COMMONWEALTH OF MAS SACHUSETTS TRIAL DEPARTMENT LAND COURT BRISTOL, ss LANDING AT SOUTH PARK CONDOMINIUM ASSOCIATION. Plaintiff vs. BORDEN LIGHT MARINA. INC.. Defendant/Plaintiff In Counterclaim vs. LANDING AT SOUTH PARK CONDOMINIUM AS SOCIATION, Defendant in Counterclaim DOCKET NO. 99 Misc 254067(JCC) POST-TRIAL BRIEF OF DEFENDANT/PLAINTIFF IN COI'NTERCLAIM, BORDEN LIGHT MARINA" INC. ) ) ) ) ) I ) I ) ) l I ) I ) The Defendant/Plaintiff in Counterclaim, Borden Light Marina, Inc. ("BLM"), submits this Post-Trial Brief for consideration by the Court. I. INTRODUCTION' This action was first filed by the Plaintiff, Landing at South Park Condominium Association ("LSP"), in February of 1999. The Complaint claimed jurisdiction under G.L. c. 185, $1(k) and G.L. c. 2314, $1. The Complaint alleged trespass and nuisance and sought a declaration of the rights of the parties to use and occupy a 20-foot wide strip of BLM property ' All parenthetical references Tr. Vol. _ and Ex._ are to the trial transcript volumes and pages, and the exhibits admitted at trial, respectively.
COMMONWEALTH OF MAS SACHUSETTS TRIAL DEPARTMENT LAND COURT BRISTOL, ss
DOCKET NO. 99 Misc 254067(JCC)
LANDING AT SOUTH PARK CONDOMINIUM ASSOCIATION. Plaintiff vs.
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) ) ) I
BORDEN LIGHT MARINA. INC.. Defendant/Plaintiff In Counterclaim vs.
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POST-TRIAL BRIEF OF DEFENDANT/PLAINTIFF IN COI'NTERCLAIM, BORDEN LIGHT MARINA" INC.
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LANDING AT SOUTH PARK CONDOMINIUM AS SOCIATION, Defendant in Counterclaim
) I
)
The Defendant/Plaintiff in Counterclaim, Borden Light Marina, Inc. ("
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POST-TRIAL BRIEF OFDEFENDANT/PLAINTIFF INCOI'NTERCLAIM, BORDENLIGHT MARINA" INC.
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The Defendant/Plaintiff in Counterclaim, Borden Light Marina, Inc. ("BLM"), submits
this Post-Trial Brief for consideration by the Court.
I. INTRODUCTION'
This action was first filed by the Plaintiff, Landing at South Park Condominium
Association ("LSP"), in February of 1999. The Complaint claimed jurisdiction under G.L. c.
185, $1(k) and G.L. c. 2314, $1. The Complaint alleged trespass and nuisance and sought a
declaration of the rights of the parties to use and occupy a 20-foot wide strip of BLM property
' All parenthetical references Tr. Vol. _ and Ex._ are to the trial transcript volumes and pages, and theexhibits admitted at trial, respectively.
adjacent to the LSP property. Specifically, the original Complaint alleged Trespass in Violation
of Visual Easement (Count I); Trespass in Violation of an Erosion Control Easement (Count II);
Private Nuisance (Count III); Negligence (Count IV); Declaratory Judgment (Count V); and a
Request for Injunctive Relief (Count VI).
The Defendant answered the Plaintiff s Complaint and included a Counterclaim alleging
trespass by LSP onto BLM's property as the result of encroachments by LSP's building
improvements and as the result of LSP's managers, agents, seryants, employees and members
wrongfully entering upon BLM's property to mow grass and cut down and remove BLM's trees
and protective plants. The Plaintiff answered Defendant's Counterclaims.
On May 23, 2A00, the Court entered a Preliminary Injunction (Kilborn, J.) enjoining
BLM until further order of the Court from undertaking certain actions, including "Engaging in
construction within the Erosion Control Easement recorded at Fall River District Registry of
Deeds at Book 1724,Page327." (Ex.15).
On or about June 3, 2010, LSP filed a Complaint for Contempt against BLM alleging a
violation of the Preliminary Injunction entered by the Court ten years earlier on May 23,200A.
