(ICI r `110 -r�, )W, rr46 L1IND atoofP vY R ATTACHMENTS -Two originals and three copies of plan by certified land surveyor. Filing Fee - $35.00. Signature of Owner �r Address 40 Y Afar-14 sd, e'< r '1' TAL P.02 MIR ..... N/F N/F N/F N/F N/F D CHARLES CALABRESE STE-PHEN SUSSMAN STEVEN SHECKLER GARY MANTOLESKY Mark McCormick ..B. 11675 P. 139 < B. 4869 P. 27 B. 4991 P. 323 B. 5230 P. 52 B. 10821 P. 555 0 E S81-3 '00"E C- 550.00' N F Q) D Michael Oleksak N F Leonard Matz B. -10828 P. 527 > < 1 3. 16478 P. 428 C14 Q) x as < 0 co 0 0) -0 ro -I- C-4 VIP Homes & Associates, LLC C H U R C H I L L S T R E E T B. 16050 P. 452 C/) 3.86 Acres Book of Plans 347 Page 113 N F C: Q) N/F > Wesley Schuff, Jr. < GLORIA M. MANTANEZ B. 7136 P. 305 B. 11675 P. 139 x N7 5 Parcel B'29'26"W :1 135.02' 5329 s.f., S81'-30' O"E To become . Wj*39' 2�5O O�' part of . 110.00, other land of VIP Homes 110,00, & Associates, LLC 3,30.C)O, 110.00, (D 0 > N F C) < V) JAMES J. GRAHAM 0 7' N. / F B. 12628 P. 451 2c� -0 C BRAD G. COLL'NS 0 L6 N/F B. 15122 P. 242 N F N F -0 fn 0 -0 on C'4 M AR�O TROLiO CD Parcel A CD Vladislav Vorobel - L0 CD Cf) 0 r Co rn J B. 16317 P. 86 B. 12252 P. 357 CD 00 0 Cf) Residence 7022 T C' T ?I()-00, ti S T T 71-3 9'2,9 W Total 91-93' T N S N 71- 25.,38, 3 29"Vv 0 N f-7 ED DEC 0 -3 Z098 GRAPHIC SCALE A L411 t I �j A 40 0 20 40 60 160 This plan prepared in accordance 1 1 1 1 1 of M with the rules and regulations of IALD This pLcLr does not constitute a the Registry of Deeds. RON R. subcflvisio`n therefore approval IN FEET Date 1-1!j�j ID e) HUOT under the Subdivision Controt I inch = 40 ft. No. 31795 Law is not required, Dater DRAWN BY: PLAN OF PROPERTY IN Agawam Fanning Boo-d AGAWAMI MA DRAWING # OF VIP Homes Associates, LLC � 29 Avalon Place Feeding Hills, MA ANDERSON ASSOCIATES 375 WALNUT STREET EXT, P.D. BOX 382 AGAWAM, MA 01001 Land Surveyor Land Manning Consultant NO. DATE DESCRIPTION BY SCALE: 1 " 407DATE:Nov., 2008 0"� N 71-392 110.00?1W -3�qTotal 31 '29-W �91 9,3' N 71 n to" To: Solicitor Johnson VL ( v2. From: Kristen Sopet Re: Right to access Alexander Avenue (paper street) Date: 1l'27i09 Gw�trcc. A n1 Issue: Q My notes from December are a little vague on this p i appears to center on who has a right of access to Alexander C:—, Additionally, a memo from the Engineering Departn p{\ Cc- addressed to John Stone appears to indicate that the Law De investigate whether VIP Homes & Associates (hereinafter �"�' paper streets, Richmond Avenue, Churchill Avenue. and Ale Brief Answer: According to G.L. c. 183 section 58, VIP has easements to use Richmond Avenue, Churchill Avenue, and Alexander Avenue along their entire lengths because the paper streets have been adequately contemplated and designated and provide convenient means for accessing established public roads. Likewise, abutters alo�ig Richmond Avenue, Churchill Avenue, and Alexander Avenue have easements to use those paper streets for the same reasons. Additionally, VIP owns to the centerline of'Richinond Avenue and Alexander Avenue. VIP also owns the entire portion of Churchill Avenue which is surrounded on all sides by VIP property. Discussion: A. VIP's Ownership to the Centerline of Richmond Avenue, Churchill Avenue, and Alexander Ai-en tic General Laws Chapter 183, section 51') "mandates that every deed of real estate abutting a way include the fee interest of the grantor in the way to the centerline... unless the instrument evidences a different intent by an express excep±ion or reservation." Tattan v._Kurlan, 43 Mass. App. Ct. 239, 243 (1992)(citing G.L. c. 183 § 58)(internal quotation marks omitted). Thus, G.L. c. 183 § 58 serves to codify the common law presumption that a grantor intended to pass title to the middle line of the way. Id. This rule applies to proposed roads, or paper streets, as well. Murphy v. 1WurtRealty of Brockton Iran., 348 Mass, 675, 680(1965); Lemay v. Furlado, 182 Mass. 280, 281 (1902). Therefore, it is likely that VIP owns the land from the boundaries of lots owned by VIP to the centerline of Richmond Avenue and Alexander Avenue for the portions of those paper streets which touches VIP's property. Additionally, VIP would appear to own the entirety of Churchill Avenue where the paper street is touched on both sides by VIP's land. 1. Grantor's intent Although the deed by which VIP acquired its land, recorded in the Hampden County Registry of Deeds Book 16050 Page 452, refers to a plan, recorded at Plans 323 Pages 99, which shows the three paper streets in question, this designation of the ways as proposed streets would likely be insufficient to establish the grantor's intent to reserve title to the land. In Murphy v. Alart Realty of Brockton lne., 348 Mass. 675 (1965), the grantor attempted to deny any intent to w To: Solicitor Johnson From: Kristen Sopet Re: Right to access Alexander Avenue (paper street) Date: 1/27/09 Issue: My notes from December are a little vague on this particular matter; however, the issue appears to center on who has a right of access to Alexander Avenue, a paper street. Additionally, a