The plaintiff Alaric Naiman, individually and as Trustee of Transition States Realty Trust (Naiman / plaintiff) initiated this action as (a) an appeal pursuant to G.L. c. 40A, § 17 from a decision of the Zoning Board of Appeals for the Town of Lincoln (Zoning Board) dated and filed with the Office of the Town Clerk on September 8, 2008; and as (b) a request for declaratory judgment pursuant to G.L. c. 231A concerning a Deed from Naiman to Lawrence Brodney and Myra Z. Brodney (Brodneys / defendants).
This case arises from a dispute between abutting neighbors over three adjoining parcels of land located on Huntley Lane in the Town of Lincoln, Massachusetts. In 2003, Naiman applied for a special permit for a cluster subdivision with the Town of Lincoln Planning Board (Planning Board), seeking to subdivide the five acres of land he owned on Huntley Lane into three lots, i.e. 12 Huntley Lane (Lot A), 10 Huntley Lane (Lot B) and Lot C. In early 2004, the Planning Board approved the plan, subject to certain conditions, easements and other restrictions. Naiman retained ownership of Lot A, on which his personal residence was and currently is located.
In March of 2005, Naiman conveyed Lot B to the Brodneys. By virtue of that deed (Deed), the Brodneys also acquired a 50% beneficial interest in a trust holding title to Lot C, which had been designated as an open space lot with conservation restrictions. The Deed pertaining to Lot B and Lot C was subject to various restrictions and conditions. In April of 2005, the Brodneys received Planning Board approval to construct a single-family residence on Lot B (Site Plan Decision). That Site Plan Decision was issued with several conditions.
Subsequently, the Brodneys constructed a residence on Lot B and made other uses of the property. In March of 2008, Naiman filed a written request with the Building Commissioner (Commissioner) alleging numerous violations by the Brodneys of the conditions set forth in the Deed as well as in the Towns Subdivision and Building decisions. Naiman sought enforcement of such conditions. The Commissioner ordered limited relief, expressing the hope that the parties could otherwise resolve their differences. Naiman, however, appealed the Commissioners determination to the Zoning Board. Following several hearings, the Zoning Board granted Naiman limited relief which provides the basis for the relief sought in Counts I through V inclusive, of the plaintiffs complaint.
On September 26, 2008, Naiman initiated this action seeking a reversal of the Zoning Boards decision on grounds that it was arbitrary and capricious, erroneous and in excess of authority. Thereafter, the plaintiff filed an Amended Complaint (Complaint) joining the Brodneys as defendants and seeking: (1) a declaration of rights under the Deed pursuant to G.L. c. 231A, (2) a mandatory injunction and damages arising from an alleged continuing trespass on the part of the Brodneys, (3) damages under G.L. c.242, §7 for allegedly improperly removing trees on Lot C (Count VIII), (4) a claim of nuisance due to the above listed actions (Count IX), and (5) a permanent injunction to prevent the recurrence of such actions. The Brodneys counterclaimed asserting a breach of contract and estoppel.
On January 30, 2009, the Brodneys filed a Motion for Judgment on the Pleadings as to Counts VI though IX, inclusive. Thereafter, an Order issued dismissing Counts VIII and IX in accordance with Mass. R. Civ. P. 12(h)(3).
Findings of Fact
A four-day trial was conducted from December 5 through December 7, 2012, inclusive, and March 5, 2013, at which a stenographer was sworn to take the testimony of Alaric Naiman, John Hamel, Mark Bartlett, James McClammer, Christopher Hugh Ripman, Lawrence Brodney, and Myra Brodney. Thirty-eight exhibits presented at trial were admitted into evidence. The exhibits are incorporated by reference into this decision for purposes of appeal.
On all the credible testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, this court finds as follows:
1. Alaric Naiman is the owner of 12 and 12A Huntley Lane, Lincoln, Massachusetts, also known as Lot A.
2. Lawrence and Myra Brodney are the owners of 10 Huntley Lane, Lincoln, Massachusetts, also known as Lot B.
3. Lot A and Lot B were once part of a larger, almost five-acre tract of land owned solely by Naiman.
4. In 2004, Naiman received a special permit from the Planning Board granting approval for a cluster subdivision under § 6.6 of the Lincoln Zoning Bylaw (Bylaw), creating Lots A, B and C from his then existing five acre parcel. [Note 1] Lot A consists of approximately 2.13 acres, comprising the former 14 and 16 Huntley Lane. It contains three buildings, two of which are residential dwellings. [Note 2] Lot A is now numbered 12 and 12A Huntley Lane. The plaintiff resides at 12 Huntley Lane.
5. Lot B consists of approximately 1.12 acres, and while subject to conditions contained in the special permit, was created as a buildable lot. [Note 3]
6. Lot C contains 1.75 acres and abuts Farrar Pond. This land is designated as open space in the Planning Boards decision.
7. The Planning Boards Decision, issuing a special permit to Naiman for the cluster subdivision (Special Permit Decision), placed a number of conditions on the subject parcels. Especially relevant to the case at bar is the following condition numbered 8:
Lot A shall be subject to the following grading and other easements for the benefit of Lot B:
a. a permanent easement for the driveway to any dwelling unit to be erected on Lot B, such easement to be located so to preserve and maintain existing and mature trees;
b. temporary easements shall be granted for the grading and construction of said driveway. All disturbed areas used for temporary construction easements over Lot A shall be regraded, restored and reseeded within ninety days after the completion of the construction of said driveway.
8. On May 28, 2004, Naiman granted a Conservation Restriction on Lot C to the Lincoln Land Conservation Trust (LLCT) to preserve the land in its natural state for the benefit of the public. [Note 4] To effectuate its purpose, the Conservation Restriction prohibited certain enumerated acts and uses. [Note 5] Of relevance to the instant matter are the following prohibitions:
(a) Construction or placing of any structure of any nature, including without limitation any building, tennis court, landing strip, mobile home, swimming pool, fence, asphalt or concrete pavement, sign, billboard or other advertising display, antenna, utility pole, tower, conduit, line or other temporary or permanent structure or facility on, below or above the Premises [Lot C];
(b) Mining, excavating, dredging or removing from the Premises [Lot C] of soil, loam, peat, gravel, sand, rock or other mineral resources or natural deposit;
(c) Placing, filling, storing or dumping on the Premises [Lot C] of soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste or other substances or material whatsoever, or the installation of underground storage tanks;
(d) Cutting, removing or otherwise destroying trees or other vegetation except as provided in section B below;
(e) Activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation. [Note 6]
9. Provisions of the Conservation Restriction vested in the LLCT the right to enforce the Conservation Restriction. However, in the event that the LLCT should fail to carry out its obligation, the right of enforcement would vest in the Lincoln Conservation Commission. [Note 7]
10. By deed dated March 18, 2005, the plaintiff conveyed Lot B to Lawrence and Myra Brodney as tenants in common. [Note 8] The deed (the Deed) contains a reference to the 2004 plan and makes the property subject to and with the benefit of several easements and restrictions which are as follows:
1. Subject to and with the benefit of a Notice of Decision of the Town of Lincoln Planning Board, filed with the Lincoln Town Clerk on February 17, 2004, to be recorded herewith.
2. Subject to the provisions of that certain Grant of Right to Construct and Maintain a Trail Easement, from Grantor to . . . Trustees of the Lincoln Land Conservation Trust, u/d/t/ dated November 11, 1957 and recorded with said Deeds in Book 9101, Page 475, as amended, which Grant is dated as of May 28, 2004 and recorded herewith.
3. Subject to the following easements hereby reserved by the Grantor, for himself and his successors in title to Lot A, as shown on the Plan:
a. An easement over the Easement Area hereinafter described on Lot B for occasional access to and from the buildings and grounds on Lot A for maintenance purposes, including access for possible construction of a new septic system on Lot A.
b. An easement over the Easement Area hereinafter described on Lot B to the extent necessary to enable Grantor to connect to any power line which Grantee may install within the Easement Area, for use by the accessory building on Lot A which is shown on the Plan, any such connection to be at the sole cost and expense of Grantor.
The Easement Area on Lot B, as used herein, is that portion of Lot B bounded on the north by the aforesaid Lot A, on the east and southeast by Huntley Lane, on the south by land now or formerly of Thomas A. Cappucci and Barbara A. Cappucci and by land now or formally of Paul Neurath and Karan Neurath, and on the west by a line extending S33º2851E from the southwestern corner of Lot A at the intersection of Lots A, B and C to the southern boundary of Lot B.
The Grantor agrees that any portion of the Easement Area on Lot B that is disturbed by the Grantors exercise of the rights reserved herein will be restored, as nearly as practical to its condition prior to the exercise of the rights granted by this paragraph (hereinafter, its Original Condition) at the sole expense of the Grantor. The Grantor further agrees that the scope of this easement shall not include any actions which adversely affect the Grantees use of the Easement Area for the Purpose of access to and from the house constructed on Lot B and for any other purpose for which driveways are commonly used in the Town of Lincoln. The Grantor agrees, to the extent permitted by law, to indemnify and hold the Grantee harmless against any loss or damage caused by the exercise of the easement rights granted hereunder, including without limitation any such loss or damage caused by the Grantor, by any employee of the Grantor, or by any party contracting with the Grantor or otherwise on the Easement Area by permission of the Grantor.
4. Together with the benefit of the following easements on Lot A, as shown on the Plan, hereby granted by the Grantor for the benefit of Lot B:
a. An easement on that portion of Lot A which is contiguous with Lot B for the construction and grading of a driveway from Huntley Lane to building envelope on Lot B, as such building envelope is shown on the Plan.
i. The driveway is to be located entirely on Lot B, except for such areas of the driveway shown to be located within the boundaries of Lot A on that certain plan entitled Site Plan of Land dated March 9, 2005, Scale 1= 30, prepared by Schofield Brothers of New England, Inc, and attached hereto as Exhibit A (the 2005 Schofield Plan).
ii. The Grantee will make reasonable efforts to have the driveway engineered and constructed so as to minimize the accumulation of stormwater on Lot A, flowing from Lot B, in excess of the amounts which currently flow from Lot B and accumulate on Lot A.
iv. [Note 9] Prior to exercising the Grantees rights hereunder, the Grantor and the Grantee will agree on the area that will be disturbed, and the Grantor shall identify any specimen trees and shrubs previously planted in the easement area by the Grantor which the Grantor wants to retain. The Grantee shall provide the Grantor with the necessary equipment and manpower, at the Grantees cost, to remove such specimens from the area to be disturbed, and to enable the Grantor to replant such specimens on other property of the Grantor.
v. As promptly as possible after the completion of such construction and grading, the Grantee will recover any portion of Lot A disturbed or otherwise affected by the exercise of this easement with at least four (4) inches of topsoil and will replant such area with a cover crop, and otherwise restore the area disturbed or affected as nearly as practical to its Original Condition at the sole expense of the Grantee.
b. A temporary easement on a portion of Lot A at the intersection of Huntley Lane and Lot B to allow access by construction vehicles from Huntley Lane to Lot B, which area shall in no event extend more than sixteen (16) feet onto Lot A from the northern boundary of Lot B, nor more than thirty (30) feet onto Lot A from the westerly boundary of Huntley Lane. As soon as possible after substantial completion of construction of a dwelling on Lot B (and in any event within one year of the commencement of construction of such dwelling), Grantee shall restore the easement area described in this paragraph to a condition as nearly as practicable to its Original Condition, at the sole expense of the Grantee.
c. An easement on Lot C, as shown on the Plan, to construct, maintain and use a driveway for all purposes for which a driveway is used in the Town of Lincoln, Massachusetts, such easements to be located on that portion of Lot C on which the driveway is shown on the 2005 Schofield Plan.
d. The Grantee agrees, to the extent permitted by law, to indemnify and hold the Grantor and their successors and assigns, as owners of Lot A and of Lot C, harmless against any loss or damages, or claims of loss or damage, caused by construction of the driveway and the drainage therefrom, or by the exercise of the easement rights granted hereunder, including without limitation any such loss or damage caused by the Grantee, by any employee of the Grantee, or by any party contracting with the Grantee or otherwise on the easement areas by permission of the Grantee.
5. Together with a 50% beneficial interest in the AdelMark Open Space Nominee Trust u/d/t dated March 18, 2005, which will hold title to Lot C as shown on the Plan pursuant to a deed of even record and delivery date herewith.
6. By accepting this deed, Grantee agrees, for themselves and their successors in title, that any illumination on Lot B will be designed and used so as to minimize impact on Lot A.
11. Simultaneously with the conveyance of Lot B to the Brodneys, Naiman executed a declaration of trust, creating the AdelMark Open Space Nominee Trust, appointing Alaric Naiman and Lawrence Brodney as Trustees thereof. The respective owners of Lot A and Lot B were designated as beneficiaries of the Trust. Naiman conveyed Lot C to the Trustees of the AdelMark Open Space Nominee Trust. [Note 10] [Note 11]
The declaration of trust sets forth the rights, duties and obligations of the Trustees and the beneficiaries. Of particular relevance, are the following sections:
§ 1.1 ¶ 3
The Trustees shall have all rights and powers in and with respect to the Trust Estate, including the right to exercise, manage, administer and dispose of the same for the benefit of the Owners of the two buildable lots, Lot A and Lot B in the R-1 Cluster Subdivision shown on the Plan (hereinafter called the Land Owners), according to the percentage set forth in a Schedule of Beneficial Interest attached hereto, subject however, to the terms of the Grant of Conservation Restriction referenced below.
In the event there is only one Trustee, such Trustee may execute any and all instruments and certificates necessary to carry out the provisions of the Trust. In the event there are two or more Trustees, ANY TWO TRUSTEES, except as otherwise provided in Paragraph 7.2, may execute such instruments and certificates necessary to carry out the terms of the Trust.
Decisions made and actions taken hereunder (including without limitation, amendment and termination of this Trust; appointment and removal of Trustees; directions and notices to Trustees; and execution of documents) shall be made or taken, as the case may be, by all of the Beneficiaries. (emphasis added)
Except as hereinafter provided in the case of the termination of this Trust, the Trustees shall have no power to deal in or with the Trust Estate except as directed by all of the beneficiaries. [Note 12]
12. The Town of Lincolns Zoning Bylaw requires that there be site plan approval by the Planning Board prior to commencing construction on unimproved lots within the zoning district in which Lot B lies. [Note 13] The Brodneys applied for Site Plan Approval before the Planning Board to construct a single-family dwelling on Lot B. On April 27, 2005, the Planning Board, finding that the Brodneys proposal met the requirements of the Special Permit Decision, issued a decision (Site Plan Decision), granting Site Plan Approval, subject to the following seven conditions:
1. The project shall conform to the final plans and materials as represented above and presented during the public hearing as well as all applicable state and local building, life safety, and sanitary codes.
2. The landscaping plan and future landscaping shall NOT contain plantings of non-native invasive species. The applicant shall consult the Conservation Department list of non-native invasive species and alternative non-invasive species.
3. Unless otherwise specifically approved by the Planning Board, all proposed exterior lighting shall meet the standards of the Dark Sky Initiative (www.darksky.org) and the Zoning Bylaw Section 13.5 Exterior Lighting. [Note 14]
4. A silt fence / hay bale line shall be placed two feet inside the property boundary along the construction areas.
5. Any future paving of the driveway beyond what is shown in the approved site plan shall require approval of the Planning Board.
6. The applicant and his contractors shall make their best efforts to protect trees within the 10 foot vegetative buffer and on neighboring properties.
7. Stormwater runoff shall not cause erosion or other adverse effects on Lot C. Prior to receiving a building permit, the applicant shall submit plans satisfactory to the building inspector for a storm water absorption system.
13. Prior to construction, Lot B was covered by a northern hardwood forest. [Note 15] The topography of the land was undulating, consisting of knolls, hills and valleys. [Note 16] The combination of a mature forest and the challenges presented by the rough terrain necessitated a significant amount of site preparation work.
14. The Brodneys contractors began site preparation on the land in May or June of 2005. [Note 17] The contractors stumped the trees in the area that needed to be cleared and created a rough driveway in preparation for the concrete footings of the residential foundation and the final driveway. Site preparation was completed in August of 2005, [Note 18] while construction of the residence itself was completed in March of 2006. The Brodneys moved into the dwelling in April of 2006. [Note 19]
15. Owing to the irregular topography, construction of the dwelling required extensive grading. The area over which the driveway was built had changes in elevation ranging from 186 feet to 177 feet and passed through a knoll located at the junction of Lot A and Lot C. [Note 20] In order to construct a reasonably level driveway, the Brodneys contractor had to excavate the knoll down approximately eight feet. [Note 21]
Approximately 120 feet past the junction of Lot A and Lot C, about 30 feet from the garage, an additional parking area / backup spot was built. At that point, the land transitions into a valley, an area of moderately steep depression. The elevation of the driveway and the house is at 179 or 179.5 feet, and beyond it, where the parking area / backup spot was constructed, the elevation drops to 160 feet, necessitating an area of fill and a retaining wall in order to construct the parking area on a level with the remainder of the driveway. [Note 22]
16. As constructed, the Brodney residence is a long, narrow structure. [Note 23] It is situated at the end of an approximately 300 foot long driveway, which travels from Huntley Lane to the attached two bay garage at the easterly end of the house. [Note 24] On the easterly facing aspect of the garage, on which the bay doors are located, there are two bracket light fixtures, one on each side of the garage bays.
17. At about the time the Brodneys moved into their new home, their contractor installed a motion sensor operating a two-floodlight fixture on the center beam between the bays on the garage. The Planning Board did not approve this lighting fixture. [Note 25]
18. In December of that year, Naiman met with the Brodneys and adjusted the direction of the flood light. He also provided the Brodneys with lower wattage bulbs for the lights on either side of the garage bays. [Note 26]
19. On February 19, 2008, the Lincoln Land Conservation Trust (LLCT) sent a letter to the Trustees of the Adelmark Open Space Nominee Trust, detailing multiple violations of the Conservation Restriction on Lot C, and setting forth the LLCTs resolutions with regard to the enumerated violations. The relevant violations of the Conservation Restriction and the LLCTs resolutions are as follows:
Driveway Encroachment A significant portion of the driveway and its grading are located on Lot C in violation of the [Conservation Restriction]. Requiring a relocation of the driveway would serve no incremental conservation interest, and would potentially adversely affect adjacent abutters, require destruction of mature trees, and further disrupt drainage patterns. Provided the storm water management issues are resolved and the disturbed area adjacent to the driveway is re-vegetated and stabilized with non-invasive native plants, we would permit the driveway to remain in its current location.
Driveway Shrub Plantings The northern shoulder of the driveway adjacent to Lot C, largely within the [Conservation Restriction], consists of rough construction fill, struggling vegetation and apparent drainage problems. To mitigate the impact of the driveway location and to reduce further erosion and sedimentation on Lot C, this road edge should be stabilized in a manner reasonably acceptable to the LLCT, including the addition of top soil and established native vegetation.
Erosion When construction of the driveway and other lot improvements were undertaken by the Brodneys, substantial erosion began, leading to a swift re-design (including approval by the Planning Board) to install a retaining wall and crushed rock to reduce the velocity of water coming from the storm drain. There is some dispute whether additional drainage control, undertaken without permission of or consultation with the LLCT, has sufficiently reduced the erosion and siltation from the outfall and surface drainage. Clearly, erosion and siltation must be stopped, and we suggest this matter be reviewed during seasonal high water in the spring, with the agreement that the Owner will take such mitigation and remediation as is necessary to eliminate erosion and siltation, neither of which were [sic] intended in the original design.
Understory Clearing The [Conservation Restriction] provides limited alterations of the understory within the View Corridor. Because of the equipment used by the Brodneys site contractor, the soil and vegetation in the View Corridor (perhaps augmented by the erosion on the hill) substantially compromised the understory on Lot C. Re-vegetation has largely been alien invasive plants, which significantly affect wildlife habitat and the distinct landscape noted in the [Conservation Restriction]. We propose that the Owner provide a plan for controlling invasive species and planting or otherwise encouraging native understory vegetation. The plan would be subject to approval by the LLCT, and LLCT would be notified prior to any activities.
Log Piles The large piles of trees and limbs far exceed the small piles of brush permitted in the [Conservation Restriction]. Chipping or otherwise dispersing the logs would be more detrimental to the conservation values than permitting them to decompose in place. No further piles of any sort should be created without express permission of the LLCT anywhere on Lot C. [Note 27]
20. On March 14, 2008, Naiman requested zoning enforcement from the Town of Lincoln Building Commissioner, Earl Midgley. In his request Naiman alleged violations of the Special Permit Decision and the Site Plan Decision. Specifically, he sought to redress:
1) The Brodneys alleged failure to adequately restore the disturbed easement areas on Lot A, claiming that [they] have removed the topsoil and sand, replacing it with rocky fill cemented by fine silt. It neither absorbs nor retains water for plants in the area, and it is too rocky for healthy root development. Alarmingly, the fill contains broken glass, rusty metal, plastic and other litter dangerous to Mr. Naiman and others visiting the property.
2) Alleged violations of the Conservation Restriction and Special Permit Decision as to Lot C, in which Naiman claims that the construction on Lot B has largely destroyed the area. In particular he claimed that Lot C once contained nutrient-rich topsoil and plentiful trees and shrubs of diverse species and ages, now the topsoil and sand has been removed from the area and replaced with rocky fill and silt, not unlike that utilized in the driveway easement area over Lot A. Second, nearly all of the trees and shrubs in the so-called upper valley area of Lot C have been removed as to allow for soil erosion, invasion by poison ivy and other non-native species and a reduction in wildlife. Naiman also claimed to have found construction debris on the lot.
3) Alleged violations of the Site Plan Decision and of the Bylaw in regards to the Brodneys exterior lighting, claiming that the lights were not Dark Sky compliant, and moreover were not installed or shielded as to prevent direct light or glare from illuminating neighboring properties. See Bylaw § 13.5. At issue were the Brodneys motion sensor operated floodlight, the two fixed lights on either side of the garage bays, and the solar powered lights along the driveway. [Note 28]
21. On March 25, 2008, the Building Commissioner responded to Naimans request for zoning enforcement. In his letter of even date, he found that enforcement was required as to restoration of the easement area on Lot B, and noted that Lawrence Brodney promised that ten square yards of topsoil would be delivered, pending Naimans approval. He further observed that there was no visible evidence of non-natural materials on Lot C, and that actions such as clean up or tree removal on Lot C could only be taken with the prior approval of the LLCT. With regard to the Brodneys exterior lights, the Building Commissioner found that the fixed lights had been approved by the Planning Board in its Site Plan Decision, but that the motion sensor operated light had not been so approved. He recommended that the Brodneys remove the unapproved light, and go before the Planning Board to seek approval for an appropriate substitute.
The Building Commissioner concluded his letter with the following sentiment: It is my hope that the parties involved will be able to work together to resolve these issues to the satisfaction of all involved. [Note 29]
22. The Brodneys appeared before the Planning Board on May 14, 2008, at which time they sought approval for the then-existing motion sensor operated floodlight and the solar powered lights along the driveway. The Planning Board denied their request, and the Brodneys removed the offending fixtures. On June 18, 2008, the Brodneys again appeared before the Planning Board, and at that time sought approval for what is the now currently existing motion sensor operated light. Approval was granted, subject to the condition that the light was to be operated by motion sensor on a one minute timer, that the sensor be of low sensitivity, and that the light not exceed 60 watts. [Note 30]
23. On April 23, 2008, Naiman appealed to the Town of Lincoln Zoning Board of Appeals (Zoning Board), from the Building Commissioners determination. See G.L. c. 40A, §§ 8, 15. In his appeal, he alleged generally that the Building Commissioner's response insufficiently addressed his concerns. Specifically, he claimed that:
a) As pertaining to the proposed restoration of the easement areas on Lot A, [t]he Brodneys promise of topsoil for the disturbed areas, while supported by Mr. Midgley, will not restore the area as nearly as practical to its original condition. Prior to the Brodneys activities, large numbers of deeply rooted trees and plantings were growing naturally and from plantings by Mr. Naiman himself.
b) Regarding the alleged violations on Lot C, [t]he [Building Commissioners] Response offers no rebuke of the violations . . . [which] are sizeable, however, and warrant enforcement by this Board. Their removal of soil and sand, and their wholesale destruction of trees and shrubs, is in contravention of the Planning Boards decisions and the conservation restriction on the property. While the Brodneys have offered to weed the disturbed areas of Lot C and deliver loam to the site, their proposal seems intended to convert these areas into an extension of their manicured yard and not to return them to their natural state.
3) As to the lighting, Naiman claimed that while he was grateful for the Building Commissioners determination that the motion sensor light above the garage was not approved by the Planning Board, he was confident that the other of the Brodneys light fixtures are not of the type and wattage mandated by the Dark Sky Initiative and, as such, by the Site Plan Decision. [Note 31]
24. On May 15, 2008, the Zoning Board conducted a public hearing on Naimans appeal. The hearing was continued until June 19, 2008 to allow the members of the Zoning Board to take site visits to the parcels at issue. Thereafter, the hearing was continued one last time to August 14, 2008.
