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12-011C parcel a-2 planning0 Andrew J. Crystal September 20, 1996 Page 2 Ms. Watson brings this petition because she has been unable to sell her house and lot on North Farms Road because the paper lay -out of "Birdcliff Road" runs through a portion of the house and creates a title defect. She has brought an action in Hampshire Superior Court, with notice to all of the owners and mortgagees, to eliminate Birdchff Road. All of the owners and mortgagees have defaulted or assented to the entry of judgment with the exception of George Holland and Susan O'Neill, owners of a lot at the corner of Country Way and North Farms Road (the ANR Plan parcel), who have objected to the elimination of the easement because it has not been approved by the Northampton Planning Board under G.L. c. 41, §81W. Accordingly, Ms. Watson brings this Petition. Section 81 W provides that no modification or amendment or recision of a plan of a subdivision shall affect the lots in an approved subdivision, without the consent of the owners of the lots. The Massachusetts courts have interpreted the word "affect" in section 81W to mean those changes that would impair the marketability of titles acquired by bona -fide purchasers from subdividers. "Examples would be modification which altered the shape or area of lots, denied access, impeded drainage, imposed easements, or encumbered the manner and extent of use of which the lot was capable when sold." Patelle, supra, at 282. In this matter, eliminating "Birdcliff Road" improves rather than impairs the marketability of Holland and O'Neill's property. In this case, the only owners who have objected to the elimination of "Birdcliff Road" do not even have rights in the subdivision. Cynthia Watson resurveyed a portion of the property and created an 80,000 square foot lot with frontage on North Farms Road and Country Way and obtained approval of the Plan from the Planning Board under Section 81P of the Subdivision Control Law. The owners of this lot (George Holland and Susan O'Neill) do not even have standing to assert an interest in the subdivision because the lot is not subject to the subdivision restrictions and no reference to the subdivision is made in their deed other than the right to use Country Way. In conversations with George Andrikitis and Wayne Feiden, both have requested that , Birdcliff Road" be eliminated. The City does not want the road built nor to have the property further built upon in accord with the approvals of the 1960 subdivision plan. In order to sell her property at North Farms Road, Florence, Northampton, the petitioner, Cynthia J. Watson, respectfully requests that "Birdchff Road" be eliminated from the "Brookwood" subdivision plan of Hampshire American Homes recorded in the Hampshire County Registry of Deeds at Plan Book 56, Pages 100 and 101. In accord with the provisions of the final paragraph of Section 81W, I enclose a proposed Order for vote by the Planning Board. Upon approval and certification by the City Clerk, after twenty days, I will record the vote in the Hampshire County Registry of Deeds which will include the marginal references to the original plan at Plan Book 56, Pages 100 and 101 and in the Grantor Index for all owners of property in the subdivision. ��IlNo ee • Andrew I Crystal September 20, 1996 Page 3 Please schedule a hearing at the earliest date and advise me of the date of the hearing. EDE/kap Encs. cc: Cynthia I Watson • HAM ?. 'o ', - 2,: R CRT � k wz?1 1 JR. Jr _ tft ' EALTH OF MASSACHUSETTS J 3 DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, sss 29 8 28 Ah '�o SUPERIOR COURT DEPARTMENT CYNTHIA J. WATSON Plaintiffs V. THOMAS R LARKIN, JR., et al Defendants C.A. No. 95 -199 STIPULATION AND ASSENT TO ENTRY OF JUDGMENT _7A 6, Defendant, CITY OF NORTHAMPTON stipulates that it is the owner or holder Of an interest in property in the "Brookwood" subdivision, so called, in Northampton, Massachusetts; and assents to the Entry of Judgment, as requested by the Plaintiff, declaring the easement of the paper street, "Birdcliff Road ", extinguished; and declaring the easement of the paper street, "Rustlewood Ridge ", as shown on the Brookwood Plan to also be extinguished, SUBJECT TO the rights of the public over Rustlewood Ridge as an accepted public way in the City of Northampton. Dated: May / 5 1996 The Defendant Ci of North pton By: Janet M. 81h S h e i p a r d, Esq. City Solicitor City of Northampton 212 Main Street Northampton, MA 01060 — Nra�_ 1 J 1 JR. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, SS. jUL 25 8 21 tii'� y0 SUPERIOR COURT DEPARTMENT CYNTHIA J. WATSON, Plaintiff V. THOMAS F. LARKIN, JR., et al Defendants C.A. No. 95 -199 STIPULATION AND ASSENT TO ENTRY OF JUDGMENT Defendants, STANLEY ROTHMAN and ELEANOR B. ROTHMAN stipulate: 1 • STANLEY ROTHMAN owns the property at 67 Country Way, Northampton, by virtue of the deed from STANLEY ROTHMAN and ELEANOR B. ROTHMAN dated September 1, 1994 and recorded in the Hampshire County Registry of Deeds at Book 4551 Page 308. 2. We purchased the property from Herbert N. Heston and Mary J. Heston by deed dated October 18, 1977 and recorded in the Hampshire County Registry of Deeds at Book 1985 Page 155. 3. Our deeds to 67 Country Way, Lots #18 and #19 of the "Brookwood" subdivision contain express easements over Country Way and Birdcliff Road as shown on said Plan recorded in said Registry in Plan Book 56, Pages 96 - 101. 4. `Birdcliff Road" as shown on the plan of the Brookwood subdivision is adjacent to the easterly line of our property, lots #18 and #19. 5. "Birdcliff Road" has never been laid out or constructed in any fashion on the ground and has never been used for any purpose as an easement or access to our property or any other properties in the "Brookwood" subdivision. We, STANLEY ROTHMAN and ELEANOR B. ROTHMAN, request that judgment be entered as requested by the plaintiff declaring any easement of the paper 0 COMMONWEALTH OF MASSACHUSETTS '�; -- ' DEPARTMENT OF THE TRIAL COURT 1 t d HAMPSHIRE, SS. SUPERIOR COURT DEPARTMENT CYNTHIA J. WATSON, Plaintiff V. THOMAS F. LARKIN, JR., et a1 Defendants C.A. No. 95 -199 ;j v�� STIPULATION AND ASSENT TO L ENTRY OF JUDGMENT U Defendants, THOMAS F. LARKS JR � G1 and KAREN B. L ARKIN stipulate: ry - -- ca rQ cYr - Q y ` 1 • We, THOMAS F. LARKIN, JR. and 1 KAREN B. LARKIN are the owners of property at 39 Country Way, Northampton, Massachusetts by virtue of the deed from Stanley H. Galusza and Elizabeth F. Galusza dated June 28, 1984 and recorded in the Hampshire County Registry of Deeds at Book 2468 Page 261. 2. Our deed to 39 Country Way, lots #4 and #6 of the "Brookwood" subdivision, contains express easements over Country Way and "Birdcliff Road" as shown on said Plan recorded in said Registry in Plan Book 56, Pages 96 - 101. 3. `Birdcliff Road" as shown on the Plan of the Brookwood subdivision is adjacent to the northerly side of our property. 4. `Birdcliff Road" has never been laid out or constructed in any fashion on the ground and has never been used for any purpose as an easement or access to our property or any other properties in the "Brookwood" subdivision. We, THOMAS F. LARKIN, JR. and KAREN B. LARKIN be entered as requested by the plaintiff declaring any easement request of the tpaperdstreet, "Birdcliff Road" over the plaintiff's property and over our property be extinguished. We, Thomas F. Larkin, Jr. and Karen B. Larkin state that the facts set forth in this Stipulation And Assent To Entry Of Judgment are true. .'. a . R T — i„ y•, Jai. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT 1F THE TRIAL COURT AL 29 8 29 R 0 HAMPSHIRE, SS. SUPERIOR COURT DEPARTMENT CYNTHIA J. WATSON Plaintiff u THOMAS F. LA.R SIN, JR., et ai Defendants C.A. No. 95 -199 STIPULATION AND ASSENT TO ENTRY OF JUDGMENT Defendants, EDWARD L. WINGFIELD and J. PATRICIA WINGFIELD stipulate: 1. We, EDWARD L. WINGFIELD and J. PATRICIA WINGFIELD by virtue of the deed from Samuel Topal dated September 12, 1974 and recorded in the Hampshire County Registry of Deeds at Book 1796 Page 87, are the owners of the property at 49 Country Way, Northampton, Massachusetts. 2. Our deed to 49 Country Way, lot #5 of the "Brookwood" subdivision, contains express easements over Country Way and `Birdcliff 'Road as shown on said plan recorded in said Registry in Plan Book 56, Pages 96 - 101. 3. "Birdcliff Road" as shown on the Plan of the Brookwood subdivision is adjacent to the westerly side of our property. 4. `Birdcliff Road" has never been laid out or constructed in any fashion on the ground and has never been used for any purpose as an easement or access to our property or any other properties in the "Brookwood" subdivision. We, EDWARD L. WINGFIELD and J. PATRICIA WINGFIELD, request that judgment be entered as requested by the plaintiff declaring any easement of the paper street, `Birdcliff Road" over the plaintiff's property and over our property be extinguished. 