MISC 17-000397

SEPTEMBER 11, 2020





Like most common-interest communities, the North Attleborough Preserve, in North Attleborough, is governed by a homeowners' association that is charged with enforcing the series of covenants and declarations for the community. These covenants and declarations govern such matters as the exterior design of additions and improvements, fences, and other aspects of the exterior appearance of the yards and houses in the community. The goal of these rules is to ensure that the community maintain its look and appearance, and that the property values of the homes not be adversely affected by the other homes.

In 2015, one of the houses in the community burned down two days before its scheduled foreclosure auction. The foreclosure sale went forward, but the house was never rebuilt. Eventually, the defendant Stephen J. Sarcia (Sarcia) bought the lot, and sought to build a one-story house on the lot. The neighborhood, including the burned-down house, consists entirely of two-story colonial homes built from a limited choice of designs. A dispute arose between Sarcia and the plaintiff Executive Board of the North Attleborough Preserve Homeowners' Association, Inc. (Board) over whether the Board had the authority to regulate the design of a completely new house. In a summary judgment decision, I found that the Board could regulate the design, but that its decision could be reviewed on a standard of whether it was reasonable. Sarcia presented a series of designs to the Board; the Board ultimately denied Sarcia's fourth set of plans. This denial was tried to me. As set forth below, I find that while the Board's concerns about design and property values are legitimate, its denial of Sarcia's plans was unreasonable, as his proposed house will not threaten those interests. The Board's denial will be annulled, the plans ordered approved, and Sarcia will go back to the Board for final approvals of the small matters that were not otherwise addressed.

Procedural History

The Board filed its complaint on July 27, 2017 (Complaint or Compl.), along with its Motion for Preliminary Injunction and Motion for Endorsement of Lis Pendens. At a hearing on August 2, 2017, the court ordered defendant Sarcia not to convey, alienate, or otherwise encumber the subject property, and he stipulated that he would cease construction on the property. After the parties reported that they could not resolve the dispute, the court issued its Memorandum and Order on Motion for Preliminary Injunction on August 16, 2017. Sarcia filed his Answer and Counterclaim on October 16, 2017. He filed Defendant's Motion to Vacate Preliminary Injunction on December 6, 2017; the motion was heard on December 8, 2017, and the court issued its Memorandum and Order on Defendant's Motion to Vacate Preliminary Injunction on December 15, 2017.

On February 9, 2018, the Board filed Plaintiff's Motion for Summary Judgment, Plaintiff's Concise Statement of Material Facts Pursuant to Land Court Rule 4 in Support of Its Motion for Summary Judgment, and its Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment. On April 24, 2018, Sarcia filed Defendant's Cross Motion for Summary Judgment, Defendant's Concise Statement of Material Facts Pursuant to Land Court Rule 4 in Support of Defendant's Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment, Defendant's Response to Plaintiff's Concise Statement of Material Facts Pursuant to Land Court Rule 4 in Support of Its Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment, and Memorandum in Support of Defendant's Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. On May 4, 2018, the Board filed Plaintiff's Reply to Defendant's Memorandum in Support of Defendant's Cross Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment. The court heard the cross motions for summary judgment on May 7, 2018, and took the cross motions under advisement. The court issued its Memorandum and Order on Cross Motions for Summary Judgment on August 16, 2018. Executive Bd. of the N. Attleborough Preserve Homeowners' Ass'n, Inc. v. Sarcia, 26 LCR 416 (2018) (North Attleborough Preserve I). The pretrial conference was held on February 22, 2019.

The court took a view on May 7, 2019. Trial was held on May 8 and 9, 2019. The Board and Sarcia put on record their objections to the Memorandum and Order in North Attleborough Preserve I, supra. Exhibits 1-28 were admitted, and Chalk A was marked. Testimony was heard from William Collins, Lisa Roveda, Rick O'Brien, Gregory Spier, and Stephen Sarcia. The Plaintiffs' Post-Trial Brief was filed on August 19, 2019. The Defendant's Motion for Extension of Time to File Post Trial Memorandum and Present Closing Argument was filed and allowed on August 30, 2019. The Defendant's Post-Trial Brief was filed on September 24, 2019. The court heard closing arguments on October 1, 2019, and took the case under advisement. This Decision follows.


Based on the view [Note 1], the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. The North Attleborough Preserve Homeowners' Association (HOA) was created on December 5, 2005, when the Declaration of Protective Covenants and Declaration of Covenants, Conditions, and Restrictions (Declaration) were recorded with the Bristol County (Northern District) Registry of Deeds (registry) at Book 15442, Page 333, and Book 15443, Page 1 respectively. Exhs. 1, 28.

2. The North Attleborough Preserve was designed as a cluster residential development consisting of forty-one (41) lots (Preserve), one of which is no longer part of the Preserve. Buyers were given the choice from around five different designs of houses, which would be built on the purchased lot. All the available house designs were for two-story, colonial style homes. All the existing houses in the Preserve are two-story houses. Tr. I-28-31, 36, 47-48, 139, 145-147; Exhs. 3, 27, 28; view.

3. The continuity of style of the houses in the Preserve is important to the homeowners there. They believe that the consistent style ensures that the homes retain their property value. Tr. I-33-35.

4. The Board manages the business, operations, and affairs on behalf of all lot owners in the Preserve and in compliance with and subject to the Declaration and has the power to act on behalf of the HOA. Exh. 28.

5. Further, the Board is subject to and must comply with the By-Laws adopted by the HOA as well as the Architectural Guidelines that are attached to the By-Laws. Exhs. 2, 28.

6. Article IX, Section 9.05 of the Declaration provides that any property for which insurance is required to be maintained shall be repaired or replaced promptly. Exh. 1; Tr. I-86, 91.

7. Article XV, Section 15.01h of the Declaration (Section 15.01h or § 15.01h) states that lot owners need the Board's approval to erect additions or improvements to any lot and, further, that the Board has the sole and absolute discretion to approve or deny same. Exhs. 2, 28.

8. Article XVII, Section 17.01b of the Declaration (Section 17.01b or § 17.01b) gives the Board its power to "adopt, amend and enforce compliance" with the Preserve's Rules and Regulations consistent with the provisions of the Declaration. Exhs. 2, 28.

9. While the Declaration does not specifically require a minimum square footage or set design standards, the Board believes that it has the authority to review and require a two-story house in a particular design pursuant to these sections. In doing such a review, the Board is concerned with the exterior appearance of the proposed building or modification, not the interior, as changes to the interior of a house do not affect property values in the Preserve generally. The Board takes the position that it is not authorized to review interior changes to a house. Tr. I-70- 76, 224-226; Exhs. 1, 2.

10. The Board adopted Architectural Guidelines (Guidelines) which govern the policies and procedures for alterations, modifications and improvements to a lot, as well as the common areas. Exhs. 2, 28.

11. Buyers are made aware of the HOA, the Declaration, and the Guidelines when they purchase homes. Tr. I-35, 141-142, 189.

12. Among the houses at the Preserve was one at 53 Pearl Street (the property) that was built in 2006 (the previous house). The property consists of 1.03 acres of land and is the largest lot in the Preserve. The previous house was a 5,000 square-foot colonial-style, two-story structure with four-bedrooms, a tuck-under garage, and a conservatory, using the "Marion Colonial" design from among the design choices. Unlike most of the other homes in the Preserve, the previous house was set far back and was not entirely visible from the street. Exhs. 4, 15, 27, 28; Tr. I-91, 140-141, 151-156; view.

13. On April 29, 2015, two days before it was scheduled to be sold at a foreclosure auction, the previous house was destroyed by fire. The foreclosure sale went forward, and the buyer at auction then sold the property to Maystar Realty Corporation (Maystar). Tr. I-36-37, 156-157, 232, 234-235; Exhs. 5, 28.

14. Around that time, Sarcia was looking for a property to purchase for a house for he and his family to live in. He had lost his former house to foreclosure after he suffered financial setbacks in the recession of 2008. Tr. II-5-6, 66-67, 102.

15. One of his neighbors told him that the previous house had burned down and that there was a for-sale sign at the property. Sarcia telephoned the company listed on the for-sale sign, Maystar, and spoke to its principal, Greg Spier. Tr. I-238, II-7-8.

16. Sarcia reached an agreement with Maystar to purchase the property for $183,000, with Maystar taking back an interest-only mortgage for the entire purchase price. Tr. I-236-237, II-8, 12; Exh. 5.

17. Before purchasing the property, Sarcia sought legal advice and was informed that there were no covenants at the Preserve governing the rebuilding of a burned-down structure. This was important to Sarcia because, due to his financial situation, he intended to build a single family house on the existing foundation of the previous house, doing the construction himself. There would be considerable savings from not having to construct a foundation and from the fact that the water and sewer lines were already in place. He had previously constructed a house for himself, and had experience in managing construction costs. Tr. II-8-12, 19, 68, 95.

