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], [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 today’s 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.)