On September 8, 2008, the Zoning Board issued its decision. In it, the Zoning Board found that the issues on Lot A concern primarily how much loam should be spread over the disturbed area of Lot A and Lot C, and who should be responsible for spreading it and replanting the area. The Zoning Board further noted that the development of Lot B apparently was not a simple project, and involved substantial grading and filling. They confirmed the presence of rough construction fill as found by the LLCT, and the struggling, scanty vegetation in the disturbed areas.
The Zoning Board, in part relying on the LLCTs findings as expressed in its letter dated February 19, 2008, see Findings of Facts, supra ¶ 19, concluded that the Board believes that requiring removal and replacement of the rough construction fill complained of by Mr. Naiman is not necessary or desirable to comply with the Planning Boards conditions, provided that adequate loam and appropriate vegetation is added to the disturbed area. The Board further found that one hundred cubic yards of loam would be sufficient to cover the disturbed areas, and would permit restoration so long as appropriate vegetation was to be planted.
The Zoning Board concluded its Decision specifying the following remedial actions:
Protection of Lot C
The LLCT will mark with stakes an area in the lower valley of Lot C (excluding the area with hay ferns) for cutting by hand of bramble/brush, not to exceed what one person can cut and drop by hand in one day. The Brodneys will hire one man for one day to cut and drop bramble/brush in this area at their expense.
The LLCT will cut existing brush piles into smaller piles to facilitate decomposition.
Mr. Naiman will submit a planting plan for lower Lot C to the Brodneys for approval, which will not be unreasonably withheld. The Naiman/Brodney trust will then submit the plan to the LLCT for approval. Upon approval by the LLCT, Mr. Naiman will carry out the planting plan at his expense.
The Brodneys will put more trapstone on the top of their retaining wall to manage water runoff. They will also construct a swale with trapstone as provided in their August 1, 2008, letter at their expense.
Mr. Naiman will install waterbars on the former trail to stop erosion, at his expense. Mr. Naiman will also plant native trees/shrubs on upper Lot C at his expense, subject to approval by the LLCT.
The foregoing work shall be carried out as soon as feasible.
Restoration of Lot A/C
The Brodneys will deliver to Mr. Naiman within 30 days of the filing of this decision a check or gift certificate for the cost of 100 cubic yards of loam delivered to the disturbed areas of Lot A and Lot C, and for the cost of one man and equipment for one day to spread loam over the all the disturbed areas of the Lot A easements and the panhandle of Lot C, with a total cost not to exceed $3100. Mr. Naiman will oversee the spreading of the loam, and will reseed and plant these areas with suitable native species at his expense. Work on the Lot C panhandle will be subject to approval by the LLCT. Any loam remaining after spreading may be used by the Brodneys. An area of five feet bordering the driveway will be planted only with ground cover to preserve sight lines and facilitate snow removal. Mr. Naiman will be responsible for maintaining the plantings on Lot A in the future.
General The foregoing remedies are a final resolution of all matters raised by Mr. Naiman in his application. As in all cases of disputes between neighbors, the Board would second the expression of hope by Mr. Midgley, that the parties will be able to work together to resolve future issues to the satisfaction of all involved. [Note 32]
25. Lot A, Lot B, and Lot C (collectively the Lots) are located in an area of glacial outwash that has naturally occurring soil profiles consisting of Hinckley and Haven Silt Loam. [Note 33]
26. The southeastern portion of Lot A and the southeastern portion of Lot Bs driveway have a Haven Silt Loam profile. [Note 34] Haven Silt Loam is a well-drained, sandy and silty soil.
27. The remainder of the Lots have a naturally occurring soil profile consisting of Hinckley soil. [Note 35] Hinckley soil is similar in composition to the Haven Silt Loam, but is an excessively well-drained soil. [Note 36]
28. An area of approximately 2,567 square feet on Lot A and 3,630 square feet on Lot C, for an approximate total of 6,197 square feet, was affected by the construction on Lot B (Disturbed Area). [Note 37] The Disturbed Area runs parallel to the Brodneys driveway on Lot A. It then continues through the area where Lots A and C meet, at which point the Brodneys contractor had to remove the then existing knoll so as to construct a reasonably level driveway. [Note 38]
29. The rough construction fill or dozer till used as fill in the Disturbed Area consists of a mixture of hard packed sandy loam and silty sand, with sections containing pebbles and rocks. [Note 39] Other areas of fill consisted of so-called common fill, which is a clean and compacted dark loamy sand and subsoil mix, commonly used by contractors. [Note 40] The areas of cut within the Disturbed Area retained their natural soil profile. [Note 41]
30. Till is a type of soil that was deposited by glaciers. It is a poorly sorted soil without a uniform particle size and may contain large cobbles. Till is a common type of soil in New England, and supports vegetative communities throughout the region. [Note 42] This soil is often used at construction sites because it compacts well and is suitable for supporting structures such as roadways. [Note 43]
31. No top soil was spread on the disturbed area by the Brodneys. [Note 44]
32. As of the date of trial, the disturbed area has been re-vegetated with Naimans cultivated plantings, and native species such as goldenrod, Joe Pye Weed, sumac and poplar, consistent with an early successional forest. [Note 45]
33. The Brodneys driveway, as built, exceeded the easements granted thereto, and as such, encroaches on portions of Lot A and Lot C. [Note 46]
On appeal, among the claims asserted by Naiman, are those concerning Lot C. In this regard, he argues that as co-beneficiary of the trust holding title to Lot C, he is entitled to compensatory and restorative damages on account of (a) the Brodneys driveway encroachment and (b) damage to the land within the disturbed area. Naimans expert testified as to the anticipated costs to repair the damage done to Lot C. He recommended that the common fill / dozer till be removed, that it be replaced with Hinckley soil, that four inches of topsoil be put down, and that the area impacted by the driveway encroachment and the disturbed area be hydroseeded, mulched and watered for a total cost of $20,698.96. [Note 47] As owner of a 50% beneficial interest in Lot C, Naiman seeks compensatory damages equal to half of the restoration costs as outlined by his expert. [Note 48]
Even if the court were inclined as to accept the recommendations of the plaintiffs expert as an appropriate remedy, the court finds, for the reasons discussed infra, that the plaintiffs claims fail as a matter of law. It is the view of this court that the plaintiff is without the requisite standing to maintain this action as it relates to Lot C. On March 18, 2005, Naiman conveyed title to Lot C to the Adlemark Open Space Nominee Trust (Adlemark Trust), of which he and Lawrence Brodney are named as co-trustees. As of that date, the plaintiff, either individually or as trustee of the Transition States Realty Trust, was no longer the owner in fee of Lot C. Rather, title vested in the Adlemark Trust. The trustees of the Adlemark Trust are authorized, as directed by the beneficiaries, to carry out certain actions in furtherance of the Adlemark Trust provisions. [Note 49] However, even if Naiman were purporting to act herein as co-trustee of the Adlemark Trust, he would still lack the requisite standing.
The terms of the Declaration of Trust (Declaration) establishing the Adlemark Trust set forth those circumstances under which the trustees possess the legal authorization to act with regard to Lot C. The Declaration plainly prohibits unilateral action by a trustee or beneficiary when, as is the case here, there is more than one trustee or beneficiary. Section 2.1 provides that [i]n the event there are two or more Trustees, ANY TWO TRUSTEES, [exceptions not relevant] may execute such instruments and certificates necessary to carry out the terms of the Trust. The Declaration further provides in section 3.2 that [d]ecisions made and actions taken hereunder . . . shall be made or taken, as the case may be, by all of the Beneficiaries. Section 4.2 specifies that the Trustees shall have no power to deal in or with the Trust Estate except as directed by all of the beneficiaries. [Note 50]
Consequently, absent the Brodneys permission as beneficiaries or Lawrence Brodneys assent as trustee, Mr. Naiman lacked the requisite authority (a) to act as trustee and (b) to maintain the claims as regards Lot C. See Loughery v. Bright, 267 Mass. 584 , 588,589 (1929) (Where it is required by a trust agreement that a certain number of trustees is to act, a lesser number cannot deal with the trust property.).
Likewise, it is readily apparent that the plaintiff seeks an alternative method to enforce the terms of the Conservation Restriction on Lot C, that was granted to the LLCT. [Note 51] In essence, his claims for restoration damages arise from purported violations of the Conservation Restriction. As previously observed, the plaintiff may not legally pursue such claims. The Conservation Restriction, dated May 28, 2004, prohibits construction . . . of any nature, including without limitation . . . asphalt or concrete pavement, and further prohibits removing . . . soil, loam, peat, gravel, sand [and] rock, and forbids placing, filling, storing . . . soil, . . . or other substances or material whatsoever. [Note 52] By its own terms, it specifically vests the right to enforce its provisions in the LLCT. [Note 53]
The construction of the Brodneys home on Lot B as well as the encroachment of their driveway on Lot C resulted in violations of the Conservation Restriction, as determined by the LLCT. See Findings of Fact, supra ¶ 19. However, the LLCT is the entity legally entitled to enforce the Conservation Restriction. [Note 54] To this end, the LLCT, on February 19, 2008, sent an enforcement letter to the trustees of the Adlemark Trust outlining certain violations along with the appropriate remedial actions that were to be taken. The plaintiff is without a personal remedy for violations of the Conservation Restriction.
1. G.L. c. 231A Claims
Naiman argues that the Brodneys are in violation of the terms of the Deed covenants, to wit, that they have not restored the disturbed area to its Original Condition and that their exterior lighting choices are not designed and used as to minimize impact on Lot A. Consequently, he seeks a declaration under G.L. c. 231A as to the rights, duties and obligations of the parties under the Deed.
Pertinent to the discussion of Original Condition is section 3(b), ¶ 3 of the Deed. That provision references Original Condition and notes that the land will be restored, as nearly as practical to its condition prior to the exercise of the rights granted by this paragraph. The obligation of the Brodneys to restore land to its Original Condition arises in connection with the easement area along the driveway. Section 4(a)(v) of the Deed provides in pertinent part, as follows:
As promptly as possible after the completion of such construction and grading, the Grantee will recover any portion of Lot A disturbed or otherwise affected by the exercise of this easement with at least four (4) inches of topsoil and will replant such area with a cover crop, and otherwise restore the area disturbed or affected as nearly as practical to its Original Condition at the sole expense of the Grantee;
With regard to the temporary construction easement over Lot A, section 4(b) recites the following:
As soon as possible after substantial completion of construction of a dwelling on Lot B (and in any event within one year of the commencement of construction of such dwelling), Grantee shall restore the easement area described in this paragraph to a condition as nearly as practicable to its Original Condition, at the sole expense of the Grantee.
The precise aspect of the affected land that must be restored, as nearly as practical to its condition prior to the exercise of the rights granted by this paragraph, is nowhere clearly stated. The plaintiff argues that Original Condition means that the soilsincluding the subsoilsin the Disturbed Area were to be restored as nearly as practicable to their original condition. [Note 55]
At trial, Mr. Naiman presented substantially uncontroverted evidence through the testimony of his soil expert, Mark Bartlett, [Note 56] together with supporting exhibits, indicating that the native soils and subsoils (Hinckley or Haven Silt Loam) had been excavated [Note 57] in the areas of fill within the Disturbed Area and that they were replaced by till or common fill. [Note 58] In the areas of cut within the Disturbed Area, the top layer of the native soils had been removed. [Note 59] The plaintiff contends that if the Brodneys are to fulfill their obligations under the Deed, the till or common fill in the Disturbed Area must be removed and then remediated to the original, pre-construction, soil profile. The Brodneys, for their part, argue that the phrase Original Condition obliges them to restore the Disturbed Area to 75% native vegetative cover.
In support of his argument, the plaintiff cites the plain language appearing in the Deed. In the alternative, he argues that the Brodneys were aware of his concern for soil restoration at the time of sale. The court finds that Original Condition as used herein, and even as defined by section 3(b), ¶ 3 of the Deed, is less than clear. If the words used in the contract are plain and free from ambiguity, they must be construed in their usual and ordinary sense; but if they are susceptible of different interpretations and there is doubt, obscurity or uncertainty as to what the parties intended, resort may be had not only to the terms of the contract itself, but also to the circumstances underlying its making. Morse v. City of Boston, 260 Mass. 255 , 262 (1927) (internal citations omitted).
Based on the plain language of the Deed, the obligation to restore the Disturbed Area with at least four (4) inches of topsoil and . . . replant such area with a cover crop, and otherwise restore the area disturbed or affected as nearly as practical to its Original Condition does not arise until after the completion of such construction and grading. Thus, as a matter of necessity, condition prior cannot mean the exact condition prior to construction and grading, because the duty to restore occurs after grading. The act of grading, [Note 60] particularly on a site such as Lot B with its preconstruction topography, will bring about significant, permanent changes to the land.
