This is a boundary dispute in which the plaintiffs claim that the defendants encroached on their property by placing fill against a stone wall on the plaintiffs’ property, thereby improperly putting the plaintiffs’ wall into service as a retaining wall, without permission, to facilitate a change in grade on the defendants’ property. The defendants contend that the stone wall is in fact encroaching on their property, thereby giving them the right to place fill against it. However, the defendants also claim that even if they are encroaching on the plaintiffs’ property, the extent of the encroachment is so insignificant as to be de minimis as a matter of law. The defendants have moved for summary judgment, seeking dismissal of the plaintiffs’ claims, and the plaintiffs have moved for partial summary judgment, seeking dismissal of the defendants’ counterclaims. For the reasons stated below, the defendants’ motion for summary judgment is DENIED, and the plaintiffs’ motion for summary judgment with respect to the counterclaim is ALLOWED IN PART, and is otherwise DENIED.

FACTS

The following material facts are found in the record for purposes of Mass. R. Civ. P. 56, and are undisputed for the purposes of the pending motions for summary judgment:

1. The plaintiffs, Aldric Serrano and Elizabeth Covino, own the property and reside at 88 Hillcrest Parkway, Winchester. They built a new house on the property, which was substantially completed in 2007, but for which a certificate of occupancy was not granted until 2014.

2. As part of their construction, Serrano and Covino caused to be constructed a stone wall running from the front of their property to the rear of their property along the southeast boundary with the defendants’ property at 86 Hillcrest Parkway, for a length of approximately 135 feet. The plaintiffs claim that the stone wall was built one inch inside their property line. Although this is a material fact, and is highly disputed by the defendants, for the purposes of this motion only, the defendants have asked the court to assume the truth of this otherwise disputed fact.

3. The defendants, Kieran Brosnan and Catherine Brosnan, (“Brosnans”) purchased the property at 86 Hillcrest Parkway, Winchester, next door to the Serrano-Covino property, in 2011.

4. The original grade of the plaintiffs’ and the defendants’ properties adjacent to both sides of the stone wall built by the plaintiffs dropped off from the front of the properties, so the wall, when constructed, increased in height toward the rear of the properties to a height of about four to five feet above the original grade, measured from either side.

5. After purchasing their property in 2011, the Brosnans, in order to level and change the grade of their property, placed fill in the vicinity of the boundary with the Serrano-Covino property, using the stone wall for support for the fill, and, as noted above, thereby encroaching (for the purposes of this motion) by one inch onto the Serrano-Covino property. The height of the fill placed against the stone wall ranges from a few inches near the front of the properties, to as much as three or four feet toward the rear end of the wall, so that after the placing of the fill the height from grade to the top of the wall on the Brosnans’ side of the wall is no more than several inches.

DISCUSSION

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., supra, 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

The Brosnans’ Motion for Summary Judgment.

The essence of the Brosnans’ motion, in which they contend that they are entitled to judgment as a matter of law, is their contention that, even if the fill they placed against the Serrano-Covino stone wall running along the common boundary line encroaches on their neighbors’ property by about an inch, such an intrusion is so trivial as to be de minimis, and to not entitle the plaintiffs to an order enjoining such a small encroachment. The Brosnans cite in support of their motion such cases as Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 (1999) and Peters v. Archambault, 361 Mass. 91 (1972). Those cases stand for the principle that, although ordinarily a landowner is entitled to mandatory injunctive relief to remove physical encroachments, notwithstanding that the encroachments may have been made innocently and that the cost of removal is substantial in relation to the injury suffered by the owner of the lot upon which the encroachment has taken place, Archambault, supra at 92, in exceptional circumstances an injunction for removal of the encroachment may be denied. However, the Brosnans misconstrue the holdings of those cases by suggesting that the court need look no further than to determine that the encroachment is only an inch wide in order to deny injunctive relief for the removal of the encroachment.

