CORINNE SAPAH-GULIAN v. STEPHEN R. LOMANNO, TRUSTEE OF THE 44 NAUSHON CIRCLE REALTY TRUST, DARRELL MACLEAN, and LISA M. MACLEAN

Plaintiff Corinne Sapah-Gulian filed her unverified Complaint on January 29, 2007, seeking this court’s interpretation of a view easement pursuant to G. L. c. 185, § 1(k). Defendants filed their Answer on April 6, 2007. A case management conference was held on April 10, 2007. Plaintiff filed her Motion for Summary Judgment on May 1, 2008, together with supporting memorandum, Appendix, and Affidavits of Corinne Sapah-Gulian, Randolph Sapah-Gulian and J. E. Landers-Cauley (“Landers-Cauley”). On the same day Defendants filed their Motion for Summary Judgment, together with supporting memorandum, Statement of Material Facts, Appendix, and Affidavit of Darrell W. MacLean. On June 2, 2008, Plaintiff filed her Opposition, Affidavits of Randolph Sapah-Gulian (second), Corinne Sapah-Gulian (second), and Michael J. Markoff, Esq., and Supplemental Appendix. On the same day Defendants filed their Opposition and Motion to Strike certain affidavits filed by Plaintiff. Defendants filed their Reply to Plaintiff’s Opposition on June 16, 2008, and Plaintiff filed a Reply to Defendants’ Opposition on June 20, 2008, together with her Opposition to Motion to Strike. A hearing was held on all motions on June 30, 2008, at which time all motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. Plaintiff owns registered property located at Lot 148, Naushon South, Falmouth, MA (“Plaintiff Property”), as shown on Registration Plan 11683B (the “Registration Plan”). Plaintiff Property contains a single-family residence.

2. Defendant Stephan R. Lomanno, Trustee of the 44 Naushon Circle Realty Trust (the “Naushon Trust”), is the owner of registered land located at Lot 149, Naushon South, Falmouth, MA (“Defendant Property”), as shown on the Registration Plan. Defendant Lisa M. MacLean (“MacLean”) is the sole beneficiary of the Naushon Trust. Defendant Darrell MacLean (together with the Naushon Trust and MacLean, “Defendants”) is the husband of MacLean. Defendant Property contains a single-family residence.

3. Stephen M. Good and Thomas M. Good, Jr., Trustees of TANDS Realty Trust III (the “Good Trust”) formerly owned Plaintiff Property and Defendant Property, both undeveloped parcels of land. The Good Trust conveyed Plaintiff Property to Randolph Sapah-Gulian (“Randolph”) by deed dated January 28, 1999. Randolph conveyed Plaintiff Property to Plaintiff by deed dated August 10, 2001. The Good Trust conveyed Defendant Property to Good Builders, Inc. by deed dated March 24, 2000. Good Builders, Inc. conveyed Defendant Property to Gaetana A. Volpini, Trustee, by deed dated March 24, 2000. Gaetana A. Volpini, Trustee, conveyed Defendant Property to the Naushon Trust by deed dated March 19, 2004.

4. Plaintiff Property direct abuts, and is located to the northeast of, Defendant Property. Both Plaintiff Property and Defendant Property are located near (but not directly adjacent to) Buzzards Bay. 5. An Easement Deed (“View Easement C”) dated January 28, 1999, was conveyed by the Good Trust to Randolph for the benefit of Plaintiff Property. View Easement C stated as follows:

A view easement over that portion of Lot 149 marked “View Easement C” as shown on a plan entitled “Easement Plan located in Falmouth - Mass. prepared for Lots 148 & 149 Naushon Circle, Date: January 28, 1999, Scale: 1' [sic]=50'”, prepared by Ferreira Associates, Falmouth, MA [the “1999 Plan”], said plan recorded herewith. There shall be no structures except a first floor deck which cannot be enclosed, cannot have a roof or covering of any kind, and shall not extend into the area more than 15 feet. Any plantings or natural growth (e.g. trees, shrubs, etc.) shall be no higher than 8 feet above the ground.

. . . .