Lot B, prior to construction, was covered by a northern hardwood forest and had undulating terrain, consisting of hills and valleys. A significant amount of preconstruction site work was required in order to create a reasonably level area for the construction of the Brodney residence and driveway. The areas of cut and fill within the Disturbed Area have been permanently altered by virtue of the necessary grading and construction. Furthermore, a section of the mature forest had to be cleared to make way for the residence and driveway. The permanence of these substantive changes means that condition prior cannot be taken as a reference to exact condition prior. [Note 61]
The court now turns to what was intended by the parties at the time of drafting the Deed. The intent of the parties is to be ascertained from the language of the instruments when read in the light of the circumstances attending their execution, the physical condition of the premises, and the knowledge which the parties had or with which they are chargeable." Bourdeau v. Coleman, 29 Mass. App. Ct. 621 , 629 (1990) (internal citations omitted).
The plaintiff argues that because the Brodneys were aware that Naiman is an active horticulturist, [Note 62] they were cognizant of the need for post-construction subsoil restoration within the Disturbed Area, even though nothing so specific could be discerned from the express language of the Deed. The court disagrees that the circumstances surrounding the execution of the Deed compel, or even lead to, the conclusion that the Brodneys were aware of an alleged duty to restore the subsoils to either a Hinckley or a Haven Silt Loam profile.
The Purchase and Sale Agreement, executed in 2005, stipulated that the easement area will be kept as narrow as practicable and that the Buyer will re-cover affected areas of Lot A with at least 10 inches of topsoil and replant the disturbed area with a cover crop. [Note 63] While cited by the plaintiff in support of his contention that the Brodneys were aware of his concern for soil restoration, this clause suggests nothing more than that the Disturbed Area required topsoil and re-vegetation. No concern regarding a specific subsoil profile can reasonably be derived from a requirement that a certain area be covered with topsoil and a cover crop. [Note 64]
Other evidence adduced at trial is further indicative of Naimans intention in utilizing the language restore . . . as practical to its Original Condition. The plaintiff testified on cross examination as follows:
Q And you have previously testified before the zoning board that your intention by this covenant was to simply restore the property, being the disturbed part of lot A, to its native forest conditions; isnt that correct?
A With the implication of the soils required to that, yeah. [Note 65] (emphasis added)
The plaintiff also testified as follows:
Q And in any event at a zoning board hearing on this very issue about the disturbed portion of lot A, you said that what your understanding and desire was to restore it to its native forest conditions; right?
A Including the soils under the forest, yes.
Q You didnt say that at the zoning board hearing though; did you?
A No. Nor did I say they could use potted plants. [Note 66]
In addition, in his appeal to the Zoning Board, the plaintiff alleged that the Brodneys offer to spread topsoil on the Disturbed Area will not restore the area as nearly as practical to its original condition. Prior to the Brodneys activities, large numbers of deeply rooted trees and plantings were growing naturally and from plantings by Mr. Naiman himself. [Note 67]
In a letter dated July 30, 2008 to the Brodneys contractor, Macone Brothers Excavation Inc., the plaintiff wrote that he had not been able to find any of the original topsoil on either lot within the Disturbed Area and that the material that was placed there has made restoration of vegetation (per agreement) impossible. He noted, in addition, that construction work had exceeded the narrow strip allowed along the Brodneys driveway, resulting in the destruction of a carefully maintained lawn and some surrounding plantings in the out of bounds area. That whole strip . . . had been surfaced with about six inches of high quality loam in 1995. Quite a bit of this, also, was removed as work progressed. He added that he also expected that all affected surfaces, per contract, would be remediated with loam, finish grading and stabilization seeding. [Note 68] Such evidence clearly demonstrates Naimans ongoing concern with loam / topsoil, finish grading, and re-vegetation, i.e. as contrasted with subsoil horizons or layers.
Moreover, experts appearing both for the plaintiff and the defendants offered testimony as to the uniqueness of an obligation to replace or remediate harmless soils. Although Bartlett, the plaintiffs soil expert, construed Original Condition to mean that the subsoils had to be returned to their naturally occurring profile, he freely acknowledged on cross examination that such a request was unusual. The relevant testimony is as follows:
Q And so it would be fair to say that the in the real world, as a practical matter, that customers walk in the door at [Mr. Bartletts place of business] are folks when they need soil remediation, its because theres a serious problem, like hazardous material in the property; right?
A Yes, thats generally the case. [Note 69]
He further testified on cross-examination as follows:
Q And Im not questioning your expertise in this area. Im just questioning as a practical, you know, every day occurrence of what you do in your business at Norfolk-Ram, have you ever seen a situation where someone post construction, post-residential construction has requested for your firm to analyze whether fill or soil needs to be removed because it didnt match up to the pre-existing soil profile?
A No. In that respect this is for me unique; I havent seen that before. [Note 70]
For his part, the defendants expert, James McClammer, taxonomist and president of Connecticut Valley Environmental Services testified on direct examination as follows:
Q: Have you ever encountered a situation in your professional career where a landowner was required to restore a site to a specific subsoil profile?
Q: And would that be achievable . Is that even desirable?
A: I dont see a basis for it, unless it was really some toxic material that would have a negative impact on the growth of vegetation above it. You know, Ive been involved in projects where we had PCBs use and so consequently it was you know, the soil had to be removed. But other than some toxic element, Ive never anticipated any or seen any project even, and I look at an awful lot of projects, that were you know, weve had to remove soil because it wasnt the right soil series. [Note 71]
Likewise, Lawrence Brodney testified on direct examination as follows:
Q: Was [subsoil profile restoration] ever discussed with you at any time in the negotiations prior to that time you signed the Deed in March 2005?
Q: Had you known that you would have been obligated by Mr. Naiman to ensure that the exact same soil profile that is in other parts of Lot A were reimposed and reconstituted on the disturbed areas of Lot A surrounding the driveway and that was your obligation to restore it, is that would you have engaged in this transaction?
A: No. I think not think, I know we would have run so fast its not funny. I mean thats incredibly impractical and it was never discussed. [Note 72]
This court specifically finds that an obligation, express or implied, to restore the subsoils in the Disturbed Area to their exact pre-existing profile is not supported by the explicit language appearing in the Deed, nor is supported by circumstances surrounding the execution of the Deed. As observed, such a duty or obligation would be highly unusual, so that it could not be implied through a common course of business dealing or trade usage. See Restatement (Second) of Contracts § 222(1),(3).
Should Naiman have desired to retain the exact naturally occurring soil and subsoil profile, he was free to so specify. He failed to do so, however. Moreover, an ambiguous contract is generally to be construed against the drafting party. Demoulas v. Demoulas Super Markets Inc., 424 Mass. 501 , 570, n.72 (1997), citing Massachusetts Turnpike Auth. v. Perini Corp., 349 Mass. 448 , 454 (1965); see also Whitehead v. Gallo, 357 Mass. 215 , 219 (1970) ([I]t is well settled that any uncertainty in the construction of a deed is to be construed against the grantor and in favor of the grantee.). Thus, the court finds that the phrase Original Condition in no way contemplates the restoration of the soil to its pre-existing subsoil profile. [Note 73]
This court is fully satisfied that the aspect of the land to be restored lies strictly above grade, insofar as the required restoration contemplates improvements to the surface, only. In sum, this court finds that Original Condition, or the condition prior to the exercise of the rights granted by this paragraph denotes placement of topsoil / loam and re-vegetation of native species within the Disturbed Area. [Note 74]
To the extent that re-vegetation requires suitable soils, this court finds that the subsoils that were used or placed within the Disturbed Area are suitable to sustain the reestablishment of native species. The soils used in the areas of fill within the Disturbed Area consist of common fill or till soil. Common fill is a clean and compacted dark loamy sand and subsoil mix, commonly used by contractors. Till consists of a mixture of hard packed sandy loam and silty sand, with sections containing pebbles and rocks. It is a common type of soil in New England, and it supports vegetative communities through out the region (collectively the replacement soils). See Findings of Fact, supra ¶¶ 29, 30. The replacement soils are not the same as the original Hinckley or Haven Silt Loam soils. Both original soil horizons are well drained or exceedingly well drained and cause severe mortality of seedlings. [Note 75]
The Brodneys expert, James McClammer (McClammer), undertook a site visit on August 2, 2012, a little over six years after the Brodneys had moved into the property. His purpose was to assess the state of ecological succession on the property. He testified on direct examination that the Hinckley soils are comprised mostly of very sandy material . . . and result in extreme mortality of seedlings because of the fact they dont hold water very well. And so, consequently, when you plant things in sand, unless you have a water table someplace, they wont they dont have the water available and so you have alot of mortality when you plant things. [Note 76] As a consequence, what you would expect [utilizing the original soils] would be very slow re-vegetation naturally to these areas, and youd have more sparse vegetation for a longer period of time. [Note 77]
McClammer took fifteen photographs, of which nos. 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, illustrate the state of re-vegetation within the Disturbed Area. [Note 78] Photographs 5 and 6 depict areas of fill in the Disturbed Area along the driveway. Both photographs depict vigorous greenery, including cultivated evergreens and native herbaceous species. Photographs 4 and 7 are of the Disturbed Area along the driveway by the riprap wall. Native herbaceous species as well as planted evergreens thickly populate the land in photograph 4. Photograph 7 depicts the area in which up to eight feet of knoll was excavated. It shows a wide variety of native herbs, shrubs and tree seedlings. [Note 79] The only part of the land depicted in this photograph that is not densely settled by vegetation, is that portion where the plaintiff constructed a wood chip trail. [Note 80] Photographs 11, 12, and 13 all demonstrate dense re-vegetation of the Disturbed Area with native plant species. Photograph 10 shows the Disturbed Area along the driveway where Bartlett excavated his test pit 10. [Note 81] This picture depicts an area of vigorous plant growth, colonized by native species.
McClammer characterized the state of the revegetation at the area of his site visit as native plant species that are dominating the area and they are thriving quite well. [Note 82] He concluded that the Disturbed Area has been restored to its natural state, that the vegetation is not only there, native species, no invasives, but its also doing quite well; its thriving. [Note 83] He further opined that the replacement soils were not impeding the growth of, or otherwise hindering the development of the vegetative cover on the disturbed Area. [Note 84] Critically, he found that the plants within the Disturbed Area were more prosperous than he would have anticipated. [Note 85]
I find, based upon the uncontroverted [Note 86] evidence presented at trial, and especially the testimony of Mr. McClammer, which I fully credit, that the replacement soils are suitable to foster re-vegetation and reforestation of native species. I further find that the Disturbed Area has been restored to a re-vegetated state. [Note 87]
The Deed states that [a]s promptly as possible after the completion of such construction and grading, the Grantee will recover any portion of Lot A disturbed or otherwise affected by the exercise of this easement with at least four (4) inches of topsoil. This provision is clear insofar as it requires the Brodneys to place at least four inches of topsoil on the Disturbed Area. It is undisputed that the topsoil was not distributed over the Disturbed Area as required. [Note 88]
However, an Order by this court mandating the specific performance of this obligation, would raise practical as well as equitable concerns. This condition became operative once the conditions precedent had occurred, i.e. the completion of construction and grading in 2006. During the intervening period, the Disturbed Area has become re-vegetated with native species and an early successional northern hardwood forest. To require the removal of the now existing plants to place the topsoil would set back the state of re-vegetation and reforestation some six years. [Note 89] Moreover, the court can see little purpose in placing four inches of soil on top of the lush and vigorous plant life presently existing. At most, the soil would accomplish little and be susceptible to erosion; at worst, it would kill off the presently existing ecosystem.
The court finds that it would be inequitable to require the Brodneys to remove the currently existing vegetation and early successional northern hardwood forest. In turn, the court looks to other remedies and considers that which would provide the plaintiff with the benefit of the bargain. The court concludes, therefore, that the Brodneys are liable for the cost of the four inches of topsoil that they were required to spread over the Disturbed Area. [Note 90]
The Brodneys have three exterior lights that are at issue in the present matter. On each side of the garage are identical bracket light fixtures approved by the Planning Board in its Site Plan Decision. In between the garage bays is a motion sensor operated light fixture on a timer, approved by the Planning Board in 2008.