18. Sarcia purchased the property on April 28, 2017. Exhs. 5, 28; Tr. I-235.

19. Around that time, Sarcia had plans prepared for the house he proposed to build on the property (the initial plans). It was to be a 2,500 square-foot one-story house with a garage, built on the foundation of the original house. Tr. II-19-22; Exh. 6.

20. Lisa Roveda (Roveda), one of the members of the Board, lives two doors down from the property. On or about May 5 or 6, 2017, Roveda observed work being done on the property, and decided to investigate whether the new owner knew of the HOA. On or about May 20, 2017, she approached Sarcia while he was doing work around the foundation. She spoke with Sarcia at the property and told him that the approval of the Board was required before he could build on the property, and offered to provide him with copies of the Declaration and other paperwork concerning the HOA. Sarcia told her he was intending to build a one-story house, and disagreed that he needed HOA approval, based on his conversations with his attorneys prior to buying the property. Roveda informed Sarcia that the HOA wanted a two-story house at the property, and provided him with her email address. Tr. I-138, 157-163, II-13-15, 18, 26, 67, 70- 71; Exh. 28.

21. On May 22, 2017, Sarcia's wife, Dena Paolino (Paolino), sent the initial plans to Roveda. Roveda convened an emergency Board meeting that evening. The Board decided that the house shown on the initial plans was not consistent with the community because it was one story, and denied the plans. Roveda asked the HOA's management company to communicate that decision to Sarcia. Tr. I-163-167, II-22-23; Exh. 6.

22. On May 26, 2017, attorney Barry W. Plunkett (Plunkett), who was then representing Sarcia, sent email correspondence to the Board stating that Sarcia was getting permits to build a new house on the property and was requesting information as to the Preserve's building restrictions, plan approval process, etc. Exhs. 9, 28.

23. On June 13, 2017, Sarcia applied for a building permit for a new house on the property. The application was for a 2,550 square-foot, four-bedroom ranch-style home to be built on the existing foundation of the previous house. He estimated the construction cost to be $170,000. Sarcia submitted the initial plans with the application. The building permit application was approved by the Town of North Attleborough building commissioner on June 22, 2017, and a building permit was issued. Exhs. 6, 11, 26; Tr. II-37-42, 77.

24. Between May 23 and July 14, 2017, there were a series of emails between Ms. Paolino and Plunkett, on the one hand, and the property manager and counsel for the Preserve, on the other hand, debating whether Board approval of Sarcia's plans for the new house was required, and asking for a "Welcome" package that would include a mailbox key and information on where to send homeowners' fees. Exhs. 7, 8, 9, 10; Tr. II-16-17, 23-24.

25. Around this time, Sarcia submitted a revised set of plans to the Board (second plans). The second plans were for a one-story house with what he described as "dog houses" added to the roof. These were dormer windows in the roof that made the house appear as a two story building. The proposed house in the second plans was taller, and, with the added "dog houses," Sarcia intended the house to look more like the first house that burned down. Tr. I-169- 172, II-24-28; Exhs. 12, 13.

26. Around this time, Sarcia proceeded with construction of his house on the Property despite the Board's denial of his construction plan. Tr. II-72. Further construction was enjoined by the court on August 16, 2017.

27. In late August of 2017, Sarcia proposed to rebuild the two-story structure that was previously on the foundation. On or about August 21, 2017, through his attorney, Sarcia sent the attorney for the Board a copy of the plans for the previous house that were on file with the town building department (third plans). He proposed to construct the first floor of the house as he proposed in the original and second plans, but he would build the house in such a way that the interior of a second floor could be built at a later date. The Board discussed this plan favorably and was prepared to approve it. Exhs. 15, 16, 17, 19, 28; Tr. I-171-173, 176-177, 179-180, II-28- 34, 46-47, 83-84.

28. On August 29, 2017, before the Board made a decision, Sarcia indicated he was withdrawing this plan to rebuild the two-story structure as he could not afford to do so. The town required work on the second level - construction of walls, insulation, plumbing, a stairwell - that would cost between $90,000 and $120,000 more than he had planned. He is unable to borrow the funds necessary to build the second floor to the extent required by the town's building department. Exhs. 18, 19, 28; Tr. I-173-174, 180, 207-208, II-34-35, 44-45, 73, 83, 86-95.

