DOLORES FAZIO and JOSEPH FAZIO vs. TRUSTEES OF THE RIVER HOUSE CONDOMINIUM TRUST

Plaintiffs Dolores Fazio and Joseph Fazio (together, “Plaintiffs”) filed their Verified Complaint on August 27, 2010, alleging that the planting of eleven pine trees (the “Trees”) by the Trustees of the River House Condominium Trust (“Defendants”) violated Plaintiffs’ property rights and constituted waste as well as a nuisance. Plaintiffs’ complaint seeks a court order for the removal of the Trees [Note 1] and an assessment of damages against Defendants for the maintenance of the nuisance. [Note 2] On the same day, Plaintiffs also filed a Motion for Preliminary Injunction, together with supporting memorandum, seeking to require Defendants to maintain the Trees so that they would not grow taller or wider. Defendants filed their Opposition, together with Affidavits of Carol Lundquist, Trustee, and Kendra Kinshcerf, Esq. on September 20, 2010. A hearing was held on the Motion for Preliminary Injunction on September 21, 2010, and on September 30, 2010 this court issued an Order Denying Plaintiffs’ Motion for Preliminary Injunction.

On September 30, 2010, Defendants filed their Answer and Counterclaim, seeking a declaratory judgment that Defendants, when they planted the Trees, acted within their authority to replace landscaping in the condominium common areas without unit owners’ approval, and seeking a judgment against Plaintiffs for costs and attorney’s fees. Plaintiffs filed their Answer-in-Counterclaim on October 18, 2010.

On December 14, 2010, Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Plaintiffs’ Statement of Material Facts, Plaintiff Affidavit 1 (“Affidavit 1”), [Note 3] Plaintiff Affidavit 2 (“Affidavit 2”), [Note 4] and Affidavit of David A. Wylie, Esq. On December 15, 2010 Defendants filed their Motion for Summary Judgment, together with supporting memorandum and Affidavit of Kendra Kinscherf, Esq. [Note 5]

Plaintiffs filed their Amendment to Motion for Summary Judgment, together with supporting memorandum, Plaintiffs’ Supplemental Statement of Material Facts and Joseph Fazio Supplemental Affidavit (“Supplemental Affidavit”), on May 2, 2011. On June 2, 2011, Plaintiffs filed their Opposition to Defendants’ Motion for Summary Judgment. Also on June 2, 2011, Defendants filed their Responses to Plaintiffs’ Statement of Material Facts and Supplemental Statement of Material Facts, Defendants’ Motion to Strike Plaintiffs’ Affidavits, and Memorandum Opposing Plaintiffs’ Motion and Further Supporting Their Own Motion for Summary Judgment, together with Affidavit of Kendra Kinscherf, Esq. Defendants filed their Reply Brief on June 10, 2011. Also on June 10, 2011, Plaintiffs filed their Motion to Admit Supplemental Affidavits, Opposition to Defendants’ Motion to Strike Plaintiffs’ Affidavits, and Reply Brief. Defendants filed their Opposition to Plaintiffs’ Motion to Admit Supplemental Affidavits on June 15, 2011. On June 20, 2011 a hearing on all motions was held, and at that time the matter was 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). I find the following material facts are not in dispute:

1. River House Condominium (the “Condominium”) contains 220 residential units and is located between Pinckney Street and Storrow Drive in Boston. The Condominium was created on October 26, 1982 by Master Deed recorded with the Suffolk County Registry of Deeds (the “Registry”) in Book 10104, Page 64. The Condominium’s Master Deed was amended and restated in its entirety on March 3, 1983, and amended again on November 6, 1987 (as amended, the “Master Deed”). [Note 6]

2. The Condominium Trust is the organization of unit owners, established for the Condominium by the Amended and Restated Declaration of Trust of River House Condominium Trust, recorded on March 3, 1983 at the Registry in Book 10245, Page 68. The Declaration of Trust was amended on November 6, 1987, November 15, 1990, June 11, 1992, and July 18, 2005 (as amended, the “Trust”).