Naiman argues that the Brodneys use of exterior lighting on their property violates Paragraph 6 of the Deed. Paragraph 6 of the Deed states: By accepting this deed, Grantee agrees, for themselves and their successors in title, that any illumination on Lot B will be designed and used so as to minimize impact on Lot A. The plaintiff contends that minimize means to reduce something to the smallest amount or degree or to reduce to the smallest possible amount, extent, size or degree (citing The Oxford Dictionary of English and The FreeDictionary Online, respectively).
In support of his position, at trial Naiman presented his lighting expert, Christopher Hugh Ripman (Ripman). Ripman is the president of Ripman Lighting Consultants and is an architectural lighting designer. He testified as to his interpretation of the covenant in the Deed. He stated on direct examination:
A: In that minimize means reduce the amount of illumination and glare to the extent practical. The farthest that could be carried would be zero. So I interpret that to say I should not be able to stand on Mr. Naimans property and measure light using a sophisticated instrument, not be able to detect measurable light coming from a source on a neighbors property. [Note 91]
Mr. Ripman conducted a site visit in December of 2011 at about 6 p.m. on what was essentially, a moonless evening. He observed that the two lights on either side of the garage were not on timers, and felt that they were unshielded, inasmuch as he could see light emanating from them from his vantage point on Naimans deck, some 20-30 feet above. [Note 92] He also observed that the timed light, located between the garage bays, had an operational duration of five minutes, twenty seconds. [Note 93] Ripman further opined that the wall of the house, from which the lights reflect, is a significant light source. [Note 94] Based upon the listed observations, Ripman opined that the Brodneys lighting was not designed to minimize impact on Lot A.
At that same site visit, Ripman took light readings from Lot A using a T-10/T-10M Illuminance Meter. He stood at what is marked point seven on the plan attached to Exhibit 34, which is near the southerly most point of Lot A, approximately 100 feet from the Brodneys garage. [Note 95] At that point, he measured the amount of light emanating from the three light fixtures on the Brodneys garage. He determined that .004 foot-candles of light reached his location. [Note 96] A foot-candle is a measurement of light. One foot-candle is technically defined as a lumen per square foot, or put in other words, the amount of light it would take to fill a sphere having a one-foot radius. [Note 97] For reference, during broad daylight, the sunlight ranges between 6,000 to 10,000 foot-candles. Whereas, twilight produces about 1 foot-candle, and the full moon .01 foot-candle. [Note 98] On cross-examination, Ripman was asked to place .004 foot-candles into perspective:
Q: So how much light are we talking about for four thousandths of a foot-candle?
A: If you were holding four candles 100 feet away from the point of reference, that would be the amount of light that youre that I was measuring.
Q: So thats what were talking about here; four candles from 100 feet away?
A: Thats correct. [Note 99]
In Plaintiffs Post-Trial Memorandum the plaintiff acknowledges that . . . the measurements themselves were in hundredths-of-a-foot-candle and might be dismissed by some as inconsequential . . . . [Note 100]
Along with his testimony, Ripman produced three photographs. These photographs display the Brodneys garage in the evening. The first photograph was taken at point 6 (within 10 feet of point 7) without any zoom lens, and displays the garage while the two bracket lights are on. The second two photographs were taken with zoom, and were admitted for the limited purpose of showing detail only. The first picture, Exhibit 32, displays a modest amount of light emanating from the brackets, only illuminating the face of the garage itself, an area of the driveway located peripherally to the garage, and a small part of the adjacent lawn.
Lawrence and Myra Brodney both testified at trial as to their use of lighting. Lawrence Brodney testified that Monday through Friday, during the time of year when it is dark throughout the relevant time period, his wife Myra will turn the fixed bracket lights on at 6 a.m. when she embarks on her morning jog. The lights remain on for about 15 or 20 minutes. Myra Brodney then turns the fixed bracket lights on when she returns to the house from work at between 5 p.m. to 5:30 p.m. The lights are then turned off when Lawrence Brodney comes home from work, at around 6:30 p.m. He also stated that the exterior light use was only operative when it is dark out at those times. [Note 101] Myra Brodney corroborated her husbands testimony, with the addition that on the weekend the use varies somewhat, in that when they are away, the lights are not used, and that the lights would come on later in the morning when they are home. [Note 102]
Naiman testified that while the lights are not on all the time, [Note 103] he has observed them on as early as 3:45 in the afternoon. He also reported that the lights stay on sometimes as late as 8 or 9 p.m., sometimes later. He commented that the lights have been left on all night in the past. [Note 104] This court credits the Brodneys account as to their own usage of the lighting. I find that their use is neither excessive nor unreasonable. I further find that even if Naimans account as to the Brodneys use of the lights were accurate, it still would not violate any provision of the Deed inasmuch as the amount of light generated by the fixtures at issue, is objectively de minimis.
The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances. Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998), citing J.S. Lang Engr. Co. v. Wilkins Potter Press, 246 Mass. 529 , 532 (1923); see also Suburban Land Co. v. Billerica, 314 Mass. 184 , 189-90 (1943); Barchenski v. Pion, 9 Mass. App. Ct. 896 , 896 (1980). The Deed provides that any illumination on Lot B will be designed and used so as to minimize impact on Lot A. The plain and ordinary meaning of this restriction is that the illumination on Lot B must be used and designed so as to reduce its effect on Lot A. See Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640 (2000) ("Where the language of a statute is clear, courts must give effect to its plain and ordinary meaning and the courts need not look beyond the words of the statute itself.").
By any reasonable standard, the Brodneys lighting fixtures are in full compliance with the Deed covenants. The court disagrees with Ripman and the plaintiff, both of whom effectively equate the phrase minimize impact or illumination with zero or no impact or illumination. [Note 105] As a practical matter, Lot B has been sold and developed for residential use. As Lot B is no longer given over primarily to woodlands, there will of necessity be some illumination, exterior as well as interior, emanating from the residence on Lot B. [Note 106] As it is now, the amount of light originating from the three light fixtures is minimal. The pictures taken by Ripman clearly depict a limited amount of light emanating from the fixtures. By any objective standard, the light reaching the periphery of Lot A, measured at .004 foot candles, is miniscule.
The Brodneys testified that the present amount of light issuing from the three fixtures does not adequately address their safety concerns. Foremost among these concerns is the significant, twenty foot drop-off beyond their backup spot / parking area. Both Lawrence and Myra Brodney testified that the current lighting does not illuminate this area and requires them to escort guests to their cars using flash lights. [Note 107] A further reduction in the Brodneys lighting would significantly exacerbate what this court finds to be legitimate, existing safety concerns. As a consequence, no reduction in the degree of current illumination will be required.
Ripmans testimony that there may be other lighting choices that may further lessen the impact of illumination on Lot A does not mean that the existing lighting on Lot B does not conform to the standard set forth in the covenant. Here, the Planning Board has required that the Brodneys use Dark Sky compliant fixtures, mandated the wattage of at least one of the fixtures, and required that the center light be on a sixty second timer. The Planning Board has also limited the Brodneys to those three lights, having required the removal of their solar lights along the driveway. The current lighting on Lot B, as approved by the Planning Board, and operated in a manner consistent with the standards established by that Board, is intended to minimize any impact on Lot A. This court finds that the current lighting configuration more than achieves that goal.
2. G.L. c. 40A, §17
On April 28, 2008, Naiman appealed to the Town of Lincoln Board of Appeals (Zoning Board) from the Building Commissioners response to his enforcement request. He sought further action on the Brodneys alleged zoning violations, along with their alleged violations of the Special Permit Decision and the Site Plan Decision. Specifically, he sought enforcement of a condition of the Special Permit Decision which required the Disturbed Area on Lot A to be regraded, restored, and reseeded. He sought too, the enforcement of the relevant aspects of the Site Plan Decision as to Lot C together with the enforcement of Bylaw § 13.5 Exterior Lighting as to the lighting on Lot B. The Zoning Board held public hearings on May 15, June 19, and August 14, 2008; the members conducted a site visit, as well.
The Zoning Board promulgated its Decision on September 8, 2008. In so doing, it found that the lighting issues had been resolved by the Planning Boards subsequent Determinations of Minor Changes dated May 14, 2008, and July 9, 2008. The Zoning Board understands that the Brodneys have made the lighting changes as required by the Planning Board. [Note 108] The said Board concluded its Decision as detailed in paragraph 24 above.
Naiman has appealed the Zoning Board Decision pursuant to G.L. c. 40A, § 17, alleging that it was arbitrary, capricious, whimsical and legally untenable. At trial, he argued that the Zoning Board incorrectly interpreted the condition in ¶ 8 of the Special Permit Decision, requiring that the Disturbed Area be regraded, restored, and reseeded, and that it improperly determined that the Brodneys lighting was in compliance with the Planning Boards Determination of Minor Changes and with the Zoning Bylaw.
On appeal of a zoning enforcement decision under G. L. c. 40A, § 17, the court is obliged to find facts de novo. At the same time, it may give no weight to those facts found by the Board below. See Green v. Bd. of Appeal of Norwood, 358 Mass. 253 , 256 n.2 (1970); Sheehan v. Zoning Bd. of Appeals of Plymouth, 65 Mass. App. Ct. 52 , 56 (2005); Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003). Though its review of the facts must be de novo, this court must also accord the decision below an appropriate level of deference. Thus, this court may only disturb those decisions that are based on legally untenable grounds, or [are] unreasonable, whimsical, capricious or arbitrary. Id. at 639. [Note 109]
[J]udicial review typically requires two principal inquiries, one of which involves an almost purely legal analysis and the other of which involves a highly deferential bow to local control over community planning. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. at 73. Thus, this court is to use a legal analysis . . . to decide whether the boards decision was based on a legally untenable ground, or, stated in a less conclusory form, [was based] on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Id., citing, e.g., MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970).
The standard of review is deferential only to the extent that the court gives some measure of deference to the local boards interpretation of its own by-law [although, i]n the main, . . . the court determines the content and meaning of statutes and by-laws and then decides whether the board has chosen from those sources proper criteria and standards to use . . . . Britton, 59 Mass. App. Ct. at 73, quoting APT Asset Mgmt. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000). Under this phase of review, the decisional law concerning the interpretation of zoning bylaws provides the relevant and applicable standards.
Thus, [w]here the language of a [bylaw] is clear and unambiguous, it is conclusive as to legislative intent, and the courts enforce [it] according to its plain wording, which [they are] constrained to follow so long as its application would not lead to an absurd result. Martha's Vineyard Land Bank Commission v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004), quoting Pyle v. Sch. Comm. of S. Hadley, 423 Mass. 283 , 285 (1996); Weitzel v. Travelers Ins. Cos., 417 Mass. 149 , 153 (1994); Commr of Rev. v. Cargill, Inc., 429 Mass. 79 , 82 (1999) (internal quotations and citations omitted).
The Zoning Board found that the Brodneys had complied with the Planning Boards requirements as to lighting. In its Site Plan Decision, the Planning Board, included several conditions, of which the third is pertinent. It provides as follows:
Unless otherwise specifically approved by the Planning Board, all proposed exterior lighting shall meet the standards of the Dark Sky Initiative (www.darksky.org) and the Zoning Bylaw Section 13.5 Exterior Lighting.
At the time of its Site Plan Decision, the Planning Board had approved the light fixtures which are located on either side of the Brodneys garage. [Note 110] The current center light, appearing to be of metal construction, with opaque shielding on its sides and top, with an opening at the bottom, was subsequently approved by the Planning Board on June 18, 2008.
Naiman argues that the Brodneys lights, although approved by the Planning Board, do not meet the Dark Sky criteria or the standards enunciated in the Bylaw. The plaintiffs lighting expert, Christopher Hugh Ripman, testified regarding Dark Sky Compliance and the Zoning Bylaw. The Dark Sky Initiative is a set of standards used by communities to restrict exterior light. Ripman stated that the initiative requires exterior light sources to be shielded and have a full cut off, so as to prevent light emission over the horizontal plane. [Note 111] He conducted a site visit in December of 2011, see discussion supra, at which time he took readings of the illumination cast from the Lot B lights onto Lot A and took several photographs.
Ripman testified that the Brodneys lights were inconsistent with the Dark Sky initiative. He was unable to directly examine the lights, and based his opinion upon his observations from (a) Naimans bedroom, which is about 250 feet away and 20 to 30 feet above the fixtures, and from (b) the aforementioned points 6 and 7 on Lot A. [Note 112] See Exhibit 34. Ripman testified that from those points, he saw light emanating above the fixtures, leading to the conclusion that they are unshielded, which would be inconsistent with the Dark Sky Initiative. In support of his testimony, he supplied exhibit 32, which is a photograph of the Brodneys garage with the bracket lights on. It was taken by Ripman from point 6 on Lot A.