The test for whether an injunction requiring removal of an encroachment will be denied requires an examination by the court that “depends very much on the particular facts and circumstances disclosed.” Id., at 93. Whether the encroachment is physically trivial, typically up to a few inches, is only one of the factors to be considered by the court. “The court may also consider whether the cost of removing the encroachment is greatly disproportionate to the benefit to the plaintiff from removing it…and whether the encroachment is intentional or the result of negligent construction,…Thus, it is proper, when considering whether a case comes within a particular exception, for the court to engage in a balancing of equities after due consideration of all pertinent facts.” Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 , 227 (1999). In making this factual inquiry, the court is to “draw the line at permanent physical occupations amounting to a transfer of a traditional estate in land.” Goulding v. Cook, 422 Mass. 276 , 277-278 (1996). The reason for this is that “‘our law simply does not sanction this type of private eminent domain.’” Id., at 278, quoting Goulding v. Cook, 38 Mass. App. Ct. 92 , 99 (1995) (Armstrong, J., dissenting).

The Brosnans have conceded, for the purposes of this motion, a one-inch encroachment. But they also urge the court to adopt as undisputed their assertions that the encroachment was innocent, that the plaintiffs did not express any concerns at the time the work was being done, thereby leading the Brosnans to understand that the Brosnans were acquiescent, and most importantly, the Brosnans urge the court to accept as undisputed fact, that fill and crushed rock, and a drainage system, were placed against the stone wall in such a manner that the wall would not be structurally compromised by the weight of the material or by water draining from the Brosnan side of the property line.

These allegations by the Brosnans are actively disputed by Serrano and Covino. Ms. Covino states in an affidavit that she repeatedly expressed her concern that the fill was encroaching on her property, and the plaintiffs have submitted the affidavit of an engineer who opines that the fill may compromise the stone wall in various ways. These disputed facts preclude summary judgment, regardless of the de minimis extent of the presumed encroachment.

The Brosnans rely on Gilmore v. Driscoll, 122 Mass. 199 (1877) in support of the proposition that they have a right to rely on the stone wall for lateral support, even if the wall is entirely on the plaintiffs’ property. They argue that to find otherwise would be to allow the plaintiffs to dictate what the Brosnans can do on their own property. The Brosnans’ argument turns the doctrine of lateral support on its head. The Brosnans claim that if they are denied the ability to place fill against the stone wall, even if the wall is entirely on the plaintiffs’ property, they are being unfairly denied the right to grade their property as they see fit.

The court in Gilmore held that a landowner has an absolute right to have his land supported in its natural condition, and an adjoining landowner will be strictly liable for excavation that undermines the natural condition of a neighbor’s land. Id., at 201. “The law with relation to lateral support is of ancient origin and is firmly established.” Gorton v. Schofield, 311 Mass. 352 , 356 (1942). The doctrine gives landowners a right not to have the natural condition of their property undermined by excavation on their neighbors’ land. It does not give a landowner the right to effectively require by unilateral action that his or her neighbor provide lateral support for changes in natural grade or other improvements.

The Brosnans seek to have the court to interpret the doctrine of lateral support so as to require an adjoining landowner to be liable to support changes to the natural grade of their property; in other words, to make the plaintiffs liable to provide lateral support for improvements on the Brosnan property. This is not the law. Absent a showing at trial justifying a denial of injunctive relief after an assessment of the factors outlined in Peters v. Archambault, supra, allowing the encroachments would constitute the type of “private eminent domain” proscribed by Goulding v. Cook, supra.

The Plaintiffs’ Motion for Summary Judgment on the Counterclaim.

The plaintiffs have moved for summary judgment seeking dismissal of five of the six counts of the Brosnans’ counterclaim. The five disputed counts are as follows: Count 1 seeks injunctive relief with respect to drainage allegedly directed from the Serrano-Covino property onto the Brosnan property; Counts 2 and 3 claim violations of the Winchester Zoning Bylaw; Count 5 claims that the stone wall constitutes a trespass (presumably one affecting right, title and interest in property because of the nature of the alleged encroachment) and seeks damages; and Count 6 similarly sounds in trespass, and seeks injunctive relief.

On Counts 2 and 3, which seek enforcement with respect to the plaintiffs’ alleged zoning violations, the plaintiffs argue that these counts fail because they were brought after the expiration of the six-year statute of limitations in G. L. c. 40A, §7 for enforcement actions against violations that were built in accordance with a duly issued building permit. The Brosnans counter that there is no showing that the violations of which they complain were built in compliance with the building permit issued in 2007, and therefore they are not entitled to the benefit of the statute of limitations. Both arguments miss the mark.