278 20 Mass. App. Ct. 271 She Enterprises, Inc. v. State Building Code Appeals Board. problems. See, e.g., Commonwealth v. Welansky, 316 Mass. 383 (1944). The distinction drawn by the board between a restaurant offering occasional, or incidental, entertainment, where the primary emphasis is on serving food, and a nightclub, where food is served but the primary emphasis is on entertainment, comports with common usage and is a reasonable interpretation of the Code. An agency's reasonable interpretation of its own regulations, particularly if consistently applied, is entitled to respect in the courts. Finkelstein v. Board of Registration in Optometrv, 370 Mass. 476, 478 (1976). Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 782 (1980). Morin v. Com- missioner of Pub. Welfare, 16 Mass. App. Ct. 20, 24 (1983). Cliff House Nursing Home, Inc. v. Department of Pub. Health, 18 Mass. App. Ct. 112, 115 (1984). Morales v. Commissioner of Pub. Welfare, 18 Mass. App. Ct. 239, 244 (1984). There is no merit to the plaintiff's other contentions. If, as the building inspector concedes, his department erred in issuing a certificate of occupancy for nightclub (F2) use without having first required the plaintiff to apply for a permit for change of use, that error does not estop the building inspector from requir- ing compliance with the relevant Code provisions at this time. Outdoor Advertising Bd. v. Sun Oil Co., 8 Mass. App. Ct. 872, 873 (1979). We note, in this connection, that the record does not disclose any reason why the plaintiff would be denied the requisite permit. Indeed, the board found that "[s]tructurally [the premises] would meet the requirements of the [C]ode for either the F2 or F3 (nightclub or restaurant) use," reflecting the position of the building inspector, who told the board that he was not aware of anything "in the Building Code ... that would stop [the required] [p]ermit from being issued." Judgment affirmed. 20 Mass. App. Ct. 279 279 Patelle v. Planning Board of Woburn. VIRGINIA E. PATELLE & others' vs. PLANNING BOARD OF WOBURN & another' (and a companion case'). Middlesex. March 7, 1985. — June 28, 1985. Present: BROWN, CUTTER, & KASS, JJ. Subdivision Control, Zoning, Plan approved under subdivision contr ol law, Amendment to by -law or ordinance. Notice. A municipal planning board had authority under G. L. C. 41, § 81W, to approve modifications to a recorded subdivision plan proposed by its developer without the consent of owners of lots in the subdivision, where the alterations approved by the board, affecting traffic pattern, view. and over -all neighborhood density, did not have a direct and tangible impact on the property rights of the lot owners. [280 -2841 In the circumstances, owners of lots in a subdivision received adequate notice of a hearing before the municipal planning board held for the Purpose of considering modifications to the recorded subdivision plan Proposed by its developer. [2841 A real estate developer who initially submitted a subdivision plan to a munic- ipal.planning board in 1976, and later, in 1980, submitted to the board Proposed modifications to the recorded plan was not required under G. L. c. 40A, § 6, sixth par., to comply with an amendment to the city's zoning ordinance adopted in 1978. [284] CIVIL ACTIONS commenced in the Superior Court Department on October 25, 1976, and May 2, 1980, respectively. The cases were heard by Richard S. Kelley, J., on a master's report. Mark A. White for Virginia E. Patelle & others. John J. Veysey for George Whitten. 'Other lot owners in Blueberry Hill I. 'George Whitten, the subdivision developer. 'Richard D. Sevier & others vs. Planning Board of Woburn. 282 2 0 M a s s. App. C t. 27 Patelle v. Planning Board of Woburn. a further provision be added, to the effect that no titles or mortgages acquired in good faith for valuable consid- eration under the approval shall be affected by a sub- sequent amendment, modification or rescission." As an accompaniment to its recommendation the State Plan- ning Board offered 1949 House Doc. No. 122, a bill containing language similar to that adopted that year as St. 1949, c. 182, § 1." With relatively minor differences, the language of the 1949 act is that which now appears in the first clause of the second paragraph of § 81W. This history establishes that the plan modifications which the Legislature sought to guard against when it used the verb "affect" were those which im- paired the marketability of titles acquired by bona fide purchas- ers from subdividers. Examples would be modifications which altered the shape or area of lots, denied access, impeded drain- age, imposed easements, or encumbered the manner and extent of use of which the lot was capable when sold. The target of the statute was not those changes which might have an indirect qualitative impact, such as alteration of a dead -end street into a through street. Any number of physical changes affect, in greater or lesser degree, lots in a subdivision, e.g., location of trees, width of streets, planting between the curb and lot lines, traffic signals, overhead or underground utilities, or street lighting. They do not, however, limit the utility of those lots and, hence, do not 'House Doc. 122 proposed: "No modification, amendment or rescission of a plan of a subdivision shall affect lots, sites and divisions which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plan without the consent in writing of the owner of such lots, sites or divisions and of the holder of the mortgage or mortgages, if any, thereon." The text of St. 1949, c. 182, § 1, was: "No modification, amendment or rescission of the approval of a plat of a subdivision or change in such plat under this section shall affect lots, sites and divisions which have been sold or mortgaged in good faith and for a valuable consideration subsequent to the approval of the plat, or any rights appurtenant thereto, without the consent in writing of the owner of such lots, sites or divisions and of the holder of the mortgage or mortgages, if any, thereon." 20 Mass. App. Ct. 279 283 Patelle v. Planning Board of Woburn. "affect" them in the statutory sense. The alterations approved by the planning board in the instant case fall into this indirect impact category. They affect traffic pattern, view, and over -all neighborhood density, matters as to which the plaintiffs had acquired no rights through covenants, easements, or other too] of private land use control. Cf. Green v. Board of Appeal of Norwood, 358 Mass. 253, 262 (1970); Murphy v. Donovan, 4 Mass. App. Ct. 519, 526 -528 (1976). The plaintiffs' com- plaints about traffic or an unwanted backyard neighbor are matters with which § 81W is unconcerned. There is no support for the plaintiffs' position in Stoner v. Planning Bd. of Agawam, 358 Mass. 709, 714 -715 (1971), or Bigham v. Planning Bd. of No. Reading, 362 Mass. 860 (1972). In each of those cases a planning board had purported to rescind altogether a subdivision plan, rather than modifying it, thus rendering lots sold from the subdivision useless for building purposes. See Murphy v. Planning Bd. of Norwell, 5 Mass. App. Ct. 393, 395 (1977). General policy considerations underlying the Subdivision Control Law support this interpretation of § 81 W. A planning board is authorized by the Subdivision Control Law to protect the "safety, convenience and welfare" of a municipality's in- habitants by "regulating the laying out and construction of ways in subdivisions. "G. L. c. 41, § 81M. The law is designed to benefit those inhabitants primarily and those who purchase lots in developments only secondarily. Gordon v. Robinson Homes, Inc., 342 Mass. 529, 531 -532 (1961). Compare Dolan v. Board of Appeals of Chatham, 359 Mass. 699, 701 -702 (1971). As part of their powers, planning boards "coordinat[e] the ways in a subdivision with each other and with the public ways in the city or town in which it is located and with the ways in neighboring subdivisions." G. L. c. 41, § 81M. See McDavitt v. Planning Bd. of Winchester, 2 Mass. App. Ct. 806 807 (1974). An expansive construction of the word "af- fect" in § 81W would unduly restrict this power. Effectively, a planning board would be unable to authorize, and a developer would be unable to execute, development of property in stages, Ll ORDER AMENDING SUBDIVISION PLAN Upon petition of Cynthia J. Watson, an interested person, the Northampton Planning Board, at its meeting on October , 1996, upon motion made and seconded; VOTED: to amend the subdivision plan of "Brookwood" on a Plan dated February, 1960, and approved by the Northampton Planning Board August 16, 1960 and recorded in the Hampshire County Registry of Deeds in Plan Book 56, Pages 96 - 101, by deleting the paper street, `Birdcliff Road" from the plan on pages 100 and 101 of Plan Book 56. October , 1996 APPROVED: Northampton Planning Board By: