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Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property

In a current real estate case, Massachusetts property owners brought an action seeking to annul a special permit granted by the town’s planning board for the construction of a 16-unit housing development. In Parker v. Freedman (Mass. Land Ct. Aug. 26, 2016), the plaintiffs contended the development would negatively affect their property and the surrounding neighborhood with increased traffic, noise, and congestion, and the plan would impermissibly allow the public onto their property, overburdening the right of way easement.trees

In Parker, the plaintiffs’ lot was between another single-family residence and the defendant’s lot. A right of way easement over a driveway partially located on the plaintiffs’ property allowed vehicles access across the lots in order to reach a public road. The special permit at issue provided for public access to the future condominium building over the right of way easement for the purposes of parking and using trails to be established on an open space parcel. The proposed development and the public trails, the plaintiffs argued, would drastically increase the intensity of the use of the driveway and overburden the right of way to their detriment.

In Massachusetts, if an easement is granted by deed and not limited in its scope by the terms of the grant, it is available for the reasonable uses to which the dominant estate may be devoted. The plaintiffs, as owners of property burdened by an easement, have the right to use their land in any manner that does not unreasonably interfere with the rights granted by the easement. However, the party benefited by an easement, here the defendant, is entitled to make only the uses reasonably necessary for the purpose of the easement. The reasonableness determination is governed by equitable principles, and the benefits and convenience to both parties are taken into account.

In Parker, the Land Court found that, despite the fact that the easement initially served lots containing single-family residences, allowing access for multiple condominium owners was not an unreasonable or inconsistent use of the easement. However, the court went on to conclude that the public use of the easement to access parking and walking trails, which was required as part of the special permit, was unreasonable. The court reasoned that access over a private right of way for public use, regardless of the eventual intensity of the use, is access for a purpose that is different in kind from access for only private purposes by those living at the housing development.

Accordingly, the Land Court held that the planning board exceeded its authority in conditioning the special permit on a requirement that the developer provide public access for public parking and trail access over the plaintiffs’ land. The court therefore remanded the matter back to the planning board to consider the impact of the development on the easement over the plaintiffs’ property.

If you are involved in a property dispute, an experienced real estate lawyer can represent your interests and help resolve the issue. At Pulgini & Norton, our land use attorneys assist individuals in a variety of real estate matters in Massachusetts, including mortgages and closings, easements, building permits, and more. To schedule a consultation with a talented member of our team, call Pulgini & Norton by phone at (781) 843-2200 or contact us online.

More Blog Posts:

Massachusetts Appeals Court Holds Plaintiff’s Adjacent Lots Merged with Common Ownership in Zoning Case, Massachusetts Real Estate Lawyer Blog, published July 26, 2016

Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015

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