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Morningside Dr Birdcliff RdCopies to: Applicant City Engineer Assessors Bldg. Inspector Signed: November 22, 1996 Date NOTICE OF SUBDIVISIONWWWW1glaWWWW M O D I F I C A T I O N To: City Clerk, City of Northampton The Planning Board, on Oct. 24, 1996 by 6:0 vote MODIFIED ummyy903349yR the subdivision plan entitled: Name of Subdivision: Brookwood (Approved by the RnFfrd Aug 16, 1960) to delete wx street name(s): Birdcliff Road 1 Mylar 1 Mylar 1 Print 1 Print FORM F NORTHAMPTON, MASS. Submitted by: Edward Etheredge, Esq. for Cynthia Watson Address: 64 Gothic Street, Northampton, MA 0106C On (date) : September 20, 1996 , pending termination of the statutory twenty (20)day appeal period. Applicant Building Inspector Board of Public Works Fire Department Board of Health Chair, Northampton} P ann ng Board This vote of the Northampton Planning Board is duly recorded in the minutes of their meeting held on the above. date. Police Department Board of Assessors Register of Voters Conservation Commission File After twenty (20) days without notice of appeal, blueprints , if approved, will be transmitted to: Register of Voters Police Department Fire Department File endorsed 1 Print 1 Print I Print 1 Print Upon petition of Cynthia J. Watson, an interested person, the Northampton Planning Board, at its meeting on October? 4 , 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 2 4 , 1996 ORDER AMENDING SUBDIVISION PLAN Att By: APPROVED: Northampton Planning Board December 13, 1996 I, Christine Skorupski, Clerk of the City of Northampton hereby that the Notice of Subdivision Modification of this plan by the Board has be received and recorded at this office and no dice was received during the twenty days next -r such rece t and of said notice. istine Skor City Clerk City of Northampton certify Planning of . appeal recording HAMPSHIRE , SS. SUPERIOR COURT DEPARTMENT CIVIL NO.. COMMONWEALTH OF MASSACHUSETTS TRIAL COURT SUSAN F. O'NEILL and GEORGE A. HOLLAND, Plaintiffs, vs. PLANNING BOARD OF THE CITY OF NORTHAMPTON (consisting of the following individuals who are named herein solely in their official capacity as members of said planning board: Kenneth Jodrie, Jody Blatt, Andrew J. Crystal, Anne Romano, Daniel Yacuzzo, Nancy Duseau, Mark Nejame, and Paul Diemand), CITY OF NORTHAMPTON, and CYNTHIA J. WATSON Defendants, COMPLAINT 1. Plaintiffs Susan F. O'Neill and George A. Holland are natural persons who own the real property known as 11 Country Way in Northampton, Hampshire County, Massachusetts, as more particularly described in a deed dated March 12, 1992, from Cynthia J. Watson to George A. Holland and Susan F. O'Neill, recorded in Hampshire Registry of Deeds Registry at Book 3899, Page 199. 2. The following natural persons are named as defendants herein solely in their official capacity as they are (or were at all times material to the events alleged in this complaint) the Planning Board of the City of Northampton (all addresses are in Northampton, MA 01060): Kenneth Jodrie, 21 Fruit Street Jody Blatt, 30 Diamond Court Andrew J. Crystal, 51 Fairview Ave., Chairperson Anne Romano, 71 King St. Daniel Yacuzzo, 88 North Elm St., Vice Chairperson Nancy Duseau, Rockland Heights Mark NeJame, 47 High Street Paul Diemand, 153 Franklin Street (an associate member at the time of the events alleged in this complaint). Page 1 Page 2 3. Defendant City of Northampton is a municipal corporation duly organized and existing under the laws of the Commonwealth of Massachusetts. 4. Defendant Cynthia J. Watson is the successor to the original developer of Brookwood Subdivision, a Definitive Subdivision Plan recorded in the Hampshire County Registry of Deeds at Plan Book 56, Page 96 et seq.., entitled "Brookwood, a Subdivision in Northampton, Mass." stating "Planning Board, City of Northampton, Mass., PLAN APPROVED...August 16, 1960 ", pursuant to two deeds, both dated March 11, 1989,,from A. Lowell Watson to Cynthia J. Watson, recorded in the Hampshire County Registry of 'Deeds at Book 2696, Pages 235 and 236. 