Contrary to the assertions of the plaintiff and his expert, this photograph does not support the conclusion that the lights are unshielded and are therefore not Dark Sky compliant. No Dark Sky standards or a Dark Sky manual were admitted at trial in order to allow the court to ascertain with absolute certainty what constitutes a Dark Sky compliant lighting fixture. [Note 113] Moreover, the photograph clearly displays a dark area above each light, suggesting that the fixtures are in fact, properly shielded. Testimony was adduced regarding the manufacturers catalogue cut of the bracket light fixtures at issue. The relevant pages referred to such fixture as a Santa Barbara Dark Sky 1-Light Outdoor Wall Lantern. [Note 114] Also submitted was a day time close up photograph of the light fixtures which showed them as having glass which appears at, at very least, to be heavily frosted [Note 115] together with a metal lid on top of each fixture. [Note 116] The court is satisfied, based on the credible evidentiary record before it, that the lighting fixtures at issue are Dark Sky Initiative compliant.
Naiman also argues that the Brodneys lights do not comply with Bylaw § 13.5. Section 13.5 captioned Exterior Lighting recites in pertinent part, as follows:
All artificial lighting installed in any district, shall be so installed or shielded as to prevent direct light or glare from the light source from interfering with the vision of motorists or pedestrians passing in the street or streets abutting the premises and as to prevent direct light or glare from illuminating neighboring properties. Naiman asserts that the Brodneys lighting fixtures violate this Bylaw provision
because they create measurable incident illumination on Lot A, as well as disability glare. Ripman found that the Brodneys lights directly illuminate Lot A. He interpreted the direct light component of the Bylaw to mean that if he could measure light coming over the boundary from the neighboring property, [the light] is nonconforming. [Note 117] Stated differently, Ripman interpreted the Bylaw so that a conforming light reading would be zero foot-candles. [Note 118] As discussed supra in connection with the Brodneys duties under the Deed, Ripman used a T-10/T-10M Illuminance Meter to take light readings at point 7 on the Exhibit 34 plan, which is about 100 feet from the Brodneys garage, near the southerly most point of Lot A. He determined that the Brodneys lights generated .004 foot-candles of light which reached Lot A. From that measurement, he concluded that the lights violated the direct light prohibition in the Bylaw. [Note 119]
Recognizing that the Bylaw mandates the prevention of direct light or glare, Ripman testified as to the technical definition of glare. He defined glare as stray light not related to any need that I personally have . . . that gets into my eye, diffracts off the particulate matter inside the eyeball, casts light on the retina, and makes it more difficult to see the things that I want or need to see. [Note 120] He testified that there are two varieties of glare, disability and nuisance. Disability glare was defined as occurring when the glare actively interferes with the performance of a task, and nuisance glare as that which is annoying, but doesnt actually interfere with the performance of tasks or endanger your safety. [Note 121]
Ripman opined further, that the Brodneys lighting casts disability glare on Lot A. He stated that the Brodneys lights interfered with his perception, and that when the lights were in his field of view he was unable to navigate Naimans foot trails on Lot A without feeling at risk. [Note 122] Predicated upon his opinion concerning disability glare, Ripman opined that the Brodneys light fixtures were in violation of the Bylaw.
The court credits Mr. Ripmans testimony only to the extent of his objective measurement of .004 foot-candles of light upon a limited portion of Lot A. It credits neither his legal conclusions nor those subjective conclusions regarding the purported presence of disability glare and its attendant risk as he sought to navigate portions of Lot A. [Note 123]
Section 13.5 of the Bylaw provides in relevant part that [a]ll artificial lighting installed in any district, shall be so installed or shielded as to prevent direct light or glare . . . from illuminating neighboring properties. The language of the bylaw is unambiguous, and must construed utilizing the plain meaning of its words.
The pertinent language here is direct light or glare. The American Heritage College Dictionary (4th ed. 2002) defines glare as [t]o shine intensely and blindingly. It is evident that the Bylaw seeks, inter alia, to prevent direct light or intense light from illuminating neighboring properties. Turning to the existing lighting conditions, this court finds that the Brodneys lighting is in full conformity with § 13.5 of the Lincoln Zoning Bylaw. It further finds that given the nature of the lighting fixtures at issue, the light emanating from the Brodney garage fixtures is not of the direct or intense variety insofar as each lighting fixture is well shielded. Moreover, this court is satisfied that the Bylaw was intended to prevent a far greater intrusion or intensity of light than is provided by .004 foot-candles of incident illumination reaching a neighboring property. [Note 124]
Naiman contends that the Zoning Board incorrectly interpreted ¶ 8 of the Special Permit Decision when it (a) determined that the fill used did not have to be removed, and (b) ordered the Brodneys to provide the plaintiff with a gift certificate representing the cost of topsoil to be spread over the Disturbed Area. The relevant Special Permit condition states that:
Lot A shall be subject to the following grading and other easements for the benefit of Lot B:
a. a permanent easement for the driveway to any dwelling unit to be erected on Lot B, such easement to be located so to preserve and maintain existing and mature trees;
b. temporary easements shall be granted for the grading and construction of said driveway. All disturbed areas used for temporary construction easements over Lot A shall be regraded, restored and reseeded within ninety days after the completion of the construction of said driveway.
At issue specifically, is ¶ 8(b), where it states that the disturbed area used for construction easements shall be regraded, restored and reseeded within ninety days after the completion of the construction of said driveway. Naiman asserts, much as he did when arguing the meaning of the phrase Original Condition, that the requirement to restore as referenced in the Planning Boards conditions, requires the Brodneys to remove the presently existing early successional northern hardwood forest, excavate out the fill used as subsoil, and replace the subsoil with soils consistent with the naturally occurring soil profileHaven Silt Loam or Hinckley Soils. The Brodneys are then to replant a cover crop. Just as this court was unpersuaded by the plaintiffs argument in construing the meaning of the phrase Original Condition, so too, does it find the similar argument unpersuasive in this context.
The requirements set forth in the condition that there be regrading and reseeding refers to activities that occur at or near the surface of the ground. Re-grading in this context means to make level. Construing the word restored in conjunction with these other terms, it is clear the Planning Board structured the condition so as to obligate the Brodneys to restore the surface of the land. This court is simply unable to read this condition as imposing a duty on the Brodneys to replace subsoils.
Based upon the foregoing, this court will Affirm the Decision of the Zoning Board, finding that it is neither legally untenable, nor is it unreasonable, arbitrary, capricious or whimsical. Rather, the Decision is based upon a rational view of the operative facts. It is entitled, moreover, to due deference, with the principle in mind that a local board of appeals brings to the matter an intimate understanding of the immediate circumstances, of local conditions, and of the background and purposes of the entire by-law. Fitzsimmons v. Bd. of Appeals of Chatham, 21 Mass. App. Ct. 53 , 57 (1985). This court sees no basis upon which to disturb the Decision of the Zoning Board.
In his Amended Complaint, the plaintiff advances claims for trespass and damages. The Brodneys driveway indisputably encroaches to some extent onto Lot A. [Note 125] At the heart of an action for trespass to real property is the principle that the defendant intentionally entered the land of another, without privilege to do so, regardless of any harm caused to the land. Gage v. Westfield, 26 Mass. App. Ct. 681 , 695 n.8 (1988).
The tort will be actionable even where the trespasser is ignorant that his invasion violates the title or right of possession of the plaintiff. United Elec. Light Co. v. Deliso Const. Co., 315 Mass. 313 , 318 (1943). An ongoing invasion of the plaintiffs land without legal right may constitute a continuing trespass, and an "intentional and continuing trespass to real estate may be enjoined . . . . Damages are usually inadequate because the plaintiff is not to be compelled to part with his property for a sum of money." Chesarone v. Pinewood Builders, Inc., 345 Mass. 236 , 240 (1962); see also Massachusetts Practice, Summary of Basic Law, c.14 § 17.24. In any event, in his post-trial brief, the plaintiff seeks removal of the encroachment, rather than actual monetary damages. [Note 126]
After trial, the precise extent of the encroachment remained unresolved. The plaintiffs expert surveyor John Hamel, P.L.S. (Hamel), testified and provided a plan showing that the driveway encroaching by 112.1 square feet onto Lot A. [Note 127] Nevertheless, questions of accuracy arose concerning the Hamel Plan, inasmuch as Hamel was working from a scanned plan, not the original in CAD format. [Note 128] At trial, in responding to an inquiry from the court, plaintiffs counsel observed as follows:
I think were just concerned about . . . the accuracy of the survey that was done. Theres been a difficulty, Your Honor, for example, in obtaining a CAD format of the survey that was done, the original survey that was done, to determine the appropriate location of the driveway, the easement . . . .
. . . We were provided with a hard copy of it, but it makes it all the more difficult without a CAD format to compare what was permitted to what was actually constructed. So I dont mean to be so petty as to make reference to an inch or a centimeter, but certainly there has been difficulty in determining with specificity the exact degree of the encroachment without access to that survey. [Note 129]
In view of the forgoing, this court will order the removal of the encroaching portion of the Brodneys driveway at their expense, once the extent of the said encroachment has been determined. [Note 130]
The defendants have asserted a counterclaim in two counts. The first is captioned Count I (Breach of Contract). The defendants, plaintiffs-in-counterclaim, allege, inter alia, that the parties held settlement meetings between July 1, 2008 and July 17, 2008 and that settlement correspondence was exchanged between the parties and/or their representatives and/or representatives of the Town of Lincoln in August of 2008. [Note 131] They allege further that a settlement agreement was reached between the parties concerning Lot A, Lot B, and Lot C, including an agreement as to all outstanding issues concerning Lot C and that the parties would, with respect to any open issues concerning Lot A, would [sic] abide by the decision of Defendant Zoning Board of Appeals of the Town of Lincoln. However, this court notes in this regard that the Brodneys submitted two letters, each dated August 1, 2008 [Note 132] to the Board of Appeals. The first letter concerned Lot A, the second, Lot C. In the first letter concerning Lot A, the Brodneys make the following observation:
During 2 lengthy meetings between the Brodneys and Mr. Naiman and his lawyer, Lot A was discussed. No resolution was reached nor can there be a resolution until the area in question is properly defined . . . [Naimans] calculations are so off the mark as to make any discussion of this area impossible.
In the second letter Concerning Lot C, the Brodneys recite the following:
There have been two lengthy meetings . . . . No final agreement was reached and the meetings broke down . . . . There are reasonable compromises to be made, but all parties must be willing to progress. [Note 133]
This court is satisfied, given the state of the trial record, that there is insufficient evidence to sustain the claims of the plaintiffs-in-counterclaim as alleged in Count I. Count II of the counterclaim purports to set forth in somewhat vague terms, a claim in the nature of estoppel. This allegation is predicated upon representations, conduct and/or omissions including engaging in global settlement discussions upon which the defendants claim to have relied to their detriment. Once again, this court is satisfied that there is lacking on the trial record credible evidence to sustain such a claim.
In view of the foregoing this court concludes as follows:
a) As specified herein, the Decision of the Zoning Board of Appeals for the Town of Lincoln is AFFIRMED.
b) The counterclaim of the defendants, the plaintiffs-in-counterclaim, is hereby DISMISSED.
c) The Brodneys shall, at their expense, remove such portions of their driveway that encroach beyond the easement area on Lot A, as shown on the plan of March 9, 2005 prepared by Schofield Brothers of New England, Inc. and annexed to the Brodneys deed. While the extent of the encroachment is estimated at 112.1 square feet, the exact area of encroachment will be as verified and confirmed by the said Schofield Brothers of New England, Inc. The area of Lot A from which the encroachment has been removed will be loamed and seeded, as appropriate, at the Brodneys expense.
d) While the Brodneys are obliged to distribute four inches of topsoil over the Disturbed Area, this court concludes that it would be inequitable to order such action, owing to the re-vegetation of the area in question. Accordingly, the Brodneys will pay the plaintiff a sum [Note 134] equivalent to the cost of one hundred cubic yards of loam, as set forth in the Decision of the Zoning Board. [Note 135] e) The Brodneys are under no obligation to further restore areas of Lot A that may have been disturbed as a result of the construction of their dwelling and driveway. [Note 136]
f) This court is satisfied, based upon the credible evidence adduced at trial that the lighting on the Brodney garage, as it currently exists, is in compliance with both the criteria set down by the Planning Board and with the relevant Deed covenants.
g) In his post-trial brief, the plaintiff seeks renumeration for the devaluation of Lot C owing to certain actions of the defendants. This court has addressed supra the plaintiffs standing to maintain an action regarding Lot C. As previously observed, [Note 137] the plaintiff, either in his individual capacity or as Trustee of the Transition States Realty Trust, possesses no ownership interest in that parcel. He is otherwise without authority to act on behalf of the Trust or its beneficiaries, with regard to Lot C.