3. The Condominium is subject to Massachusetts General Laws, Chapter 183A, and is managed and regulated by the Trustees of the Trust (the “Trustees”; also, the Defendants), who have enacted by-laws (the “By-Laws”) set forth in the Trust as well as rules and regulations.

4. By deed dated July 31, 2007 and recorded in the Registry in Book 42366, Page 197 (the “Fazio Deed”), Marsha A. Holloran conveyed to Plaintiffs Unit Number 125 of the Condominium (the “Unit”). [Note 7] The Fazio Deed states in part:

The unit is conveyed with the benefit of and subject to (a) the provisions of Massachusetts General Laws, Chapter 183A, as the same may now or hereinafter be amended, and (b) the Master Deed and any amendments thereto, and all matters of record stated or referred to therein, as completely as if each were fully set forth herein, (c) the terms and conditions of the River House Condominium Trust, and by-laws contained therein and any rules and regulations promulgated pursuant thereto.

The Unit is conveyed together with and subject to all easements, obligations, restrictions, rights or liabilities as set forth in the Declaration of Trust of the River House Building Trust and the Master Deed, as amended.

5. As owners of the Unit, Plaintiffs hold a 0.32834 percent interest in the Condominium's common areas and facilities.

6. Plaintiffs do not hold a view easement over the Condominium's common areas.

7. Section 2.2 of the Trust states, “It is hereby expressly declared that ... the Unit Owners are beneficiaries of the Trust ... with only such rights as are conferred upon them as such beneficiaries hereunder and under and pursuant to the provisions of said Chapter 183A.”

8. The Master Deed states, “Each Unit Owner may use the common areas and facilities in accordance with their intended purpose [Note 8] subject to the terms and provisions of the Master Deed, the Condominium Trust, the By-Laws and the Rules and Regulations.” The “yards, lawns, gardens, walkways and the improvements thereon and thereof, including walls, fences, bulkheads, railings, steps, lighting fixtures and planters” are specified as common areas in the Master Deed.

9. Section 5.1 of the Trust [Note 9] outlines the powers of the Trustees, and states in part:

The Trustees shall, subject to and in accordance with all applicable provisions of said Chapter 183A, have the absolute control and management of the Trust Property (which term as herein used insofar as applicable shall be deemed to include any expenses of the Condominium, any assets or other items purchased by the Trustees or delivered to them as Trustee and any and all other property, real or personal, and tangible or intangible, held by the Trustees in connection with the Condominium and the right to control and manage common areas and facilities of the Condominium) as if they were the absolute owners thereof, free from the control of the Unit Owners (except as limited in this Declaration of Trust) and, without by the following enumeration limiting the generality of the foregoing or of any item in the enumeration, the Trustees shall have full power and uncontrolled discretion, subject only to the limitations and conditions herein and in the provisions of said Chapter 183A, at any time and from time to time and without the necessity of applying to any court or to the Unit Owners for leave so to do: …

(xiii) To operate, care for, maintain, repair and replace the common areas and facilities of the Condominium; ... and

(xv) Generally, in all matters not herein otherwise specified, to do each and every thing necessary, suitable, convenient or proper for the accomplishment of any of the purposes of the Trust or the Master Deed or incidental to the powers herein or in said Chapter 183A ... .”

10. Section 5.3 of the Trust, entitled “Maintenance, Repair and Replacement of Common Areas and Facilities and Assessment of Common Expenses Thereof” provides that the “Trustees shall be responsible for the proper maintenance, repair and replacement of the common areas and facilities of the Condominium ... .”

11. One of the Condominium's common areas is a garden that abuts Storrow Drive (the “Garden”), which the Unit, along with numerous other Condominium units, overlooks. The Unit also has a view of Storrow Drive and the Charles River beyond the Garden.