29. On September 9, 2017, Sarcia delivered to the Board by hand a formal "Application for Architectural Modification." This application was based on the second plans. Exhs. 12, 13, 19, 28; Tr. II-47-49.

30. The Board denied the second plans in a written decision (first decision) on September 29, 2017. As a basis for its denial, the Board stated in the first decision:

The Board voted to deny this plan because the home does not conform to the look and feel of the community. All homes in the community are two-story colonials varying in elevation, frontage and square footage. This proposed home is a one story ranch-style home with an odd elevated roofline to supposedly make it look like a two-story colonial that has dormers but no second story windows. It simply does not conform to the other homes in the community. In order to preserve the integrity of the Toll Brother's Community, property values and the negative impact it will have on the ability to enforce any of the By-laws/Protective Covenants and Restrictions in the future on any other HOs request for modification could be hindered. . . .

The Board will accept another submission of plans from Sarcia/Paolino if it . . . conforms and is consistent with the other homes in the community, which is a two-story colonial. The Board feels they have been very "reasonable" providing Sarcia/Paolino with different options that would be consistent with the other homes in the community and has offered to be flexible in the actual build out of the second floor as an accommodation. The Board has tried to work out a reasonable solution to this re-build but Sarcia/Paolino have been unwilling to come to any agreement other than building a one-story ranch-style home and has offered no alternatives, except when they presented the board with a re-build of the two-story colonial home and then pulled the plan before the board could vote to approve the same.

The Board was concerned that the house would be one story and the proposed color, federal yellow, was not consistent with the other homes in the Preserve. Exhs. 19, 28; Tr. I-174-175, 180, 210, II-28, 42.

31. On or about March 1, 2018, Sarcia submitted a revised set of plans for building a home on the property (fourth plans). The fourth plans show a one-story house, but with two levels of windows in the front. In other words, instead of placing dormer windows in the roof, as was shown in the second plans, the fourth plans show what appears to be a two-story colonial house in the front, with a separate roof line between the house and garage. The rear and sides show a one-story house with a high roof, with two rows of windows over the garage door. Exhs. 22, 23, 28; Tr. I-38-40, II-57-60.

32. The Board reviewed these plans. The Board was concerned that the plans did not show any detail of the interior design and did not show that a second floor could be built. It appeared to the Board that the two rows of windows were very close together, so that if second floor were installed the floor line would come across the window line. The Board asked for clarification, but did not receive it. Tr. I-41, 43-47, 180-183.

33. The Board denied the fourth plans in a written decision (second decision). As grounds for its denial, the Board stated:

In order to preserve the integrity of this community, the Board has to be mindful of setting an unwelcome precedent. Due to the potential negative impact on the property values of approving Sarcia's current plans which do not conform to the architectural consistency of the other homes in the community, the Board's ability to enforce any of the By-laws/Protective Covenants and Restrictions in the future, and on any other homeowner's request for modification, could be hindered. As a Toll Brothers community, the houses in the Preserve are all single-family, two story colonials varying in elevations and frontage. Toll Brothers offered purchasers a range of between four and six options for home styles at the time the Preserve was developed, all of which were 2-story colonials and architecturally consistent with one another. It follows, then, that Sarcia's proposed plan of a one story, ranch-style house is not consistent with this cluster community. The Board rejects Sarcia's current plans because the proposal violates the architectural continuity and integrity of the Preserve.

Exhs. 24, 28; Tr. I-41-43, 183-184.

34. In denying the fourth plans, the Board indicated that it would like Sarcia to provide interior floor plans. The Board said that it would be willing to approve plans submitted by Sarcia that included a two-story house with a rough, unfinished second floor which could be finished at a later date or to accept plans consisting of a two-story, colonial-style over the base of the home and a one-story conservatory over the garage. The Board did not specify what it expected the plans to depict or the detail necessary. The Board objected to a house that appeared to be a two-story house from the front, but did not have the spacing between the first and second floor windows that a true two-story house would have. It was really a one-story house with a façade. Exhs. 22, 23, 24; Tr. I-43-47, 51-54, 92, 183-188, 198-200, 219-220.