memo from the Engineering Department dated September 25, 2007 and addressed to John Stone appears to indicate that the Law Department has been requested to investigate whether VIP Homes &Associates (hereinafter"VIP") has ownership rights of three paper streets, Richmond Avenue, Churchill Avenue, and Alexander Avenue. Brief Answer: According to G.L. c. 183 section 58, VIP has easements to use Richmond Avenue, Churchill Avenue, and Alexander Avenue along their entire lengths because the paper streets have been adequately contemplated and designated and provide convenient means for accessing established public roads. Likewise, abutters along Richmond Avenue, Churchill Avenue, and Alexander Avenue have easements to use those paper streets for the same reasons. Additionally,VIP owns to the centerline of Richmond Avenue and Alexander Avenue. VIP also owns the entire portion of Churchill Avenue which is surrounded on all sides by VIP property. Discussion: A. VIP's Ownership to the Centerline of Richmond Avenue, Churchill Avenue, and Alexander Avenue General Laws Chapter 183, section 58 "mandates that every deed of real estate abutting a way include the fee interest of the grantor in the way to the centerline... unless the instrument evidences a different intent by an express exception or reservation." Tattan v.Kurlan, 43 Mass. App. Ct. 239, 243 (1992)(citing G.L. c. 183 § 58)(intemal quotation marks omitted). Thus, G.L. c. 183 § 58 serves to codify the common law presumption that a grantor intended to pass title to the middle line of the way. Id. This rule applies to proposed roads, or paper streets, as well. Murphy v. Mart Realty of Brockton Inc., 348 Mass. 675, 680(1965); Lemay v. Furtado, 182 Mass. 280, 281 (1902). Therefore, it is likely that VIP owns the land from the boundaries of lots owned by VIP to the centerline of Richmond Avenue and Alexander Avenue for the portions of those paper streets which touches VIP's property. Additionally, VIP would appear to own the entirety of Churchill Avenue where the paper street is touched on both sides by VIP's land. 1. Grantor's intent Although the deed by which VIP acquired its land, recorded in the Hampden County Registry of Deeds Book 16050 Page 452, refers to a plan, recorded at Plans 323 Pages 99, which shows the three paper streets in question, this designation of the ways as proposed streets would likely be insufficient to establish the grantor's intent to reserve title to the land. In Murphy v. Mart Realty of Brockton Inc., 348 Mass. 675 (1965), the grantor attempted to deny any intent to I convey a fee to the center of a contested strip of land by showing that the deed incorporated a plan, which designated and described the strip as a proposed road; by producing evidence that the grantor continued to pay taxes on the property; by establishing that the land had been undeveloped; as well as by providing testimony to deny such intent. Id. at 680. See also Lemay v. Furtado, 182 Mass. 280, 281 (1902)(holding that the "special facts" set forth by grantor to deny intent to transfer fee of the strip of land in question, such as the fact that grantor farmed hay on said land, was insufficient to overcome the presumption). Therefore, it is highly likely that VIP owns to the centerline of Richmond Avenue and Alexander Avenue given the absence of any express provision in the deed reserving fee to the grantor. B. Easement Rights Along Paper Streets G.L. c. 183 § 58 has also been interpreted to provide for the right of paper streets abutters to use the entire length of the proposed road. Brennan v. DeCosta, 24 Mass, App. Ct. 968, 968 (1987). This right applies to paper streets "so long as [the paper street] is contemplated and sufficiently designated." Brennan v. DeCosta, 24 Mass. App. Ct. 968, 968 (1987)(citations omitted);see also Goldstein v. Beal, 317 Mass. 750, 755 (1945); Casella v. Sneierson, 325 Mass. 85, 89 (1949); Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677-678 (1965). Therefore, it is likely that VIP, as well as other owners of parcels abutting the paper streets in question, have easement rights along the entire length of the Richmond Avenue, Alexander Avenue and Churchill Avenue. 1. Were the paper streets sufficiently contemplated and designated? In order to determine whether a paper street has been"contemplated and sufficiently designated," the court may look to recorded plans referred to in deeds transferring title to the lands in question. Murphy v. Mart Realty of Brockton Inc., 348 Mass. 675, 678 (1965); Tattan v. Kurlan, 43 Mass. App. Ct. 239, 247 (1992). This approach has been referred to as the "incorporation rule,"and is applicable only in regard nonpossessory interests of abutters, such as easements. Tattan v._Kurlan, 43 Mass. App. Ct. 239, 247 (1992). Therefore, while the existence of a deed which references a plan that identifies a paper street does not overcome the presumed intent of the grantor to convey a fee to the middle of a way, such a deed may provide adequate basis to hold that the grantee has an easement