12. In the summer of 2009, the Trustees removed four ash trees in the Garden, and planted the Trees in the Garden. In August of 2009, the Trustees sent a notice to Condominium unit owners, entitled “REPORT ON RECENT STORROW DRIVE GARDEN WORK,” (the “2009 Report”) which states, in relevant part,

[W]e recently finished the maintenance and repair work on the Storrow Drive Garden. Four declining Ash trees were removed. Currier Landscaping had recommended their removal because they were no longer sound. … Evergreens were chosen for their resistance to urban pollution, partial shade tolerance and density, serving to visually block Storrow Drive especially for the lower floors, as well as buffer the noise from the heavily traveled road. They also serve to privatize the area somewhat; as many people walk by that garden; and the less they can peer into windows, the better, from a security standpoint. Because they are evergreen, this will be a year round function.

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Plaintiffs' Motion to Admit Supplemental Affidavits [Note 10] and Defendants' Motion to Strike Plaintiffs' Affidavits [Note 11] must first be addressed. Affidavits in support of or in opposition to a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Mass. R. Civ. P. 56(e). In addition, “sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto and served therewith.” Id. Defendants oppose Plaintiffs’ Motion to Admit Supplemental Affidavits, arguing that the supplemental affidavits contain inadmissible speculation, statements of opinion, inaccurate and incomplete summaries of documents, and hearsay. Plaintiffs’ proposed supplemental affidavits discuss and characterize the statements, intentions and knowledge of several third parties, including the Condominium’s designers, Boston zoning officials, and environmental experts. As such, this court agrees that Plaintiffs’ proposed supplemental affidavits are comprised of opinions, speculation, and hearsay, all of which are inadmissible. Moreover, the contents of these affidavits are largely irrelevant to the legal issues of the case, as discussion below will demonstrate. [Note 12] For these reasons, Plaintiffs' Motion to Admit Supplemental Affidavits is DENIED.

Defendants have also moved to strike the Fazio Affidavits, arguing that they violate Mass. R. Civ. P. 56(e) because they contain hearsay, speculation, legal argument, inaccurate summaries of documents, and opinion statements that require expert testimony and for which Plaintiff-affiants are not competent to testify. Defendants also object to several of the exhibits submitted with the Fazio Affidavits, and the portions of the Fazio Affidavits which rely upon such exhibits, as the Fazio Affidavits and the exhibits do not certify that these documents are true and accurate copies. Plaintiffs counter-argue that Plaintiffs' occupation and training as architects qualify Plaintiffs to testify about building designs, structures, and construction costs, as well as corollary matters of traffic conditions, noise, views, and horticultural and environmental studies. Furthermore Plaintiffs contend that the Fazio Affidavits merely organize and do not inaccurately characterize any documents. [Note 13]

The Fazio Affidavits contain testimony about Defendants’ communications and conduct with other Condominium unit owners regarding landscaping, [Note 14] Defendants' intentions and preparations for planting the Trees, [Note 15] traffic trends, [Note 16] the characteristics and utility of the Trees, and the design of the Condominium. [Note 17] Statements of this nature rely upon speculation, opinion, belief, and hearsay, rather than Plaintiffs' personal knowledge, as is required by Mass. R. Civ. P. 56(e). Most of the exhibits attached to the Fazio Affidavits also rely on hearsay or are not provided with any explanation for their basis and the Plaintiff-affiants have not certified or sworn that they are true and accurate. In addition, the majority of the Fazio Affidavits deal with matters that are largely irrelevant to the legal issues of the case. Accordingly, Defendants' Motion to Strike Plaintiffs' Affidavits is ALLOWED. [Note 18]

Turning now to the parties’ motions for summary judgment, Plaintiffs argue that Plaintiffs are entitled to summary judgment because Defendants unreasonably violated Plaintiffs' property rights by planting the Trees and thereby obstructing Plaintiffs' valuable view. Plaintiffs contend that, as owners of the Unit, Plaintiffs inherently hold a property right to the Unit's view of the Charles River. As such, Plaintiffs argue that, although Defendants have the authority to maintain the common areas, Defendants may not alter the common areas in a way that obstructs Plaintiffs' view of the Charles River without Plaintiffs' consent. Furthermore, Plaintiffs assert that, even if Plaintiffs did not have a property right to the Unit's view, Defendants' planting of the Trees constituted an improvement to the common area, which requires unit owners' approval, as opposed to basic maintenance, which does not require unit owners' approval.