BLM answered the Complaint for Contempt, raising various defenses, including laches and
waiver. A hearing on LSP's application for a Preliminary Injunction was held on October 12,
2010, and after hearing, the Court took the matter under advisement pending completion of ttre
trial of the underlying case.2
'At the conclusion of the trial, the court entered a Preliminary Injunction pending final disposition of the case.The Preliminary Injunction enjoined the Defendant from using the 20 ft. easement area adjacent to the 630+l- ft.long retaining wall constructed between 2008 and 2009 for storage purposes of any kind pending fur*rer Order ofthe Court. The Defendant complied with the Orderby removing all boats and equipment from the areawithin thetime frame set forth by the Court.
On or about October 1, 2010, the Plainti amended its Complaint wherein it abandoned
original Count Ill-Private Nuisance and original Count IV-Negligence, and added for the first
time allegations that the construction of a retaining wall within the 20 foot non-exclusive
easement violated the terms of the easement and that boats are structures for purposes of the
visual easement. At the time of the filing of the original complaint in 1999, a substantial portion
of the retaining wall had been constructed and boats were being stored above elevation 19 feet
above mean sea level and within the 20 foot non-exclusive easement area.
On November 15, 201,0, the Defendant filed an Amended Answer to the Amended
Complaint, once again including its Counterclaims.
The case was heard on November 8, 9 and 10, 201A, and concluded on January 19,
2011.
II. F'ACTUAL BACKGROT]ND
The Plaintiff is the Board of Managers of The Landing at South Park Condominium
Association, the governing body of the owners of the condominium units at LSP. (Tr. Vol. II
98). The LSP property consists of 140 condominium units built on Lots 1 and2 as shown on a
plan entitled "Division of Land in Fall River, Massachusetts, Belonging to Green River Realty
Trust dated July 14, 1986-, with a combined area of 7.73 acres. (Tr. Vol. I3) (Ex. 16). The
BLM property is shown as l,ot 3 on Exhibit 16 and consists of 3.5 acres. Subsequently, Lot 3
was divided into Lots A and B. Lot A was conveyed to "The Admiralty, Inc." and Lot B was
retained by BLM. (Tr. Vol. lV 74-75) (Ex.l9). The Admiralty, Inc. is not a party to this action,
and Lot A as shown on the referenced plan is not at issue.
BLM is a fulI service marina consisting of 27A sHps, fuel services, boat maintenance and
repalr, clubhouse and pool areas, docking facilities, boat storage and food services. (Ex. 34,
Photographs 25,26,27,28,29). The marina is licensed for up to 310 slips. (Tr. Vol. III 139).
ln addition to the docking facilities and food services, the usual operation of the marina consists
of hauling boats out of the water in the fall, power washing and winterizing them, servicing the
boats and then preparing them for launching and launching them in the spring. BLM then
conducts activities throughout the summer, which include fishing tournaments, swimming
lessons and organizing cruises. (Tr. Vol. III 135-137).
The development of the condominiums and the marina is the product of a vision by Mr.
John C. Lund, who took his first steps to develop the property in 1985 when he and his business
parbrer, Brian R. Corey, obtained an Option to Purchase the entire parcel. (Tr. Vol. IV 67). :_
Historically the property, which is zoned Industrial, was owned by Penn Central
Railroad and had been improved by railroad tracks and a turntable. (Tr. Vol. IV 66). In 1985,
when Mr. John C. Lund secured the Option to Purchase, tlre railroad tracks and turntable had
been removed, and there were twenty-six shacks situated along the shoreline. (Tr. Vol. IV 66).
One of the terms of the Option to Purchase was that Mr. Lund and his partner were required to
remove the twenty-six shacks, which they did. Some of the shacks and the existing conditions
in 1985 of what would become the LSP and BLM properties are shown as Exhibit 34,
Photographs 1,9, 34,37,38,40, 4I and47.
The original development concept in 1985-1986 was to build a full service marina on
the waterfront with 140 condominium units overlooking the marina, together with a 16-story
1 tl| Ftrt*high-tit"_b94fu_ut th" tgutherly end of lhe property. (Tr. Vol. IV 63-69). The southerly end
of the property is adjacent to the King Philip Boat Club. (Tr. Vol. IV 69). The original concept
4
also included some buildings between the condominiums and the shoreline. (Tr. Vol. IV 69).
The use of those buildings was undetermined at that time, but storage and marina related
activities were contemplated. Lund and Corey never intended to be the developer of thg
condominium portion of the development. (Tr. Vol. IV 70). They sought, through the services
of a broker, third parties to do so. (Tr. Vol. IV 70). Keith Development Corp. of Stoughton,I
Massachusetts, subsequently purchased an option from Lund and Corey to buy Lots 1 andZ and
to develop the condominiums. (Tr. Vol. W 70 and72).