35. The Board denied the fourth plans because it does not want a single-story house in the Preserve. The Board believed that a single-story house is not architecturally consistent with the homes in the Preserve. As one Board member stated, the Board wanted the homeowners in the Preserve to "feel comfort and secure in the fact that a similar home was being replaced with one that was destroyed, which would assure continuity and the value continuity, as well as architectural and the harmony in the community." The Board was especially concerned that building a much smaller home - a 2,500 square foot one-story house - on the same footprint as the previous house - a 5,000 square foot two-story house - would not suit the needs of families with children and would reduce the property value of that property and of other homes in the Preserve. The Board was further concerned that if it allowed this house to be built, it would have difficulty enforcing its regulations and authority on other proposals. Tr. I-48-51, 184-185.

36. Rick O'Brien was admitted to testify as an expert on the market value of the house as proposed in the fourth plans and its effect on the market value of the other homes in the Preserve. Mr. O'Brien is a developer and real estate broker. Since 1975, he has developed residential subdivisions, including several in the North Attleborough area. He specializes in developing high-end residential subdivisions. His business model is to create subdivisions with covenants and restrictions, in which buyers work with him to design their own home. They then sign a purchase and sale agreement for the property, construction of the designed home, and the covenants. He generally markets homes beginning at $900,000; a current subdivision in North Attleborough that he has developed includes homes above $1,000,000. The price is based in part on the design of the home. Tr. I-104-107, 111-112, 125-126.

37. Mr. O'Brien testified that the factors that go into determining the value of a home are its location, the size and style of the home, its curb appeal, its design, and its interior amenities. The number of floors is not necessarily a factor - he has built one-floor homes that sell for as much as a multi-floor home. I credit Mr. O'Brien's testimony. Tr. I-106-107, 111, 113-114, 121-122, 124-125, 128, 135.

38. Mr. O'Brien reviewed the fourth plans and drove through the Preserve to observe the existing homes. He testified that the fourth plans show a house that appears to be a colonial saltbox; "[a]nybody driving by would consider that a colonial." He testified that in his opinion, the fourth plans are consistent with the homes currently built in the Preserve, which are mostly a form of colonial houses. I credit his testimony. Tr. I-110, 114-115, 123, 127-128; Exhs. 22, 23; view.

39. Mr. O'Brien testified that the fact that the proposed home as shown on the fourth plans has one floor might affect the market price of that home. However, he testified, the fact that the proposed house has only one floor would not affect the value of the other homes in the Preserve. I credit his testimony. Tr. I-115, 123-126, 135-136; Exhs. 22, 23.


In North Attleborough Preserve I, I made two findings. First, I found that § 15.01h of the Declaration, requiring Board approval of additions or improvements to houses, applies to the reconstruction of a burned-down house like the previous house. North Attleborough Preserve I, 26 LCR at 418-419. Thus, "Sarcia's plans for the [p]roperty are subject to approval" by the Board. Id. at 419. Second, I addressed the standard for review of the Board's decision. I held that the approval powers of the Board are akin to those of a condominium association, and, applying the standard for condominium associations, the "Board's decision-making process is therefore reviewed under the reasonableness standard." Id. I incorporate the Memorandum and Order in North Attleborough Preserve I here.

Thus, the issue at trial was whether the Board's second decision, denying Sarcia's fourth plans for a house on the property, was reasonable. There are various statements of what constitutes reasonableness in the context of a common interest community or condominium regulation. "If a rule is reasonable the association can adopt it; if not, it cannot. It is not necessary that conduct be so offensive as to constitute a nuisance in order to justify regulation thereof." Noble v. Murphy, 34 Mass. App. Ct. 452 , 457 (1993), quoting Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 182 (Fla. Dist. Ct. App. 1975). Where a condominium association or common interest community restricts use of property, the standard of review is whether the restriction is "reasonably related to the promotion of the health, happiness and peace of mind of the unit owners." Id., quoting Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 640 (Fla. Dist. Ct. App. 1981). In Noble, the court upheld a restriction on keeping pets, since it was reasonable to conclude that pets within the condominium might interfere with unit owners' health, happiness, and peace of mind. Id. at 458. As a more recent example, in Kessler v. Harrington, 2011 WL 2714059 (Mass. Super. 2011), judgment aff‘d, 84 Mass. App. Ct. 1136 (2014), restriction on the use of a fireplace was deemed reasonable where the fireplace shared a flue with the building's furnace, because the unit owner's use of her fireplace could jeopardize the health and safety of all of the occupants of that building. Id. at *12-*13.

