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 attorneys 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], [Note 6]
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. A decision of todays date has been issued.
In accordance with that decision, it is:
ORDERED and ADJUDGED that Plaintiffs Motion to Admit Supplemental Affidavits is DENIED.
ORDERED and ADJUDGED that Defendants' Motion to Strike Plaintiffs' Affidavits is ALLOWED. [Note 7]
ORDERED and ADJDUGED that Plaintiffs do not hold a legal property right to the Unit's view. [Note 8]
ORDERED and ADJUDGED that neither G. L. c. 183A nor the By-laws enacted by Defendants protect Plaintiffs view.
ORDERED and ADJUDGED that the Trees were maintenance and not improvements to the Garden, [Note 9] and therefore Defendants were not required to seek unit owner approval to plant the Trees.
ORDERED and ADJUDGED that the planting of the Trees did not constitute waste.
ORDERED and ADJUDGED that Plaintiffs' nuisance charge does not fall within the limited subject matter jurisdiction of this court.
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is DENIED.
ORDERED and ADJUDGED that Defendants Motion for Summary Judgment is ALLOWED.
By the court. (Sands, J.)
[Note 1] Plaintiffs complaint also asks for a court order for the replacement of the Trees with plantings whose height, based upon the written advice of a licensed arboretist [sic] or landscape architect will not exceed fifty-four (54) inches.
[Note 2] Plaintiffs complaint also seeks a court order that Defendants cease and desist the maintenance of the Trees, alleging such maintenance constitutes both waste and a nuisance.
[Note 3] Affidavit 1 is an affidavit of Joseph Fazio.
[Note 4] Affidavit 2 is an affidavit of Dolores Fazio.
[Note 5] Defendants also re-filed a copy of the Affidavit of Carol Lundquist, which had been previously filed on September 30, 2010 with Defendants Opposition to Plaintiffs Motion for Preliminary Injunction.
[Note 6] Defendants filed a Motion to Strike Plaintiffs Untimely Discovery Requests on February 10, 2011. On February 11, 2011, Plaintiffs filed their Opposition along with Plaintiffs Motion for Leave to Amend Motion for Summary Judgment and Motion to Extend Time for Pre Summary Judgment Discovery. Defendants filed their Oppositions to Plaintiffs' Motions on February 14, 2011. On February 17, 2011, this court allowed Plaintiffs Motion for Additional Time for Discovery and Plaintiffs Motion to Amend.
[Note 7] Defendants did not move to strike Plaintiffs' Affidavits in their entirety; only the improper sections and exhibits of the Fazio Affidavits are stricken. Paragraphs 4 16 (except the first sentence of paragraph 10), 19, 21- 24 (except the statement regarding posted speed limits in paragraph 23), and Exhibits B, D-1, D-2, E, F, G, J, and I are stricken from Affidavit 1. Paragraphs 4, 5, 7 15 (except for the statement that the Trustees have planted 33 shrubs in paragraph 8 and the first sentence in paragraph 14), and Exhibits N-1, N-2, N-3, O, R, S, T, and U are stricken from Affidavit 2. Paragraphs 1 14 (except for the statement that Exhibit 11b shows sunlight in Plaintiffs' apartment on the Spring Equinox in paragraph 11) and Exhibits 1a, 1b, 1c, 2 10, 12a 13 are stricken from Supplemental Affidavit.
[Note 8] The Unit is Plaintiffs Unit Number 125 of River House Condominium, conveyed to Plaintiffs from Marsha A. Holleran by deed dated July 31, 2007 and recorded in the Registry in Book 42366, Page 197.
[Note 9] The Garden is one of the River House Condominium's common areas is a garden that abuts Storrow Drive which Plaintiffs unit in the Condominium, along with numerous other Condominium units, overlooks.