There is no private right of action to enforce a claim of violation of a zoning bylaw, except in strict conformity with the exclusive remedy provided in G. L. c. 40A, §§8, 15, and 17. One seeking enforcement of a zoning bylaw must appeal within thirty days of the issuance of the building permit (or within thirty days of notice of construction authorized by the permit) to the local building official, and if no enforcement is afforded to the appellant by the building official, then to the board of appeals. Only after an unsatisfactory result before the board of appeals may the aggrieved landowner appeal to a court of competent jurisdiction. This remedy is exclusive, and failure to exhaust this administrative remedy is fatal to an enforcement claim in court. See, e.g., Richardson v. Bd. of Appeals of Chilmark, 81 Mass. App. Ct. 912 , (2012); Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008). The Brosnans do not claim to have adhered to the required procedure, and do not allege any facts from which it could be concluded that they have done so. Accordingly, Counts 2 and 3 must be dismissed for failure to exhaust the required administrative remedy.

The plaintiffs argue that Counts 1, 5 and 6 should be dismissed because they are time-barred by the statute of repose in G. L. c. 260, §2B, and if not by the statute of repose, then by the statute of limitations in G. L. c. 260, §2A. The statute of repose, G. L. c. 260, §2B, applies in the case of “[a]n action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property,…” Likewise, G. L. c. 260, §2A, applies in the case of “actions of tort, actions of contract to recover for personal injuries, and actions of replevin.” Counts 1 and 6 of the counterclaim are not actions for tort, and seek only injunctive relief. Nor are they actions of contract to recover for personal injuries, or for replevin. Accordingly, the plaintiffs may not rely on either of the cited statutes to accomplish dismissal of Counts 1 or 6.

The statute of repose, G. L. c, 260, §2B, is not available to the plaintiffs to bar the counterclaim in any event, because the plaintiffs are not protected actors under the statute, which only protects design and construction professionals such as architects, engineers and contractors. The plaintiffs offered no evidence to suggest that either of them served in any official capacity as contractor or other protected actor with respect to the construction of the improvements on their property. “The protections of the statute of repose extend only to those who perform acts of ‘individual expertise’ akin to those commonly thought to be performed by architects and contractors—that is to say, ... parties who render particularized services for the design and construction of particular improvements to particular pieces of real property.’” Colomba v. Fulchini Plumbing, 58 Mass. App. Ct. 901 (2003), quoting Fine v. Huygens, DiMella, Shaffer & Assocs., 57 Mass. App. Ct. 397 , 402 (2003).

Finally, with respect to Count 5, in particular, which sounds in trespass and seeks compensatory damages with respect to the alleged encroaching presence of the stone wall on the Brosnans’ property, neither G. L. c. 260, §2A nor G. L. c. 260, §2B bars a claim for a continuing trespass, such as the ongoing presence of a physical encroachment. Such a case “falls within the rule applicable to continuing nuisances and continuing trespasses.” Sixty-Eight Devonshire, Inc. v. Shapiro, 348 Mass. 177 , 184 (1964).

For the reasons stated above, the defendants’ motion for summary judgment is DENIED. The plaintiffs’ motion for summary judgment is ALLOWED IN PART, with respect to Counts 2 and 3 of the Counterclaim only. The plaintiffs’ motion for summary judgment with respect to the counterclaim is otherwise DENIED.

A trial will be required with respect to whether fill and other material placed by the Brosnans encroaches on the plaintiffs’ property, and if so, on facts found after trial, whether a balancing of the equities justifies a denial of injunctive relief for the removal of such material; whether the plaintiffs’ stone wall encroaches on the Brosnans’ property, and if so, on facts found after trial, whether a balancing of the equities justifies a denial of injunctive relief for its removal; and with respect to such other matters raised in the pleadings not hereby dismissed. A pretrial conference will be scheduled accordingly.

Based on the rulings herein, it is

ORDERED and ADJUDGED, that Counts 2 and 3 of the defendants’ counterclaim are hereby DISMISSED;

It is further

ORDERED that the plaintiffs’ motion for summary judgment is otherwise DENIED and the defendants’ motion for summary judgment is DENIED.

So Ordered.