5. On or about November 22, 1996, there was filed with the Northampton City Clerk a document which purported to be a "Notice of Subdivision Modification" stating that it was in response to an application "Submitted by: Edward Etheredge, Esq. for Cynthia Watson ". 6. The land of plaintiffs Susan F. O'Neill and George A. Holland abuts Birdcliff Road, a private subdivision road shown on the Definitive Subdivision Plan recorded in the Hampshire County Registry of Deeds at Plan Book 56, Page 96 et seq.., entitled "Brookwood, a Subdivision in Northampton, Mass." stating "Planning Board, City of Northampton, Mass., PLAN APPROVED...August 16, 1960." 7. On or about September 20, 1996, Attorney Edward Etheredge submitted to the Northampton Planning Board a letter which purported to be a "petition on behalf of Cynthia J. Watson, owner of Property on North Farms Road, Northampton, for an amendment of the above - referenced subdivision plan by deleting the paper street `Birdcliff Road' from the approved subdivision plan." The "above- referenced subdivision plan" was listed in said letter as "Sub- division Plan 'Brookwood' by Hampshire American Homes, February, 1960, Hampshire County Registry of Deeds, Plan Book 56, Pages 96 -102. 8. Defendant Cynthia Watson did not sign any application for amendment of the Brookwood Subdivision Plan, and did not submit to defendant Northampton Planning Board any written evidence that Attorney Edward Etheredge (or anyone else on her behalf) was authorized to submit her "petition" of September 20, 1996. Without "written evidence" of authority to act for defendant Cynthia J. Watson as the landowner, Attorney Etheredge was not a proper Applicant as that term is defined in § 2:00 of the Rules and Regulations Governing the Subdivision of Land in the City of Northampton, Massachusetts. 9. Defendant Cynthia Watson in submitting her "petition" letter of September 20, 1996, to the Northampton Planning Board, did not do any of the following: (a) Failed to file notice of application with the Northampton City Clerk, as required by G.L. c. 41, § 81T and by the Rules and Regulations Governing the Subdivision of GE! VI P.PR 1 0 1997 Land in the City of Northampton, Massachusetts (hereafter "Northampton Subdivision Regulations ") § 6:02 "Submission ". (b) Failed to submit "A properly executed application (See Appendix A, Form C)" as required by the Northampton Subdivision Regulations, § 6.02.1. (c) Failed to comply with § 6.02.4 of the Northampton Subdivision Regulations, which states as follows: "The full submission shall consist of:... 4. List of abutters (See Appendix A, Form D). Name and mailing address of all abutters as they appear in the most recent tax list, including owners of land separated form the subdivision only by a street. The applicant shall obtain a certificate of the Board of Assessors that all abutters are listed." (d) Failed to submit to the Northampton Board of Assessors that agency's standard form to "request from the Board of Assessors, abutters lists for the property" which was the subject of his "petition to the Planning Board. 10. On or about October 24, 1996, defendant Planning Board of Northampton held what purported to be, according to the hearing notice, a "Public Hearing on a request from Edward D. Etheredge to modify the Brookwood Definitive Subdivision Plan by deleting Birdcliff Road, a paper street ..." 11. Defendant Planning Board of Northampton failed to provide abutters of Birdcliff Road with registered mail notice of its October 24, 1996, purported "public hearing ". 12. Defendant Planning Board of Northampton failed to comply with § 6:06.1 of the Northampton Subdivision Regulations, which state in relevant part as follows: "A copy of said notice shall be mailed by registered mail to the applicant and to all owners of land abutting upon the subdivision of [sic, probably should be "or "] separated from such land only by a street as appearing in the most recent tax list submitted by the applicant (see Form D)." 13. Plaintiffs Susan A. O'Neill and George F. Holland did not receive any mailed notice of the purported public- hearing held by defendant Planning Board of Northampton on or about October 24, 1996. 