Even were it otherwise, the plaintiff has presented no satisfactory evidence concerning the market value and purported devaluation of Lot C. He has therefore failed to meet the exacting burden of proof required of him. It is the view of this court that, at a minimum, the testimony of one or more persons possessing the requisite expertise, such as an appraiser, would be required for the plaintiff to meet his burden. Such testimony is lacking. Consequently, this court sees no basis upon which to require the Brodneys to provide the requested renumeration.
Judgment to enter accordingly.
[Note 1] Exhibit 1, February 17, 2004 Approval of Cluster Subdivision Special Permit. (Exhibit 1)
[Note 2] Id.; Exhibit 2, 2004 Cluster Plan of Land Middlesex South District Registry of Deeds (Registry) Plan 324 of 2005 (Exhibit 2).
[Note 3] Exhibit 2.
[Note 4] Exhibit 3, Grant of Conservation Restriction, May 28, 2004.
[Note 5] See III. PROHIBITED, REQUIRED, AND PERMITTED ACTS AND USES AND EXCEPTIONS THERETO, Exhibit 3, Grant of Conservation Restriction, May 28, 2004.
[Note 6] The Conservation Restriction further explicitly permits clearing and grading on Lot C within 50 of the southern boundary as related to Lot B construction, removal of certain trees and brush pursuant to a May 28, 2004 letter, and creation of small piles of brush associated with permitted uses. Exhibit 3, Grant of Conservation Restriction, May 28, 2004.
[Note 7] Exhibit 3, Grant of Conservation Restriction, May 28, 2004.
IV. LEGAL REMEDIES OF GRANTEE:
A. Legal and Injunctive Relief
The rights hereby granted shall include the right to enforce this Conservation Restriction by appropriate legal proceedings and to obtain injunctive and other equitable relief requiring restoration of the Premises [Lot C] to its condition prior to the time of the injury complained of (it being agreed Grantee may have no adequate remedy at law), and shall be in addition to, and not limited of, any other rights and remedies available to Grantee. Grantor and Grantee agree that, should Grantee fail to enforce any provision of this Conservation Restriction, the town of Lincoln Conservation Commission may, upon sixty (60) day prior written notice to Grantee, undertake such enforcement.
[Note 8] Registry, Book 44833 Page 363. Exhibit 5 March 18, 2005 Lot B Quitclaim deed.
[Note 9] Subsection iii was omitted from the Deed.
[Note 10] Exhibit 6, Lot C Deed, Registry, Book 44833, Page 368.
[Note 11] The Owners of Lot A and Lot B have a view easement over Lot C to Farrar Pond. It allows limited rights to fell specified trees within the View Corridor. Exhibit 1, February 17, 2004 Approval of Cluster Subdivision Special Permit, ¶ 11; Exhibit 3, Grant of Conservation Restriction, May 28, 2004; Exhibit C, Letter to Naiman from LLCT re Tree Clearing Middlesex South District Deeds Book 444833, Page 337.
[Note 12] Exhibit 4, March 18, 2005 Declaration of Trust, Registry, Book 44833, Page 351 (emphasis added).
[Note 13] Exhibit 15, Town of Lincoln Zoning By-Law. Specifically, Bylaw sections 6.0.1 and 17.7 pertain to the Brodneys development of their lot. Section 6.0.1 states: No site alteration or site development work including, but not limited to removal of vegetation, soil excavation, or grading shall be performed on an undeveloped or vacant lot prior to Planning Board approval of a site plan therefore, in accordance with Section 17.7 of this By-law. Section 17.7 sets out detailed criteria for the Planning Board to ascertain whether or not site plan approval ought to be granted, and as to what conditions are to be included within the grant thereof, the specifics of which do not directly pertain the to the case at bar.
[Note 14] (emphasis added). The Town of Lincoln Zoning Bylaw § 13.5, Exterior Lighting states:
All artificial lighting installed in any district, shall be so installed or shielded as to prevent direct light or glare from the light source from interfering with the vision of motorists or pedestrians passing in the street or streets abutting the premises and as to prevent direct light or glare from illuminating neighboring properties.
[Note 15] Tr. 2-221:4-15.
[Note 16] Tr. 2-214:16-19; Exhibit 16-4 Photograph of Lot B site preparation.
[Note 17] Tr. 4-29:5-8.
[Note 18] Tr. 4-31:2-7.
[Note 19] Tr. 4-38:18,19.
[Note 20] Exhibit 29, 2005 Site Plan of Land, Schofield Bros.
[Note 21] Tr. 3-82:9-16.
[Note 22] Exhibit 29, 2005 Site Plan of Land, Schofield Bros; Tr. 4-32:10-15; Exhibit 16-5 Photograph of Lot B During Construction Showing Retaining Wall and Valley.
[Note 23] Tr. 4-13:12-14; 4-24:2; Exhibit 8 2008 Site Plan, Snelling & Hamel Associates, Inc.
[Note 24] Exhibit 8 2008 Site Plan, Snelling & Hamel Associates, Inc.
[Note 25] Defendant's Post Trial Brief, at 6.
[Note 26] Tr. 4-48:7-24, 4-49:1-15; Tr. 1-95:5-24, 1-96:1-7.
[Note 27] Exhibit 9, February 19, 2008 LLCT Violations of Conservation Restriction Letter.
[Note 28] Exhibit 10, 3/14/08 Zoning Enforcement Request.
[Note 29] Exhibit 11, 3/25/08 Letter in Response to Zoning Enforcement Request.
[Note 30] Tr. 4-54:1-24, 4-55:1, 15-24; Exhibit 13, September 8, 2008 ZBA Decision.
[Note 31] Exhibit 12, April 23, 2008 Appeal to ZBA of Response to Zoning Enforcement Request.
[Note 32] Exhibit 13, September 8, 2008 Zoning Board of Appeals Decision.
[Note 33] Tr. 2-118:3; 2-255:1; 1-253:14-18; 1-254:7-10.
[Note 34] Exhibit 26, Field Investigation Test Pits Plan; see also testimony regarding Natural Resource Conservation Service soil mapping at Tr. 1-253:5-12, 2-254:16-20.
[Note 35] Exhibit 26, Field Investigation Test Pits Plan.
[Note 36] Tr. 1-254:15-20.
[Note 37] Tr. 2-69:1-24; 2-70:1-20; Exhibit 13, September 8, 2008 Zoning Board of Appeals Decision (approximating total disturbed area at 5400 square feet).
[Note 38] Exhibit 26, Field Investigation Test Pits Plan; see also Findings of Fact, supra ¶ 15. The plaintiff hired Mark Bartlettpresident of Norfolk-Ram Group, LLC, licensed professional engineer, and certified soil expertwho dug fourteen Test Pits on Lot A and Lot C. At each pit, he catalogued the soil composition and documented whether or not the soil present was consistent with Hinckley or Haven Silt Loam soil. He also noted the presence, or lack thereof of topsoil. See Tr. 1-274 through 2-28; Exhibit 25, Plan Showing location of Test Pits; Exhibit 26, Plan Showing Test Pit Notes; Exhibit 27, Photographs A-R Showing Test Pits with Notes.
[Note 39] Tr. 1-295:9-13; Tr. 1-276:12-22. On direct examination, Mark Bartlett testified regarding dozer till as follows:
A You get down below that and you get into this as I described, a mixed hard-packed sandy loam and silty sand. I called it in parenthesis as a dozer till and for the sake of
Q What did you mean by the term dozer till?
A Its a very and I expressed this to Mr. Naiman at the time its just the only way I could come up with words to describe this. It was clearly a till, till implies a glacial till or a till is a mix. Its been mixed by glaciers and by dozers, bulldozers; its a mix. And it was done by a dozer.
Test Pit 9 had at least one small piece of brick in it. Exhibit 27N Photograph of Test Pit 9 Area of deep fill of dark, loamy sand subsoil mix with stones and pieces of brick.
[Note 40] Tr. 2-13:1; 2-16:5-13.
[Note 41] Tr. 1-292:9-24.
[Note 42] Tr. 3-17:1-12; 3-18:18-23.
[Note 43] Tr. 3-18:4-10.
[Note 44] Defendants Post Trial Brief, at 26.
[Note 45] Exhibit 27, Photographs of Norfolk-Ram Soil Test Pits, dated November 11, 2011. In the Norfolk-Ram photographs re-vegetation in the disturbed area is evident, including the areas of fill. Exhibit 30, Connecticut Valley Environmental Services Photographs dated August 2, 2012, photographs 4-15 showing re-vegetation in the disturbed area. Tr. 3-24:5-18.
[Note 46] Defendants Post Trial Brief, at 32-33.
[Note 47] See Testimony of Mark Bartlett, president of Norfolk-Ram Group, LLC, licensed professional engineer and certified soil expert, Tr. 2-71; 2-78-80; Plaintiffs Trial Exhibit T, Table 4, Soil Remediation Estimates. While Trial Exhibit T was not admitted, Bartlett read from it during his testimony and discussed his findings in relation to it.
[Note 48] See Plaintiffs Post Trial Brief, at 31.
[Note 49] Exhibit 4, March 18, 2005 Declaration of Trust, Middlesex South District Deeds Book 44833, Page 351; E.C. Mendler, Massachusetts Conveyancers Handbook §16:15. (4th ed. 2008); see also Roberts v. Roberts, 419 Mass. 685 , 687 (1995) (Unlike . . . a [traditional trust] the trustees of a nominee trust have no power, as such, to act in respect of the trust property, but may only act at the direction of . . . the beneficiaries.) (internal citations omitted).
[Note 50] Exhibit 4, March 18, 2005 Declaration of Trust, Middlesex South District Deeds Book 44833, Page 351.
[Note 51] See Plaintiffs Post Trial Brief, at 2 ([Naiman] seeks enforcement of the covenants found in deeds . . . as well as the terms and conditions of the conservation restriction applicable to Lot C.).
[Note 52] Exhibit 3, Grant of Conservation Restriction, May 28, 2004.
[Note 53] If no action is taken by the LLCT, such rights are, in turn, vested in the Town Conservation Commission.
[Note 54] Exhibit 3, Grant of Conservation Restriction, May 28, 2004.
[Note 55] Plaintiffs Post Trial Brief, at 26.
[Note 56] Mark Bartlett is a certified soil evaluator, licensed professional engineer, and president of Norfolk-Ram Group, LLC.
[Note 57] The average depth is about two feet. See Exhibit 26, Plan Showing Test Pit Notes.
[Note 58] Bartlett excavated fourteen test pits within the Disturbed Area. At each pit, he catalogued the soil composition and documented whether or not the soil present was consistent with Hinckley or Haven Silt Loam soil. He also noted the presence, or lack thereof of topsoil. See Tr. 1-274 through 2-28; Exhibit 25, Plan Showing location of Test Pits; Exhibit 26, Plan Showing Test Pit Notes; Exhibit 27, Photographs A-R Showing Test Pits with Notes.
[Note 59] The soils in this area have three layers, or horizons, an A layer of loam, a B layer of subsoil, and a C layer containing sand and gravel. See Tr. 1-254 through 1-255.
[Note 60] The American Heritage College Dictionary (4th ed. 2002) defines grading as To level or smooth to a desired or horizontal gradient :bulldozers graded the road. Compare Finish Grade which is defined as Any surface which has been cut to or built to the elevation indicated for that point. Surface elevation of lawn, driveway or other improved surfaces after completion of grading operations. http://www.engineering-dictionary.org/NCRS-Construction-Dictionary/FINISH_GRADE
[Note 61] Thus, the court finds the plaintiffs reliance on the dictionary definitions of restore to be somewhat inapposite as the land, by the acts of construction and grading, has been fundamentally and irreversibly changed. Moreover, this finding is supported by the testimony of the plaintiffs expert Mark Bartlett, who testified on cross examination that:
Q And would you agree with me that however you want to interpret this language in the deed to restore the area disturbed or affected as nearly as practical to its Original Condition, theres just no way that the Brodneys were ever going to practically restore the preexisting forest that was on their property prior to construction; would you agree with that statement?
A Again, I wouldnt expect them to restore a forest as it was prior; thats very difficult to do. Tr. 2-113:15-23.
[Note 62] Naiman testified at trial on cross examination as to what his planting plans are in the Disturbed Area on Lot A.
Q What result are you trying to achieve here?
A When the proper soils are there, I will plant a row of screening, although I think the Brodneys should probably pay for that because theyd be there and big. And my intention was to plant, if it matters, asparagus and grapes on the remaining area.
Q So youd prefer to have asparagus and grapes growing along the Brodneys driveway rather than these native species?
