Earlier this month, the SJC remanded an interesting easement case back to the Land Court and ordered the Land Court judge (Piper, J.) to take a second look at the width of the easement that he had laid out to the extent that it conflicted with local subdivision road regulations.
In Cater v. Bednarek, 2012 WL 2146792, SJC-10985 (Mass. June 15, 2012), the two main issues before the Land Court were
(1) whether an easement had been extinguished by estoppel (the Land Court held that it had not, SJC confirmed); and
(2) the location and layout of the easement at issue.
It is the SJC's treatment of the second issue that is instructive for land use attorneys, and provides a cautionary tale of why it is important to be cognizant (at trial) of all sources of law that may affect a court's judgment about the layout of an easement.
As most practitioners know, "[w]here the instrument creating an easement does not fix its location or bounds, a court may do so in the absence of agreement by the parties." Cater at *6 (citing Mahoney v. Wilson, 260 Mass. 412, 414 (1927) and Mugar v. Massachusetts Bay Transp. Auth., 28 Mass.App.Ct. 443, 445 (1990)). In these situations, judges will need to balance the interests of both the servient and the dominant estates, so that damage to the servient estate is minimized and utility for the dominant estate is maximized.
At trial, the Land Court judge applied these principles and ordered that the easement be fixed to a width of twelve feet. He also ordered that the roadway could not be constructed without first obtaining permit approval from the planning board.
In some ways, the judge's hands were tied as to where he could locate the easement given the nature of the area, including dunes. The plaintiff's parcel also had no direct frontage, and so an access road would be required under the town's subdivision regulations in order for that parcel to be developed.
The subdivision design standards required, among other things, that an access road have a width of "at least fourteen feet". Additionally, the subdivision regulations also allowed, for lands of a rural nature such as plaintiff's land, that "'the [planning board] may, at its discretion, waive strict compliance with the [design standards] in order to allow roads servicing not more than four (4) dwellings to be more in keeping with the rural landscape . . . ." except in one regard: "in no instance shall the width of the road surface be waived."
As the SJC noted, "[i]t is not an abuse of discretion for a judge to impose limits on a roadway that comply with design standards in town regulations only if the town planning board in its discretion waives strict compliance with those standards, provided the judgment, as it does here, forbids the construction of any such roadway without permitting approval." Id.
The glaring problem, however, is that the Land Court judgment set the maximum width of the access road (easement) to twelve feet, yet the planning board is expressly prohibited from waiving the minimum road width for this type of road. "[A]s to the width of the roadway, the judgment suffers from an inherent contradiction: compliance with the judgment cannot be in compliance with law, but compliance with law is required by the judgment." Id. For this reason, the SJC remanded the case back to the Land Court so that the judge could resolve the issue.
The SJC decision indicates that neither party raised the minimum road width requirements as a constraint upon the layout and location of the easement at trial. In fact, at least some experts at trial (erroneously) testified that minimum road width requirements could be waived by the planning board. Though it is surprising to think that the fourteen foot width standard was not an issue at trial, it is a reminder of the care that counsel must take in framing requested relief.
Now, it appears, the judge will once again have to revisit the issue of where best to locate the easement with an additional two feet of width, something that he already noted at trial "substantially increases the amount of the landscape that is disturbed . . . ." Id. at *3. It will be interesting to follow how the Land Court judge will locate the new easement on remand, and what kind of additional testimony (if any) and time will be required to do so.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.