Friday, June 15, 2007
Town settles longstanding Berry Corner Lane lawsuit
After an 11-year-long legal battle, the Carlisle Planning Board and other defendants have reached a settlement in the lawsuit brought by the brothers David Valchius and Michael Vale (formerly Valchius) regarding their request to subdivide land on Berry Corner Lane. The legal action was dropped when Lisa Mead of Blatman, Bobrowski and Mead, L.L.C., attorney for the plaintiffs, submitted a request for dismissal of Middlesex Land Court case 278437. Berry Corner Lane is located in the southwest part of town, off Berry Corner Road, which is off Heald Road.
Planning Administrator George Mansfield outlined the agreement and the history of the case. Once the brothers improve the quality of the road to meet the standards for common driveways, they will be allowed to submit an Approval Not Required (ANR) plan and request to build not more than one house on their Berry Corner Lane property. The settlement spells out how past and future engineering and road maintenance costs will be divided between the plaintiffs, road owners and abutters, including reimbursement of related engineering costs that were incurred by the Planning Board. All parties remain responsible for their own legal costs.
The legal dispute is tied to the unusual circumstances surrounding the creation of Berry Corner Lane. Mansfield explained that in 1968 the Planning Board approved the private road as part of a "small subdivision," which differed from a standard subdivision in two main ways: the roadway standards were less stringent and small subdivisions were limited to a maximum of five lots. In 1971, according to Mansfield, the Planning Board Rules and Regulations were revised and small subdivisions were no longer offered as a development option. Berry Corner Lane has remained a private way and is owned by deed by four of the six abutters, Mansfield said.
The Valchius brothers purchased the 13-acre property in 1983 and signed an agreement in 1996 with the five Berry Corner Lane homeowners for an easement to access their land from the private road. In 1996 the brothers came to the Planning Board with an ANR plan to create a sixth house lot on the lane, but the board would not endorse the plan, unless the road (which the brothers did not own) was improved. The applicants appealed to Land Court. The road's abutters were eventually included in litigation, as were new owners as the properties changed hands over the years.
Seeking to meet the Planning Board's demands, in 1999 the Valchius brothers filed a Notice of Intent (NOI) with the Conservation Commission for upgrading Berry Corner Lane. Since the lane is located in a 100-foot wetland buffer zone, the Commission has jurisdiction under the Wetland Protection Act.
ConsCom denied the request due to lack of sufficient detail on drainage issues and a lingering question as to the ownership status of the lane itself. (The commission is prohibited from considering an application without the written consent of the owner(s).)
The Valchuises appealed the decision to the state DEP, which overturned ConsCom's denial of the NOI. Upset at the DEP's action, four Berry Corner Lane residents filed a court request for an adjudicatory hearing, charging inadequacies in the proposed drainage system, failure to address the requirements of the state's Rivers Act, probable damage to trees that line the lane and lack of DEP authority to issue an order on property not owned by the applicants.
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. In 2001, the Valchuis brothers hired Nashoba Paving to resurface the lane without the agreement of the other owners, but apparently with a state Department of Public Works okay. The unhappy Berry Corner Lane neighbors, who strongly opposed 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.
Last year, one owner, Sami Nuwayser, who had purchased one of the houses from Richard and Judy Wells, was preparing to sell it and apparently decided the potholed lane was a barrier to that sale. So he hired Nashoba Paving to improve the condition of the lane without consulting his neighbors or seeking ConsCom approval. Since the the unapproved work was in clear violation of the Wetland Protection Act, the five joint owners were ordered by the Conservation Commission to file an ex post facto NOI.
Ensuring the lane
meets common drive standards
The specifics of the current agreement regarding the engineering work states: "The plaintiffs, owners and abutters agree that they will collectively and equally share in the expenses of paying the costs incurred by the Planning Board for engineering services, the initial $3,000 of which shall be ... placed in escrow by the Planning Board for the purpose of hiring the engineering firm of Land Tech Consultants, Inc...." The Planning Board engineer is responsible for reviewing the 2001 as-built road plan, inspecting the existing conditions and how they conform with the 2001 plan, and determining what changes to the road may be needed to meet common driveway standards.
If the road does not meet common drive specifications, the settlement stipulates that the engineering firm Stamski and McNary will revise the plan and estimate the cost of roadway changes. After any reconstruction, Stamski and McNary will submit an as-built plan to the Planning Board. Once the board gives final approval the balance of the escrow funds will be returned to landowners.
Lane limited to six houses
The plaintiffs and Berry Corner Lane landowners also agree that:
"a. no more than six lots, each lot with no more than one single family residence complying with local zoning requirements, may have access on the Lane;
b. Plaintiffs' lot shown on the ANR Plan to be endorsed by the Planning Board pursuant to this Agreement consitutes such sixth lot;"
c. These provisions are to "run with such properties in perpetuity."
The settlement includes Planning Board approval of a separate Maintenance, Utilities and Easement Agreement reached between the plaintiffs and other landowners.
© 2007 The