The owner of Lot 148 is hereby granted the right to maintain the height of any plantings or natural growth in the View Easement Area C and may enter upon Lot 149 for maintenance purposes. Any work shall be by a professional arborist at the expense of the owner of Lot 148.

The easements created hereby are perpetual easements appurtenant to Lot 148 and run with said Lot 148. These easements are easements and not restrictions.

6. Beginning in late 2005, through 2006, MacLean arranged for the following to be built on Defendant Property within View Easement C: a five-foot high stone retaining wall (the “Wall”), [Note 1] a swimming pool and surrounding concrete paving block apron (the “Pool”), [Note 2] and a four to five-foot high metal security fence surrounding the Pool (the “Fence”). [Note 3] This construction resulted in the removal of portions of vegetation on Defendant Property.

7. Lots 102 and 103 as shown on the Registration Plan, owned by Mr. and Mrs. Mark Abrams (the “Abrams Property”), contain a swimming pool. Lots 102 and 103 are located to the south of Defendant Property, across the street (Naushon Circle), and lies between Defendant Property and the ocean.

****************************

Motion to Strike.

Before discussing the merits of the parties’ respective summary judgment motions, this court must first address Defendants’ Motion to Strike portions of Affidavits of Plaintiff (first), Randolph (first), and Landers-Cauley. [Note 4]

Defendants base their Motion to Strike (with respect to Plaintiff and Randolph) on the following grounds: lack of personal knowledge or proper foundation, irrelevance, inadmissible parol evidence or legal conclusions, and hearsay. Defendants Motion to Strike (with respect to Landers-Cauley, Plaintiff’s expert) is based on a failure of Landers-Cauley to provide statements of fact or relevant conclusions, as well as a failure to authenticate “Exhibit B” (a preliminary site plan), which Defendants claim was not attached to Landers-Cauley’s Affidavit.

With respect to the Affidavits of Plaintiff and Randolph, most of the contested portions of the Affidavits are not relevant to the issues in this case. This court must interpret the language of View Easement C, and will not rely on interpretations by the parties as to its meaning. The portions of the Affidavits which give Plaintiff and Randolph’s interpretation of, and feelings about, View Easement C are irrelevant. The portions of the Affidavits dealing with the purchase and sale agreement for Plaintiff Property are also irrelevant, as View Easement C speaks for itself and the terms of the purchase and sale agreement are subsumed in the document. As a result, the contested portions of these two Affidavits, except for paragraphs 1 and 12 of Randolph’s affidavit (which this court views as relevant and not otherwise proscribed), are stricken. Regarding the Affidavit of Landers-Cauley, however, such affidavit shall not be stricken as the plans attached were prepared by the affiant, a licensed engineer, the plans are relevant to the issues in this case, and a copy of Exhibit B was hand-delivered to Defendants by counsel for Plaintiff after such omission was realized.

As such, Defendants’ Motion to Strike is ALLOWED IN PART, as follows: ¶¶ 3 and 5 of Plaintiff’s (first) Affidavit are stricken; and ¶¶ 3, 4, 5, 6, 7, 8, 9, and 14 (first and portions of the second as identified in Defendants’ Motion to Strike), as well as portions of ¶¶ 10 and 11 of Randolph’s (first) Affidavit as identified in Defendants’ Motion to Strike are stricken. The Affidavit of Landers-Cauley is not stricken.

“Structures” Within View Easement C.

Plaintiff argues that the Pool, the Wall, and the Fence are all interrelated with respect to pool use and that they violate View Easement C as prohibited “structures.” As a remedy for these violations, Plaintiff asks this court for injunctive relief requiring Defendants to remove such structures. Defendants argue that the Wall, the Fence, and the Pool are not structures in context of View Easement C.

Defendants cite Patterson v. Paul, 448 Mass. 658 , 662 (2007), in support of the general policy that restrictions on land are disfavored. View Easement C, however, states that it is an easement and not a restriction. Moreover, Patterson actually supports Plaintiff’s view of the case at bar. In Patterson, the Supreme Judicial Court (“SJC”) stated that the view at the time of the creation of the easement was the view that was protected, stating “the easements were intended to prevent the continual growth of vegetation that would, overtime, gradually block the views that had existed in 1999, just as the construction of any structure in the view easement area would have a similar effect.” Id. at 666. In both Patterson and the case at bar, the view at the time of the creation of the easement contained no construction at all; in Patterson, there was never any construction, and here Defendants have subsequently constructed the Pool, the Wall, and the Fence in View Easement C.

Defendants also cite M. P. M. Builders, LLC v. Dwyer, 442 Mass. 87 , 92 (2004), to confirm that an easement is a limited nonpossessory interest in real estate which does not prohibit the servient estate owner from other uses of his property. With this general statement of law, this court agrees. View Easement C, however, imposes specific requirements upon Defendants and such conditions must be followed. View Easement C clearly states that there shall be no structures except a deck. Moreover, View Easement C allows a deck only if it does not intrude more than fifteen feet. [Note 5]

In conferring rights in Plaintiff Property over Defendant Property, View Easement C specifically states that “[t]here shall be no structures except a first floor deck” built in the easement area. The document is unambiguous in that the only structure allowed would be a first-floor deck with no walls or roof and in a fixed location no more than fifteen feet from the boundary lines, as shown on the 1999 Plan. As View Easement C fails to provide a definition of the term “structure,” both parties suggest their own definition of the term. [Note 6], [Note 7] Defendants cite Article III, Section 240-13 (Terms Defined) of the Falmouth Zoning By-laws (the “By-laws”), which defines “structure” as

[a]nything constructed or erected, the use of which requires a fixed location on the ground or attachment to something located on the ground, including tennis courts and swimming pools if more than 24 inches deep or 250 square feet in area or gas or liquid storage tanks if principally aboveground, but not including retaining walls or fences. [Note 8]

The parties cannot agree on the interpretation of this definition, as it is unclear whether the phrase “if principally aboveground” modifies only “gas or liquid storage tanks” or “tennis courts and swimming pools” as well. Defendants argue that the phrase “if principally aboveground” applies to all items in the sentence, including above-ground swimming pools. Plaintiff reasons that the phrase applies only to the storage tanks. The most logical reading is that such phrase modifies only storage tanks as tennis courts are not constructed or erected underground. Moreover, the sentence structure reinforces this reading, as the modifying clause “if principally underground” is located next to “tanks” and apart from “pools,” and “pools” is already modified by the clause “if more than 24 inches deep or 250 square feet in area.” As such, this court concludes that the By-laws definition of a “structure” includes the Pool, as the Pool is more than two feet deep, [Note 9] but does not include, in general, “retaining walls or fences.”

Plaintiff first looks to BLACK’S LAW DICTIONARY 1276 (5th ed. 1979) for the definition of a “structure.” Such entry states:

[1] Any construction, or any production or piece of work artificially up or composed of parts joined together in some definite manner. That which is built or constructed; an edifice or building of any kind. [2] A combination of materials to form a construction for occupancy, use or ornamentation, whether installed on, above, or below the surface of a parcel of land.

Plaintiff argues that the Pool, the Fence, and the Wall meet all of the dictionary’s definitions of a “structure,” since such items were all constructed and are a combination of materials for use. The dictionary definition, however, is more generalized than the By-laws’ definition, which is more applicable to structures in Falmouth.

Plaintiff also cites Scott v. Board of Appeal of Wellesley, 356 Mass. 159 (1969), relative to her argument that the Pool is a structure. In Scott, the SJC held that a swimming pool was a structure for purposes of set-back requirements under the local by-law. Id. at 162. [Note 10] The SJC noted that “[a]nything ‘constructed or built’ . . . is a structure but whether a particular thing constructed is within the meaning of the word as used in a statute, regulation, or contract depends upon the context.” Id. at 161. [Note 11] Particularly relevant to the case at bar, however, is the SJC’s general description of the swimming pool, as a “large permanent installation constructed of wood, steel, stone and earth, with a plastic liner. Although mostly below ground level there is, because of it, a material occupation of a substantial area above ground.” [Note 12] As in the case of Scott, the Pool is shown through photographs in evidence as primarily underground but taking up a large area of ground space. There is a strong argument that the Pool (including the concrete apron) is a structure in context of View Easement C, as a “large permanent installation” that occupies a substantial area. The By-laws, Black’s Law Dictionary, and case law are all consistent in leading this court to conclude that the Pool is a structure under the given facts. As a result of the foregoing, I find that the Pool is an impermissible “structure” within the meaning of View Easement C.

The question remains, however, whether the Wall or the Fence violate View Easement C as impermissible structures. Even though the Wall and the Fence, by themselves, may not be structures under the By-laws, they are necessary accessories directly related to the Pool. In Scott, the SJC reiterated that whether construction results in a structure pursuant to a particular statute, regulation, or contract depends upon the facts of that particular case. Scott, 356 Mass. at 161. In the case at bar, the Wall supports, and was required for, the construction of the Pool, and the Fence surrounds and provides protection for the Pool. The Wall was installed as part of the installation of the Pool, and the Fence was required pursuant to the Town of Falmouth permit that allowed the Pool. Furthermore, View Easement C is clear that the only allowed structure, the deck, “shall not extend into the area more than 15 feet.” Despite this language, the Pool, the Wall, and the Fence all extend into the portion of Defendant Property subject to View Easement C significantly more than fifteen feet. As such, I find that the Wall and the Fence are impermissible “structures” in context of View Easement C.

Scope of View Easement C.

Plaintiff argues that she should be able to control not only the height of vegetation on Defendant Property, but also the variety of vegetation and whether it can exist at all. [Note 13] With respect to the scope of View Easement C, in terms of the degree to which Plaintiff may control vegetation upon Defendant Property, Plaintiff argues that the intent of View Easement C was to protect both Plaintiff’s view of Defendant Property as well as the view of the ocean. Defendants assert that View Easement C protects Plaintiff’s view “over” that portion of Defendant Property shown on the 1999 Plan and does not give Plaintiff any rights to dictate Defendant Property’s vegetation outside those rights expressly allowed in View Easement C.

Although View Easement C does not specifically mention the ocean, the clear intent of the document is to protect the view from Plaintiff Property “over” Defendant Property in the direction of the nearby ocean. [Note 14] Both Plaintiff Property and Defendant Property have views of the ocean, and it is common knowledge that a view of the water is of primary concern to properties which are located on or near the ocean. See Kline v. Shearwater Ass’n, Inc., 63 Mass. App. Ct. 825 , 837 (2005) (“Common sense dictates, however, that a substantial reason for property owners to acquire land on the Cape Cod coast is to have an ocean view . . . .”). All of View Easement C’s references to the vegetation on Defendant Property is focused on the height of the vegetation, not the variety of vegetation. Furthermore, View Easement C refers to “any” plantings or natural growth, which in no way imposes a certain variety or amount of vegetation. In light of the above, this court concludes that View Easement C protects the view from Plaintiff Property to something beyond Defendant Property.

In light of the above, Plaintiff’s argument that the removal of vegetation in View Easement C is a violation of the easement is unpersuasive. Nothing in View Easement C prohibits Defendants from removing vegetation; rather, the intent is to keep the vegetation from obstructing Plaintiff’s view. Thus, I find that View Easement C does not confer upon the owner of Plaintiff Property the right to demand the existence of, variety, or height (below eight feet) of vegetation on Defendant Property.

Remedy.

In light of this court’s previous findings that the Pool, the Fence, and the Wall are “structures” in violation of View Easement C, I find that Defendants, at their own expense, shall remove the Pool, the Fence, and the Wall no later than April 30, 2010. [Note 15]

As a result of the foregoing, I ALLOW IN PART Plaintiff’s Motion for Summary Judgment and DENY IN PART Defendants’ Motion for Summary Judgment, as this court finds for Plaintiff with respect to the Pool, the Wall, and the Fence being structures under View Easement C, and finds for Defendants with respect to the existence and variety of Defendant Property’s vegetation as not being protected by View Easement C.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: October 23, 2009