along the entire proposed street. Id. 246-47 ("The incorporational rule was not intended and has never been used to determine title..."); Wellwood v. Havrah Mishna Anshi Sphard Cemetary Corp, 254 Mass. 350, 354 (1926). The recorded deed by which VIP acquired its parcel of land refers to a plan that described Richmond Avenue and Alexander Avenue as proposed streets connecting to North Street Extension, and Churchill Avenue as a proposed street that extends beyond the bounds of the plan,but does not show whether it connects to an established street. As to Richmond Avenue and Alexander Avenue, the situation is similar to that of Murphy v. Mart Realty of Brockton Inc. in which the court concluded that a recorded plan showing a proposed street running north from an actual street and referenced in a deed transferring property was sufficiently designated. 348 Mass. 675, 678 (1965). Given the similarities between the plan found in Murphy v. Mart Realty of Brockton Inc. and that of VIP, it is highly probable that Richmond Avenue and Alexander Avenue would be considered adequately contemplated and sufficiently designated so as to allow for the application of G.L. c. 183 §58 to afford VIP an easement to use the two paper streets along their entire lengths. Regarding Churchill Avenue,however, one must refer to the deeds of abutters in order to view the established road to which it connects. According to Plan M, Page 10 as recorded in the Hamden County Registry of Deeds and referenced in a deed conveying land to Elly Matz, who also abuts Churchill Avenue, recorded at Book 8818 Page 528, Churchill Avenue connects to Belmont Avenue, an established way. Therefore, it is likely that Churchill Avenue has likewise been sufficiently designated and contemplated so as to provide VIP with an easement along the proposed street along its entire length 2. Access to Established Roadways Furthermore, it is highly likely the grantor and those claiming under him, for example the current owners of lots located along Richmond Avenue, are estopped to deny the existence of the paper streets because they were described in plans which were referenced by deeds conveying ownership. Farnsworth v. Taylor, (9 Gray) 162, 166 (1857)("where land is conveyed which is situate on a street or way, and reference is made in the deed of conveyance to a plan on which said street is delineated, the plan exhibited at the sale, and subsequently recorded by the grantor in the registry of deeds, is made a part of the deed, and estops the grantor and those claiming under him to deny the existence of the street as delineated on the plan..."); see e.g. Goldstein v. Beal, 317 Mass. 750, 755 (1945). This "well settled principle"is usually applied when the way has actually been staked out or used. Goldstein v. Beal, 317 Mass. 750, 755 (1945)(holding that a landholder had no rights to a passageway shown on a plan, which was never constructed and would required the removal of six feet of a constructed building); Wellwood v. Havrah Mishna Anshi Sphard Cemetery Co., 254 Mass. 350, 355 (1962)(holding that a landowner could not have an easement over a way, which was delineated on a plan but had not been used or"marked out" and would not lead directly to, or be a"convenient means of reaching," a public way). However, as stated in Wellwood, the main factor in determining whether one has an easement along a delineated way, such as Churchill Avenue, is whether the way provides "access to public highways." 254 Mass. at 354;Prentiss v. Gloucester, 236 Mass. 36, 52 (1920). Therefore, while it appears as though the three papers street at issue have neither been staked out or used, it is highly likely that VIP has an easement over the entire length of the paper streets as they are convenient means or reaching public ways and in fact lead directly to established roads. C. Rights of Other Abutters That May Affect VIP's Ownership and Easements However, while VIP would likely be able to establish rights of easement along the entire length of all three paper streets, so too may other abutters. Brennan v. DeCosta, 24 Mass. App. Ct. 968, 968 (1987). Therefore, although VIP owns to the centerline of Richmond Avenue and Alexander Avenue, and the entirety of a portion of Churchill Avenue, VIP may not infringe upon the rights of abutters with easements along those paper streets when constructing improvements. Guillet v. Livernois, 297 Mass. 337, 339-40 (1937)(holding that a landowner with an easement over a paper street but without ownership rights was allowed to raise the level of the street, pave a portion of it, construct a sidewalk, and remove turf and a retaining wall built on the proposed way by another landowner with ownership rights). Specifically, the only restriction on the right of a landowner with an easement over a proposed street to "make [the street] passable and usable for its entire width"is that the improvements must be"reasonable in view of the equal rights of others." Id. at 340-341;Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 679 (1965).