A No. A row of screening along the driveway and then my own plantings. And, you know, they could be whatever I want; I was telling you. But I would like the freedom to plant just as I do above there and have it work, which it doesnt do now.
Q So the way you are interpreting the covenant to restore this area as nearly as practicable is that you would want some sort of asparagus and grapes along the Brodneys driveway?
A No. No, I told you. Thats an example. I want the soils made right, loamed and stabilized. After that, many, many things can happen. . . . And on my land Ill do the kind of planting I do at my discretion.
Tr. 1-164:17-24, 1-165:1-15.
[Note 63] Tr. 4-81:24, 4-82:1-7.
[Note 64] The requirement that the Brodneys place topsoil upon the Disturbed Area is undisputed.
[Note 65] Tr. 1-140:5-20.
[Note 66] Tr. 141:9-17.
[Note 67] Exhibit 12, April 23, 2008 Appeal to ZBA of Response to Zoning Enforcement Request.
[Note 68] Exhibit 19, Letter to Macone Bros. Notably, Naiman admits in his post-trial reply brief that his objective was that the land be restored in such a fashion as to permit him to plant, garden and landscape thereupon. He further acknowledges that the degree of restoration demanded by him in this suit was not explicitly foreseen during the parties negotiations on the sale of Lot B or even immediately thereafter.
[Note 69] Tr. 2-104:18-24.
[Note 70] Tr. 2-107:16-24, 2-108:1.
[Note 71] Tr. 2-216:12-24; 2-217:1-4.
[Note 72] Tr. 4-21:21-24; 4-22:1-10.
[Note 73] The court notes that restoration is to be as nearly as practical to its Original Condition. (emphasis added) Assuming, solely for the sake of argument, that Naiman is accurate when he asserts that Original Condition refers to the original soil profile and that the Brodneys are therefore obligated to replace the existing soil with Hinckley or Haven Silt Loam, the fact remains that such an approach is highly impractical.
The American Heritage Dictionary (2d College ed. 1985) defines practical as capable of being used or put into effect; with a notation on usage that practical describes that which is also sensible or worthwhile. The court agrees that remediating the common fill or till out of the Disturbed Area and replacing the remediated soil with Hinckley or Haven Silt Loam may be physically possible, but disagrees that it is practical.
Bartlett testified that such remediation would entail removal of 152 cubic yards of fill utilizing three pieces of heavy construction equipment, including a 20 cubic yard dump truck, a rubber tire backhoe, and a front end loader. He anticipated that it would require seven and a half dump truck loads to remove the fill. It would also require several men to operate the equipment, as well as a Massachusetts Certified Soil Evaluator to oversee the operations. He noted that it would likely take 172 cubic yards or eight and a half truck loads of imported Hinckley Soil to remediate the fill soils. Bartlett further testified that the work and the heavy equipment could potentially damage the Brodneys driveway. Tr. 2-160-169; 2-180-182.
The inordinate effort required to remove and thereby destroy years of surface growth, to excavate and replace substantial amounts of existing soils with Hinckley Soil, and the potential for serious damage to the Brodneys driveway are among those factors which lead this court to conclude that Naimans proposal, in addition to the infirmities discussed elsewhere herein, is highly impractical.
[Note 74] The condition of the land prior to construction is amply demonstrated by the pre-construction aerial photographs of the Lots supplied by James McClammer of Connecticut Valley Environmental Services. See Exhibit 30, photographs 1, 3. The photographs show a forested area.
[Note 75] Tr. 2-251:1-24.
[Note 76] Tr. 3-29:16-24; 3-30:1.
[Note 77] Tr. 2-251:20-23.
[Note 78] Exhibit 30, Series of 15 Photographs, Connecticut Valley Environmental Services; see also Exhibit 31, Connecticut Valley Environmental Services Plans 1-3 showing pre-construction topography and grading plan showing areas of cut and fill.
[Note 79] Exhibit 30, Series of 15 Photographs, Connecticut Valley Environmental Services.
[Note 80] See also Exhibit 30, photograph 14 (showing substantially the same area, displaying similar re-vegetation).
[Note 81] On direct examination, Bartlett described what he found in test pit 10:
A: Test pit 10 had and I would just read from the log. Its the best direct. We had this organic/ wood chip mulch, again, about two-tenths of a foot. And then below that was a dark and loamy subsoil fill with stone and pieces of concrete. It was fairly dense and had been compacted. And there was two-tenths of a foot to six-tenths of a foot of that material. And then there was a grayish silty fine sand with clay material, very dense, compact and blocky, in other words it was very compacted, you could break pieces in your hand and so on.
But the point of test pit 10 was that there are two types of fill here. Neither one of these . . . are not Hinckley soils they are fill soils. Tr. 2-18:14-24; 2-19:1-6.
[Note 82] Tr. 3-10:9-11.
[Note 83] Tr. 3-10:15-18.
[Note 84] Tr. 2-151:1-7.
Q In inspecting this by way of your personal observations in August and by what you see in the photographs, was there anything that indicated to you that this soil and the subsoil underneath was impeding the growth or otherwise hampering the vegetative cover that you saw?
A Not a bit.
[Note 85] Tr. 2-251:7-24; 2-252:1-2.
A And if I may add the additional comment, I think these plants were actually doing better than what I would have anticipated on these types of soils.
Q And what would you have anticipated to be done on these types of soils?
A Because these soils are well drained, being the Haven series, which is on the eastern portion of Mr. Naimans property, and the soils on the westerly side are considered to be exceedingly well drained, they dont hold water very well. And even the USDA and NRCS soil series report refers to these soils as causing severe mortality of seedlings. And so consequently what you would expect would be very slow re-vegetation naturally to these areas, and youd have more sparse vegetation for a longer period of time. And I was a bit surprised to see how luxurious and how healthy the vegetation was along the disturbed area at this point in time.
[Note 86] The plaintiffs expert Bartlett offered no comment on the state of re-vegetation or reforestation in the Disturbed Area. Tr. 2-115:3-22.
[Note 87] Compare Exhibit 16-9, a photograph taken by the plaintiff after construction, showing dirt and erosion along the driveway, with Exhibit 21, photographs B, C, D, E, F, showing a densely vegetated area. See Exhibit 26, Plan Showing Test Pit Notes; Lawrence Brodney testified that he did not place four inches of topsoil on the Disturbed Area because he paid for a riprap wall to be installed along a portion of the driveway on Lot A. Tr. 4-43:14-24.
[Note 88] He claims that he made an oral agreement with Naiman to install the riprap wall in lieu of his contractual obligation to deposit four inches of topsoil on the Disturbed Area. There is simply insufficient evidence on the trial record for the court to conclude that such an agreement existed.
[Note 89] Tr. 252:10-22.
[Note 90] See Brief of Defendants . . . Lawrence Brodney and Myra Z. Brodney, at 11 (. . . [T]hey [the Brodneys] have accepted the ZBAs determination and award for monetary relief.); see also, paragraph 24 supra.
[Note 91] Tr. 3-121:10-17 (emphasis added).
[Note 92] Tr. 3-127:1-5.
[Note 93] Tr. 3-130:15-16.
[Note 94] Tr. 3-127:8-12.
[Note 95] Exhibit 34, Ripman Report.
[Note 96] Tr. 3-182:9.
[Note 97] Tr. 3-182:16-22.
[Note 98] Tr. 3-182:23-24; 3-183:1-8.
[Note 99] Tr. 3-185:22-24; 3-186:1-5.
[Note 100] Plaintiffs Post Trial Memorandum, at 37.
[Note 101] Tr. 4-68:20-24; 4-69:1-24.
[Note 102] Tr. 4-171:1-9.
[Note 103] Tr. 1-94:7-15.
[Note 104] Tr. 1-185:4-21.
[Note 105] The very use of this phrase suggests an acceptable level of impact or illumination.
[Note 106] Naiman testified that prior to his subdivision of the Lots, he enjoyed walking the land in the evening and pre-dawn hours. He stated he finds the Brodneys lighting unpleasant, and it affects his ability to sky watch. The court does not credit this testimony. Tr. 1-93:14-24, 1-94:1-6.
[Note 107] Tr. 4-71:1-24; 4-42:1-4;
[Note 108] The Board additionally incorporated into its Decision the substance of certain agreements reached between Naiman and the Brodneys regarding the apparent zoning violations during Board-ordered settlement discussions. It is undisputed, based upon credible evidence that certain agreed solutions were reached at this time as to Lot C. See Exs. 37, 38, 13. Despite Naimans protestations that he is and was only interested in a comprehensive solution to his perceived issues with the Lots, he testified that he offered to replant the lower area of Lot C at his own expense, Tr. 1-126:11-13, testified that he accepted the provision that the Brodneys would hire one man for one day to cut bramble/brush on Lot C, Tr. 1-125:8-9, agreed to that LLCT would further cut the brush piles, Tr. 1-125:19, and agreed to the Brodneys constructing a trap swale to control runoff, Tr. 1-127:1. The court notes that Naiman did not submit the August 8, 2008 letter written by him and his attorney to the Board, on which, the Board relied in part, for its Decision.
[Note 109] This standard also accords with the overarching general principle of deferential judicial review of administrative decisions, wherein if the question is fairly debatable . . . [a reviewing court] cannot substitute [its] judgment for that of the [agency]. Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass. App. Ct. 349 , 356 n.11 (2001), quoting Conservation Commn of Falmouth v. Pacheco, 49 Mass. App. Ct. 737 , 740 n.3 (2000) (internal quotations omitted).
[Note 110] Exhibit 7, Site Plan Decision.
[Note 111] Tr. 3-123, 124.
[Note 112] Tr. 3-181:13-20.
[Note 113] Ripman continually stressed the need for a full cut off shielded light in order to comply with the Dark Sky Initiative. He stated that it was his opinion that the bracket side lights were not full cut off. On cross examination, the Brodneys attorney questioned him on the need for a full cut off light.
Q: Is there a particular provision that you can cite to, a specification of the Dark Sky Initiative, that explicitly says that you need a full cut-off shielded light?
A: There are a great number of different documents and references made by Dark Sky.
Q: Because I note in your opinion
A: To answer your opinion directly, I do not remember exactly what the citation was.
Q: Well, your opinion doesnt cite any standard from the Dark Sky Initiative whatsoever. Would you agree with that?
Tr. 3-172:9-24, 3-173:1-2.
Q: And at the end of the day, youd have to agree with me that you point to no specific violation of the Dark Sky Initiative anywhere in your report?
[Note 114] Tr. 4-132:7-10. It describes the Dark Sky 1-Light Wall Lantern as having been [d]esigned to meet the requirements of Dark Sky[;] these fixtures preserve and protect the nighttime environment . . . .
[Note 115] No bulb is at all visible within the light fixture.
[Note 116] Exhibit 36, Daytime Photograph of Garage Lights.
[Note 117] Tr. 3-133:23-24, 1-334:1-2.
[Note 118] Tr. 3-167:2-8.
[Note 119] Tr. 3-138:23-24, 3-139:1-16.
[Note 120] Tr. 3-119:14-19 (emphasis added).
[Note 121] Tr. 3-119:13-24, 3-120:1-18.
[Note 122] Tr. 3-200:23-24, 3-201: 1-5.
[Note 123] As for example, Mr. Ripmans statements that I could not navigate the paths of Mr. Naimans property without feeling at risk and Now, that is clearly light an example of light which actually interferes with perception. Tr. 3-201: 1-5. The court finds these conclusions to be contrived.
See also Tr. 3-202:14-16. Tr. 3-161 through 163, inclusive.
[Note 124] See also Exhibit 32, Photo from Point 6 showing the lit bracket lights on the garage. This picture displays direct light beaming on the Brodney property only.
[Note 125] See Defendants Post Trial Brief, at 32.
[Note 126] See p. 41, paragraph 1 thereof; see also, p. 4, subsection (a) of the said brief.
[Note 127] Exhibit 24A, Plan Showing Driveway Encroachment.
[Note 128] See Plaintiffs Post Trial Brief, n.5.
[Note 129] Tr. 1-85:13-24; Tr. 1-86:1-8.
[Note 130] All costs associated with the removal of the encroachment and the restoration of the encroachment area, are to be borne exclusively by the Brodneys.
[Note 131] See Answer and Counterclaim, ¶¶ 6, 7.
[Note 132] Each letter was received on August 6, 2008.
[Note 133] In this regard, see Tr. 4-137-142.
[Note 134] Such sum is not to exceed $3100.00.
[Note 135] See Findings of Fact, supra ¶ 24.
[Note 136] That is to say, the Brodneys need not, inter alia, remove and replace existing fill and subsoils.
[Note 137] See supra, pp. 23-24.