Perry, et al. v. Aiello, et al. (Lawyers Weekly No. 11-121-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. 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; SJCReporter@sjc.state.ma.us 16-P-1309 Appeals Court SAMUEL D. PERRY & others,[1] trustees,[2] & another[3] vs. VIRGIL AIELLO & others.[4] No. 16-P-1309. Suffolk. May 3, 2017. – September 19, 2017. Present: Kinder, Henry, & Desmond, JJ. Easement. Way, Private. Real Property, Easement, Restrictions. Adverse Possession and Prescription. Practice, Civil, Injunctive relief. Civil action commenced in the Land Court Department on June 11, 2013. The case was heard by Robert B. Foster, J. Diane C. Tillotson for the plaintiffs. Paul Needham for the defendants. HENRY, J. The trustees of the 63 Beacon Street and 64 Beacon Street, Boston, Massachusetts, Trusts for the Benefit of King’s Chapel (the King’s Chapel trustees); 66 Beacon Street, LLC (LLC); and the DeLuca defendants own abutting properties, and dispute the extent of the rights the DeLuca defendants have in a ten-foot wide passageway which runs between the King’s Chapel property on one side, and the DeLuca and LLC properties on the other side. A judge of the Land Court concluded that a 1947 agreement between the parties’ predecessors in interest is partially enforceable and limits the DeLuca defendants’ use of the portion of the passageway they do not own but over which they have a right of passage. The judge rejected the DeLuca defendants’ assertion that they have acquired by prescription the right to park on the passageway, but concluded that they may temporarily stop a truck in the passageway once per day to load trash and transport it off site. We affirm in part and reverse in part. Background. The DeLuca defendants own four lots in the Beacon Hill section of Boston at 7-17 Charles Street which, since before 1920, have housed DeLuca’s Market, a grocery and wine store. DeLuca’s Market is bounded by Charles Street to the west, Branch Street to the north, 65-66 Beacon Street (owned by the LLC) to the south, and the passageway to the east. Across the passageway is 63-64 Beacon Street, owned by the King’s Chapel trustees, which runs the full length of the passageway and abuts Branch Street to the north and Beacon Street to the south. The LLC property, 65-66 Beacon Street, is bounded by the DeLuca defendants’ property to the north, the passageway to the east, and Beacon Street to the south. The judge found and […]
Aiello v. Planning Board of Braintree, et al. (Lawyers Weekly No. 11-044-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. 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; SJCReporter@sjc.state.ma.us 15-P-1321 Appeals Court ROGER AIELLO, trustee,[1] vs. PLANNING BOARD OF BRAINTREE & others.[2] No. 15-P-1321. Suffolk. October 20, 2016. – April 14, 2017. Present: Meade, Milkey, & Kinder, JJ. Practice, Civil, Zoning appeal, Standing. Zoning, Appeal, Person aggrieved, By-law. Civil action commenced in the Land Court Department on October 14, 2009. The case was heard by Karyn F. Scheier, J. Brian K. Bowen for the plaintiff. Jason W. Morgan for McCourt Construction & another. Carolyn M. Murray (Judy A. Levenson also present) for planning board of Braintree. MEADE, J. In this matter we examine the issue of standing to appeal from a zoning decision in the context of an abutter’s appeal of decision of a local planning board (board) to allow modification of a 1994 special permit to remove conditions that benefited the residential abutter in terms of visual and auditory impacts. We conclude that it was error for the judge to find that the plaintiff lacked standing to appeal from the board’s decision. We address only the merits argued in the plaintiff’s brief and conclude that the board’s decision granting a modified special permit removing the conditions must be reconsidered by the board. Background. a. Aiello’s property. The plaintiff, Roger Aiello, owns fifteen acres of residentially zoned property in Braintree, located directly north of the commercially zoned locus. Aiello’s property consists of a number of parcels; in addition to single and multifamily residential units, it contains a prior nonconforming catering business and a “semi-agricultural use,” a goat pasture. One of Aiello’s single-family residences is located within eleven feet of the locus’s northern boundary. Aiello’s property is at a higher elevation than the locus. The judge found that the Aiello property has a clear view of the structure on the locus and portions of the parking area. The farther away one stands from the boundary line, the more visible the locus becomes. The locus. The locus, now owned by RMT Braintree, LLC, and occupied by McCourt Construction,[3] contains approximately nine acres and is located in both the commercial and watershed protection districts.[4] The locus is long (approximately 2,000 feet), running from east to west, and narrow (approximately 200 feet). It currently is improved with a 675-foot-long commercial structure (sometimes referred to as building). Development of the rear, or […]