Defendants contend that not only is summary judgment for Plaintiffs inappropriate, but that summary judgment for Defendants is warranted because Massachusetts law does not recognize a property right to a view absent an express easement or restrictive covenant. In addition, Defendants argue that, pursuant to both G. L. c. 183A and the By-Laws, Defendants acted within their vested authority over the Condominium's common areas when Defendants planted the Trees in the Garden, and were not required to seek Plaintiffs' or any other unit owner's consent to plant the Trees. As such, Defendants argue, Defendants did not violate Plaintiffs’ property rights, act wastefully, or maintain a nuisance. Defendants also argue that this court does not have subject matter jurisdiction over the tort of nuisance, and therefore Plaintiffs' nuisance claim should be dismissed.

As a preliminary matter, it is worth noting that Plaintiffs’ claims are speculative, as the Trees in their current state are not obstructing Plaintiffs' view of the Charles River from the Unit. [Note 19] Plaintiffs themselves concede that Plaintiffs' objection stems from the blockage of Plaintiffs' view that will occur as the Trees continue to grow in the future. However, both Plaintiffs and Defendants request that this court address the legal rights involved in this case rather than dismiss Plaintiffs' claims due to their speculative nature, only to have to deal with the matter in a few years once the Trees have grown. [Note 20] Because it is evident that the Trees will grow to a height and width that will obstruct Plaintiffs' view of the Charles River at least in part, this court agrees and, accordingly, will address the merits of the case as if the Trees already pose an obstruction to Plaintiffs' view.

Plaintiffs' Legal Right to the Unit's View.

Plaintiffs' claims hinge on whether Plaintiffs’ view of the Charles River from the Unit is a legally protected right inherent to Plaintiffs' ownership of the Unit. Plaintiffs argue that “view protection is well established as a real estate owner's right so long as it does not necessitate an easement over another's property.” However, neither the Trust, the Master Deed, nor the Fazio Deed grant a view easement or provide legal protection to Plaintiffs’ view of the Charles River. Furthermore, without more, view rights are generally not protected by statute, regulation or case law.

A. Case Law Does Not Protect View as a Property Right.

As discussed, supra, Plaintiffs have no grant of a view easement. Plaintiffs, however, cite to a number of cases to support the assertion that property owners hold a protected right to a view. Upon examination, however, these cases do not lead this court to conclude that property rights in Massachusetts incorporate the right to a view. Notably, none of the cases cited by Plaintiffs deal directly with a property owner’s view as a protected property right. More importantly, none of Plaintiffs’ cited cases support the contention that property owners hold an inherent right to a view in Massachusetts.

Plaintiffs attempt to use trespass cases, including Glavin v. Eckman, 71 Mass. Apt. Ct. 313 (2008) [Note 21] and Xifaras v. Andrade, 59 Mass. App. Ct. 789 (2003) [Note 22] to establish a property right to a view. Not only are the facts of Glavin so distinct as to render its relevance to Plaintiffs' claims questionable, but the analysis of the court in Glavin supports the conclusion that a court can consider a party's desire for a certain view as one factor in opting for restoration damages, not that there is a firm right to a view as a property owner. Notably, in Xifaras the defendant violated explicit restrictions in the condominium building’s master deed against the creation of any structures along the exterior of the building. [Note 23] Given the defendant's violation of the master deed in Xifaras and the fact that the Appeals Court only gives a passing glance at the obstruction of a harbor view while listing and emphasizing several other reasons necessitating an injunction against the defendant's portico construction, it would be unreasonable for this court to conclude that Xifaras supports an inherent property right to a view.

Plaintiffs also cite several out-of-state cases, none of which are binding upon this court. Two of the cases Plaintiffs cite – La Plata Elec. Ass'n, Inc., v. Cummins, et al., 728 P. 2d 696 (1986) and S. C. State Highway Dep't. v. Touchberry, 148 S.E. 2d 74 (1966) – involve taking a property's view into consideration when assessing compensation for the seizure of the property by the state for public purposes. Simply because the court considers a property's views while determining just compensation for the property does not mean that every property owner has an affirmative right to such a view. [Note 24] Similarly, a court taking a property's view into consideration when reviewing a city's real estate tax valuation, as the court did in Alioto Fish Company, Ltd. v. City and County of San Francisco, 161 Cal. App. 3d 950 (1984), does not give way to a property right to a view. Accordingly, even if these cases were binding, they would persuade this court merely of the fact that the court may consider a property's view when determining its value for compensatory or taxation purposes, not that every property owner may assert a right to the property's view.

Plaintiffs attempt to show that obstruction of a view confers standing to appeal a zoning board decision. Not only is the matter of standing in zoning cases largely irrelevant to a condominium view rights matter, it is abundantly clear that interference with a property owner's view does not provide standing for zoning purposes unless the municipality's zoning bylaw explicitly protects visual impact. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 493 (1989) (“These matters, essentially involving the expression of aesthetic views and speculative opinion, do not establish a plausible claim of a definite violation of a private right, property interest, or legal interest sufficient to bring any of the plaintiffs within the zone of standing.”); Kenner v. Zoning Bd. of Appeals, 459 Mass. 115 , 120 (2011) (“Generally speaking, concerns about the visual impact of a proposed structure on an abutting property are insufficient to confer standing ... [unless] a municipality's zoning bylaw specifically provides that the zoning board of appeals should take into consideration the visual impact of a proposed structure... .” (citations omitted)); Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 146 (2001) (“Generally, concerns about the visual impact of a structure do not suffice to confer standing ... .”). The cases upon which Plaintiffs rely do not counter this conclusion. [Note 25] The Boston Zoning Code does not specifically protect view rights. [Note 26] In fact, since “individual or corporate property owners acquire standing [to appeal a zoning board decision] by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest,” the fact that obstruction of a property owner's view does not confer standing unless zoning bylaws specifically protect visual impact leads to the conclusion that a property owner's views are not inherently a private property interest. Harvard Square Defense Fund, 27 Mass. App. Ct. 491 at 492-3.

Finally, Plaintiffs rely heavily upon Lilley v. Rich, No. 65172 (Mass. Super. Ct. Feb. 28, 1986), [Note 27] in which a condominium owner complained that a balcony constructed above the plaintiff’s unit was a nuisance. The court in Lilley found that the balcony was a nuisance because it cast a shadow that deprived the plaintiff's bedroom of eighty percent of its typical daylight as well as eighty-six to ninety-three percent of direct sunlight – which also eliminated a substantial amount of solar heat –, blocked the view from the bedroom, and created an unreasonable amount of noise during rainfall, which disturbed the plaintiff's sleep and work. Plaintiffs in the present case, however, assert only that the Trees will block Plaintiffs’ view, not that their light will be diminished [Note 28] or that the Trees will create unreasonable noise. [Note 29] Since the court in Lilley did not emphasize the impact of the defendant's balcony on the plaintiff’s view any more than the impact of the light deprivation or the noise caused by the balcony during rainfall, it would be inappropriate for this court to rely upon Lilley to find that the Trees violate Plaintiffs' rights by blocking Plaintiffs' view alone.

Because Plaintiffs do not possess a view or light easement over the Condominium's common areas [Note 30], [Note 31] and the law does not otherwise support the assertion that Plaintiffs procured a legal right to the Unit's view of the Charles River along with ownership of the Unit, I find that Plaintiffs do not hold a legal property right to the Unit's view.

B. Neither Statute nor Regulation Protect View as a Property Right.

As stated, supra, the condominium statute and the condominium documents do not grant a view easement to Plaintiffs. Such sources do, however, grant Defendants rights to control the common areas. As an act by the Trustees in the Condominium common areas, the propriety of the planting of the Trees by Defendants is governed by G.L. c. 183A, and the By-Laws.

[T]he corporation, trust or unincorporated association provided for in the master deed for the management and regulation of the condominium ... shall have, among its other powers ... [the right and power] to lease, manage, and otherwise deal with such community and commercial facilities as may be provided for in the master deed as being common areas and facilities.

MASS. GEN. LAWS ch. 183A, § 10 (2011). Furthermore, “the necessary work of maintenance, repair and replacement of the common areas and facilities shall be carried out as provided in the by laws.” MASS. GEN. LAWS ch. 183A, § 5(e) (2011). Section 5.1 of the By-Laws states that the Trustees shall ... have the absolute control and management of the Trust Property ... as if they were the absolute owners thereof, free from the control of the Unit Owners (except as limited in the Declaration of Trust) and ... the Trustees shall have full power and uncontrolled discretion, subject only to the limitations and conditions herein and in the provisions of said Chapter 183A, at any time and from time to time without the necessity of applying to any court or to the Unit Owners for leave so to … operate, care for, maintain, repair and replace the common areas and facilities of the Condominium.

Additionally, Section 5.3 of the By-Laws states that “the Trustees shall be responsible for the proper maintenance, repair and replacement of the common areas and facilities of the Condominium.” The Garden, as a common area of the Condominium, then, is under the complete control and discretion of Defendants for the purposes of repair and maintenance. Accordingly, Defendants were completely within their rights to plant the Trees in the Garden without seeking the approval of Plaintiffs or any other unit owners. [Note 32]

Plaintiffs contend that while Defendants have control over the maintenance of the common areas, Defendants were not entitled to act in any way contrary to the interests of any of the unit owners. Because the Trees will have a negative impact upon the Unit's value, Plaintiffs assert that Defendants acted beyond their discretionary authority in planting the Trees. Plaintiffs correctly point out that Defendants may only exercise their discretion in managing the Condominium common areas in order to promote the interests of the unit owners. [Note 33] However, Defendants, as the Trustees, are bound to the collective interests of all of the unit owners, and not to the interests of an individual unit holder. See Golub v. Milpo, Inc., 402 Mass. 397 , 401 (1988) (“The trustees may only act on behalf of all unit owners.” (emphasis in original)); Berish v. Bornsetin, 437 Mass. 252 , 265 (2002) (“The trustees or other members of the organization of unit owners may act only on behalf of all of the unit owners.”); Glickman v. Brown, 21 Mass. App. Ct. 229 , 236 (1985) (“[U]nder the provisions of G. L. c. 183A ... the trustees act only for the benefit of all the unit owners.”); Office One, Inc. v. Lopez, 437 Mass. 113 , 125 (2002) (“[A]s matter of law, members of a governing board of a condominium association, in the capacity of the trustees here, owe no fiduciary duty to individual condominium owners.”). Since Defendants need only act for the good of the unit owners as a whole and do not owe a particular duty to Plaintiffs, the planting of the Trees falls within Defendants' authorized discretion to manage the common areas, because the Trees benefit the Condominium overall by replacing older, ailing trees and serving as a buffer between the Garden and Storrow Drive. [Note 34]

Alternatively, Plaintiffs point out that Defendants are only statutorily authorized to conduct “[t]he necessary work of maintenance, repair and replacement of the common areas and facilities ... .” MASS. GEN. LAWS, ch. 183A § 5(e) (emphasis added). Accordingly, Plaintiffs argue that the planting of the Trees was not necessary for the proper maintenance of the Garden or Condominium. However, Defendants have absolute control over the maintenance of the common areas, which necessarily involves determining what is “necessary” for the maintenance. Given the fact that the ash trees that previously stood in the Garden were damaged to some extent, [Note 35] it appears that Defendants reasonably exercised their discretion to determine that the replacement of the ash trees in the Garden was necessary for the Garden's maintenance. Based on these facts, then, I find that neither G. L. c. 183A nor the By-Laws protect Plaintiffs’ view.

C. The Trees are Maintenance, not Improvements.

Plaintiffs also contend that the planting of the Trees constitutes an improvement, rather than routine maintenance, and as such, Defendants were not entitled to plant the Trees without first seeking approval from affected unit owners. [Note 36] Whereas Defendants have complete control over the maintenance and repair of the common areas independent of unit owner approval, Section 5.5(B) of the By-Laws states,

If and whenever the Trustees shall propose to make any improvement to the common areas, facilities or elements of the Condominium ... the Trustees shall submit to all Unit Owners (a) a form of agreement ... specifying the improvement or improvements proposed to be made and the estimated cost thereof, and authorizing the Trustees to proceed to make the same and (b) a copy of the provisions of Section 18 of said Chapter 183A as in force on the date hereof.

and requires signed approval of at least seventy-five percent of the unit owners for the Trustees to be able to proceed with the improvement. [Note 37]

“[T]he improvement category which only a vote by the unit owners may authorize ... is reserved for work which does more in the way of new, permanent addition to, or expansion of, the common elements ... .” Bonderman v. Touraj Naghieh, 13 LCR 406 , 408 (2005). Plaintiffs argue that the Trees are indeed a permanent expansion, if not addition, to the Garden, as they are greater in number than the previous ash trees and are substantially different in character as well as purpose. Indeed, Plaintiffs frequently refer to the Trees as a fence, arguing that the planting of the Trees constitutes the creation of a previously non-existing fence or wall in the Garden. However,

[t]hat the challenged work may add elements or features to the condominium common areas which were lacking previously, does not, by itself, bring the project within the realm of an improvement. … The Trustees need not repair or restore each element of the common area to its particular preexisting condition, out of fear that doing otherwise might cause the work to be classified as an improvement.

Id. at 409. Although the Trees are different than the ash trees that previously stood in the Garden, simply opting to plant different trees does not transform landscaping maintenance into a common area improvement. [Note 38] Similarly, the fact that the trees were intended to serve the additional purpose of softening the noise from Storrow Drive traffic and blocking the Condominium from passerby does not render the Trees an improvement, as trees often serve multiple purposes. Opting for a landscaping scheme with different utilitarian purposes constitutes maintenance of common areas more than it constitutes a permanent expansion or addition to the Condominium. Accordingly, I find that the Trees were maintenance and not improvements to the Garden, and therefore Defendants were not required to seek unit owner approval to plant the Trees.

Waste.

Plaintiffs also claim that Defendants' planting of the Trees constitutes waste. “[W]aste is an unreasonable or improper use, abuse, mismanagement or omission of duty touching real estate by one rightfully in possession which results in its substantial injury.” Delano v. Smith, 205 Mass. 365 , 370 (1910). Because this court finds that Defendants did not violate any property rights belonging to Plaintiffs as the Unit's owners and were not required under either G. L. c. 183A or the By-Laws to seek Plaintiffs' or any other unit owner's approval to plant the Trees in the Garden, this court concludes that the planting of the Trees was not unreasonable or improper and did not constitute a breach of any duty. Accordingly, I find that the planting of the Trees did not constitute waste.

Nuisance.

Plaintiffs also claim that the planting of the Trees constitutes a nuisance. However, this court does not have subject matter jurisdiction over nuisance. See MASS. GEN. LAWS ch. 185 § 1 (2011); Skydell v. Tobin, 18 LCR 174 , 182 (2010). Accordingly, I find that Plaintiffs' nuisance charge does not fall within the limited subject matter jurisdiction of this court.

Therefore, Plaintiffs’ Motion for Summary Judgment is DENIED and Defendants’ Motion for Summary Judgment is ALLOWED.

Judgment to enter accordingly.