In contrast, in Trustees of Muzzey High Condominium Trust v. Lexington, 2002 WL 1799736 (Mass. Super. 2002), a parking rule reserving spaces for unit owners (and restricting use by the public) during weekday business hours was unreasonable, absent any evidence of parking shortages occurring during those hours, but such a restriction would be reasonable outside those hours in light of evidence presented that parking shortages occurred during evenings and on weekends in particular. Id. at *12. Finally, in Yankovski v. Keller, 2004 WL 2451293 (Mass. Super. 2004) the denial of approval to install a partition wall to create a new bedroom in a condominium was held to be unreasonable because the master deed already restricted the number of persons who could occupy the unit, and the Trustees of the condominium did not demonstrate that denying approval had a "reasonable relationship" to maintenance costs, denigration of common areas, or the health, happiness or peace of mind of other unit owners. Id. at *3. [Note 2]

The standard that is gleaned from these cases is that in regulating structures, the Board must be protecting a legitimate interest against an undesired outcome, and the decision of the Board must be reasonably likely to prevent the occurrence of the undesired outcome. In the second decision and in the testimony of Roveda and Collins, the Board emphasized that it regulates the exterior appearance of the homes in the Preserve in order to maintain "the architectural continuity and integrity of the Preserve." Exh. 24. The Board seeks to maintain a consistent design of homes in the two-story colonial styles that were originally available from Toll Brothers. It does so because it wants the Preserve to continue to appear as a single neighborhood with a single style and to make sure that no poorly-designed house lowers the property values of the other houses in the Preserve. These are legitimate interests, and the Board is entitled to regulate construction proposals in order to protect these interests.

The Board's denial of the fourth plans does not, however, reasonably protect these interests. Based on the view, the exhibits, and the testimony at trial, including that of Rick O'Brien, which I credited, I find that a house based on the fourth plans would appear as consistent with the other two-story colonial homes in the Preserve and would have almost no effect on property values. While I appreciate that the proposed house based on the fourth plans is actually a one-story house, and that the row of second-story windows is not at the same height as the second-story windows of the other colonials in the Preserve, from the outside the proposed house would look like a two-story colonial. This is especially true as the house will be set far back from the street - farther than any other house in the Preserve is set back - so that it will not be as immediately visible as the other houses. As the proposed house would appear on the exterior as a two-story colonial, it does not matter that its interior is a single story. As the Board recognizes, it cannot and does not regulate the interior of houses.

To its credit, the Board attempted to work with Sarcia to see if he could present a design for a one-story house that could be converted at a future date to a two-story house. That such a design was cost-prohibitive because of the requirements of the town and the building code is the fault of neither Sarcia nor the Board. Sarcia's fourth plans, while not exactly what the Board was looking for, do satisfy the Board's concerns. It was error for the Board, in its second decision, to deny permission for the fourth plans.

The last question is what the remedy should be. The Board's second decision will be annulled, and it will be ordered that the fourth plans shall be deemed approved. Sarcia will be directed to appear before the Board to address questions that were not addressed in the second decision, such as acceptable paint colors for the exterior and any provisions for landscaping.

Finally, Sarcia argues that the Board acted in bad faith in denying the fourth plans. As discussed above, the Board was attempting to address legitimate concerns in its second decision. While its denial of the fourth plans was unreasonable, it was not made in bad faith. I will not award attorneys' fees to Sarcia as requested. I also find that Sarcia should not be charged for any portion of the Board's attorneys' fees in prosecuting this action.


For the foregoing reasons, I find that the Board's second decision was unreasonable. Judgment shall enter annulling the second decision, and ordering that Sarcia's fourth plans are approved. Sarcia will be ordered to appear before the Board for final approval of any matters not addressed, such as paint colors and landscaping, and the Board will be ordered to approve such matters promptly.

Judgment Accordingly.


[Note 1] A view "inevitably has the effect of evidence, and information properly acquired upon a view may properly be treated as evidence in the case." Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626 , 629 n.5 (2018) (internal citations and quotations omitted); see also Martha's Vineyard Land Bank Comm'n v. Taylor, No. 17-P-1277 (Mass. App. Ct. June 22, 2018) (Rule 1:28 decision).

[Note 2] In Atanassova v. Sefner, 2013 WL 838865 (Mass. Super. 2013), on the other hand, a similar denial to construct a partition wall was upheld because the master deed identified the unit as having only two bedrooms, and the reliance of other unit owners, the City of Somerville, or lenders on the restrictions in master deed was reason enough to uphold the restriction. Id. at *3-*5.