14. Plaintiffs Susan A. O'Neill and George F. Holland did not receive any actual notice of the purported public hearing held by defendant Planning Board of Northampton on or about October 24, 1996. 15. Plaintiffs Susan A. O'Neill and George F. Holland, through their attorney, learned of the purported amendment of the Brookwood Subdivision Plan, eliminating Birdcliff Road, only on March 21, 1997, when their attorney received from Attorney Edward Etheredge a letter dated March 20, 1997, which enclosed a copy of the purported notice of Page 3 that amendment. 16. Where, as here, a party received neither mailed nor any actual notice of a public hearing, the twenty -day appeal period provided by G.I. c. 41, § 81 BB begins to run at the earliest only on the date they receive such notice, in this case March 21, 1997, and expiring twenty days thereafter, on April 10, 1997 (the date on which this complaint is timely filed). 17. By reason of the failure of notice of public hearing, the Northampton Planning Board did not acquire jurisdiction over the purported "petition" submitted by defendant Cynthia Watson to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road. 18. By reason of the failure of mailed notice of public hearing, plaintiffs Susan A. O'Neill and George F. Holland were prejudiced by their resulting inability to attend the purported public hearing on October 24, 1996, to oppose the elimination of Birdcliff Road from the Brookwood Subdivision Plan. 19. Defendant Cynthia Watson, acting through Attorney Edward Etheredge, did appear at the October 24, 1996, purported public hearing held by the defendant Northampton Planning Board on October 24, 1996, and there presented legal argument supported by legal authority which persuaded the Planning Board to vote unanimously to vote to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road. 20. Defendant Planning Board of Northampton's purported modification of the Brookwood Subdivision Plan eliminating Birdcliff Road is invalid, a nullity, and of no force and effect whatsoever. FIRST CLAIM FOR RELIEF: SUBDIVISION APPEAL. G.L. c. 41. § 81 BB 21. Plaintiffs re- allege paragraphs 1 through 20 of this complaint as though fully set forth herein. -- 22. Plaintiffs are persons aggrieved by the actions of defendant Planning Board of Northampton, as alleged in this complaint. 23. The actions of defendant Planning Board of Northampton, as alleged in this complaint, exceeded the Planning Board's authority and should be annulled. WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff Page 4 c �F Road, and for such other and further relief as this court may deem just in for the costs of this action. SECOND CLAIM FOR RELIEF: ACTION IN THE NATURE OF MANDAMUS, G.L. c. 249. § 5 24. Plaintiffs re- allege paragraphs 1 through 23 of this complaint as though fully set forth herein. 25. That the defendant Planning Board of Northampton has failed and neglected its duty to provide plaintiffs with registered mail notice of any public hearing concerning amendment of the Brookwood Subdivision Plan by eliminating Birdcliff Road. 26. By reason of the failure of defendant Planning Board of Northampton to provide plaintiffs with registered mail notice of said public hearing, the plaintiffs were denied their constitutional and legal right to notice and opportunity to be heard in opposition to the elimination of Birdcliff Road from the Brookwood subdivision. WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road, for an order directing defendant Planning Board of Northampton to comply with all applicable notice requirements in any future hearing concerning amendment of Brookwood Subdivision Plan, and for such other and further relief as this court may deem just in the premises, and for the costs of this action. THIRD CLAIM FOR RELIEF: DECLARATORY JUDGMENT, G.L. c. 231A 27. Plaintiffs re- allege paragraphs 1 through 20 of this complaint as though fully set forth herein. 