Friday, February 8, 2002
Planning board denies new Valchuis lot plan Litigation continues over proposed sixth house lot on Berry Corner Lane
The planning board unanimously denied endorsement of the plan for the much-disputed one-house lot on the private Berry Corner Lane on January 14. Member Kate Reid stated the board would "not endorse a plan that would allow a sixth lot in a five lot subdivision."
Six years of litigation
The lot has been the subject of six years of litigation filed by the landowners Michael Vale (formerly Michael Valchuis) and David Valchuis against the town. In 1996 the board denied endorsement of a similar plan, citing inadequacy of access on the private road which did not meet current town standards. The landowners are still appealing that decision in court. Since then the planning board has stated that approval of the lot plan is contingent on improvements to the roadway and a common maintenance plan signed by all six Berry Corner Lane residents.
This past fall the roadway drainage and surface was improved by the landowners. However, their Berry Corner Lane neighbors, who strongly oppose a sixth house crowding their five-lot development, allegedly refused to sign a common maintenance agreement. While the abutters granted access to the Valchuises, they are in fact not obligated to sign any maintenance agreement.
New ANR plan submitted
The current lot plan technically an ANR plan was submitted on January 4. The board is required to act within 21 days, and failure to act within this time period constitutes a statutory endorsement.
Speaking to Richard Dacy, the new attorney for the landowners, board chairman Michael Abend said, "The feeling I get is that you've jumped the gun by requesting us to sign this [the ANR Plan] without any agreement [to settle the suit] tied to it." The planning board had expected that the litigation would be settled before any new plan would be submitted.
Can the suit be settled?
Dacy stated that he reviewed the different terms of settlement and that the parties were "not that far apart." "I'm here to present an ANR which is a condition for the Agreement to Judgment (the agreement to settle the litigation)," he said. "The purpose is to bring the matter to a head."
The planning board had received a draft of the Agreement to Judgment on December 14, 2001. Member Michael Epstein said that the "board hadn't agreed to the Agreement to Judgment." Dacy countered that it [the Agreement] was "not so complicated that you could not digest it and let us know if we are on the right track."
Epstein fired back, "There is a great deal of history and it is fairly unreasonable to present this [ANR plan]. The underlying issue is a maintenance agreement. I question the Valchuis' right to maintain the road in the condition they improved it to. Under what right do they have to maintain it? Read narrowly their agreement is an access agreement. We always wanted a common maintenance agreement."
Dacy pointed out, "ANR plans typically do not have maintenance agreements because there is no statutory requirement." He stated that town counsel had reached this same point.
Dacy was referring to laws that allow a landowner to change lots in a previously approved subdivision plan (through MGL Chapter 41, Section 81O) by submitting an ANR plan. Berry Corner Lane is a previously approved subdivision under the subdivision control law. The sole question for a planning board when reviewing a request to endorse an ANR is whether the plan shows adequate frontage on a subdivision roadway, or a roadway in existence prior to the Zoning Act, and whether practical access is assured. In fact, the board cannot consider zoning or maintenance agreements.
When asked about the board's statutory authority to require a maintenance agreement, Epstein simply said that the common maintenance agreement "is the [board's requirement for] settlement."
Commenting after the vote Dacy said, "The roadway has been there thirty years and is not going to materially change with the addition of one house."
Costs of Litigation
The dispute over the Berry Corner Lane sixth lot has involved two town boards and town counsel. Legal costs to date total $37, 093, of which $6,671 was incurred by the conservation commission and $30,422 by the planning board. And the matter has yet to be resolved.
© 2002 The Carlisle Mosquito