28. There exists between the parties an actual justiciable controversy within the jurisdiction of this court concerning the matters alleged in this Complaint. WHEREFORE, plaintiffs pray for a judgment annulling the decision of defendant Planning Board of Northampton to amend the Brookwood Subdivision Plan by eliminating Birdcliff Road, or for such other and further relief as this court may deem just in the premises, and for the costs of this action. Page 5 Dated April 10, 1997 Plaintiffs Susan F. O'Neill and George A. Holland, by their Attorneys, Green, Miles, Lipton, White and Fitz - Gibbon: usan L. Herzber , q Green, Miles, Lipton, White & Fitz - Gibbon 77 Pleasant St., P.O. Box 210 Northampton, MA 01061 (413) 586 -8218 BBO# 564455 Page 6 i Harry L. Iles, Esq. Green, iles, Lipton hite & Fitz - Gibbon 77 Pleasant St., P. V . Box 210 Northampton, MA 01061 (413) 586 -8218 BBO# 345800 EDWARD D. ETHEREDGE SHELLEY STEUER' • Also Admitted in New York and California Andrew J. Crystal, Chair Northampton Planning Board City Hall 210 Main Street Northampton, MA 01060 Etheredge & Steuer, P.C. ATTORNEYS AT LAW 64 GOTHIC STREET NORTHAMPTON, MASSACHUSETTS 01060 (413) 584-1600 Re: Petition of Cynthia J. Watson Modification of Sub - division Plan `Brookwood" by Hampshire American Homes, February, 1960 Hampshire County Registry of Deeds Plan Book 56, Pages 96 -102 September 20, 1996 FAX (413) 585 -8406 Dear Mr. Crystal: This is a petition on behalf of Cynthia J. Watson, owner of property on North Farms Road, Northampton, for an amendment of the above - referenced sub - division plan by deleting the paper street "BirdcliffRoad" from the approved subdivision plan. I enclose as part of this petition the following: 1. One large copy of the Plan and nine copies of the recorded subdivision plan showing "BirdcliffRoad ", Hampshire County Registry of Deeds, Plan Book 56, Pages 100 -101. 2. Nine copies of the assents of a. City of Northampton b. Stanley Rothman c. Thomas and Karen Larkin d. Edward and Patricia Wingfield 3. Nine copies of ANR Plan (G.L. c. 41, §81P) Plan Book 168, Page 102. 4. Nine copies of Patelle v. Planning Board of Woburn, 20 Mass. App. Ct. 279 (1985). 5. Proposed Order of Amendment. 6. List of all owners in the sub- division. 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 Birdcliff 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 81W 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 `Birdcliff 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. Andrew J. Crystal September 20, 1996 Page 3 EDE/kap Encs. Please schedule a hearing at the earliest date and advise me of the date of the hearing. cc: Cynthia J. Watson HAMS '.;YI.•I.^..1�k�;WS�R 1a 7_ IVIMS NWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, SS,JOL 29 8 28 tth SUPERIOR COURT DEPARTMENT CYNTHIA J. WATSON Plaintiffs v. THOMAS F. LARKIN, JR., et al Defendants STIPULATION AND ASSENT TO ENTRY OF JUDGMENT 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 C 1996 1( By: The Defendant Ci of North a pton teiu C.A. No. 95 -199 95 :.f33 Janet M. SI',N Shepard , Esq. City Solicitor City of Northampton 212 Main Street Northampton, MA 01060 RT 9;i14‘ i41 J . t COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, S JU L Z� 8 Za tit 'y SUPERIOR COURT DEPARTMENT CYNTHIA J. WATSON, v. Plaintiff THOMAS F. LARKIN, .JR., et al Defendants STIPULATION AND ASSENT TO ENTRY OF JUDGMENT C.A. No. 95 -199 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 HAMPSHIRE, SS. CYNTHIA J. WATSON, Plaintiff v. COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT THOMAS F. LARKIN, JR., et al Defendants STIPULATION AND ASSENT TO ENTRY OF JUDGMENT SUPERIOR COURT DEPARTMENT C.A. No. 95 -199 Defendants, THOMAS F. LARKIN, JR. and KAREN B. LARKIN stipulate: N dry 1 1. We, THOMAS F. LARKIN, JR. and 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, 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. 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. l aIC1 RT COMMONWEALTH OF MASSACHUSETTS DEPARTMENT _THE TRIAL COURT jut. 29 8 29 A >F i HAMPSHIRE, SS, SUPERIOR COURT DEPARTMENT CYNTHIA J. WATSON Plaintiff v. THOMAS F. LARKIN, JR., et al Defendants stipulate: C.A. No. 95 -199 .j STIPULATION AND ASSENT TO ENTRY OF JUDGMENT Defendants, EDWARD L. WINGFIELD and J. PATRICIA WINGFIELD 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.