Thereafter, plans to develop the property progressed. In particular, the high-rise
component of the marina project moved from the southerly to the tj1ther'ly end of the property
and some contemplated buildings on the marina property were eliminated. (Tr. Vol. IV 7t-72).
The parcel shown as Lot A on Exhibit 19, now owned by The Admiralty, Inc., and became the
site of the proposed high-rise. (Tr. Vol. fV 75) @x.19). Ultimately, in September of 1986, Keith
Development Corp., exercised its option and purchased Lots I and 2, and Lund and Corey
purchased Lot 3. (Tr. Vol. lY 7l-73). Keilh Development Corp. took title to Lots 1 and 2 as
The Landing at South Park, Inc., and John C. Lund and Brian R. Corey took title to Lot 3 as
individuals. (Exs. 1 & 2). The closings on both properties took place simultaneously. (Tr. Vol.
IV 73). The deed from Leo M. Kelly, Trustee of Green River Realty Trust, to Lund and Corey
for Lot 3 conveyed that property subject to various easements, and made reference to a visual
easement and a 2Q-foot easement for the benefit of Lots I and 2. (Ex.l). The deed to The
Landing at South Park, Inc., also made reference to the visual easement and 2O-foot easement
as appurtenant to the premises conveyed. (Exs.l and2). There were other easements referred to
in the deeds, including an access easement, which are not at issue in the case at bar.
BLM contends that the easements at issue in this case were created not by grant or
reservation in the deeds, but rather by express grant set forth in separate documents executed at
the closing and recorded with the Bristol County Fall River District Registry of Deeds. (Exs. 4
and 5). The language in the deeds @xs. 1 and2) contemplates the execution of specific grants
of easement subsequent to the deeds. Unlike the specificity used for the access easement, these
deeds merely referenced general termq for the contemplated visual easement and 20-foot
easement, with the particulars subsequently to be set forth by specific grants. (Exs. 4 and 5).
This interpretation is bolstered by the fact that when LSP granted a partial release of certain
rights under the non-exclusive easement, it referred not to the deed (Ex. 2), but, rather, to the
grant of easement captioned "Non-Exclusive Easement". (Exs. 5 and 7).
Although, the language in the deed relating to the visual easement differs in minor
respects from the terms of the easement itself, BLM maintains that such differences are of no
consequence to the rights of the dominant and servient estates; that is, the rights granted and
limitations imposed are the same regardless of whether the Court interprets the easements under
the references in the deeds or the specific grants. In its Amended Complaint, the Plaintiff
pleads the benefit of easements under Exhibits 1,2, 4 and 5 without distinguishing the rights
granted or reserved in each. BLM maintains that the operative documents for determining the
rights of the parties to the visual easement and the 20-foot non-exclusive easement are Exhibits
4 and 5 respectively.
Lund and Corey transferred title to the marina property (Lot 3 on Ex. 16) to Borden
Light Marina, Inc. on July 25, 1989. As noted above, a portion of Lot 3 was cut out, labeled
Lot A, and transferred to The Admiralty, Inc., and again, is not part of this case.
After acquiring title to the property, BLM commenced the permitting process to build
the marina. It filed an application under M.G.L.A. c. 91 with the Commonwealth of
Massachusetts, Department of Environmental Quality Engineering "for a license to construct
and maintain floats, finger floats, mooring piles, gangways, fixed piers, fixed and floating wave
attenuators, boat ramp, riprap, roadway, walkway, parking spaces, public overlooks and other
marina related facilities." (Ex. 7). The license applied for is known as a Chapter 9lWaterways
License. The details of the proposed marina were set forth on DEQE License Plan No. 1848,
Civil contempt proceedings are remedial and coercive and intended to achieve
compliance with court's Orders for benefit of complainant, whereas criminal contempt
proceedings are exclusively punitive and designed wholly to punish. Furtado v. Furtado. 380
Mass. 137,402N.E.2d 1024 (1980).
V. ARGTJMENT
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A. BLM'S STORAGE OF BOATS ON ITS PROPERTY DOES NOT VIOLATETHE TERMS OF THE VISUAL EASEMENT GRANTED TO LSP DATEDSEPTEMBER 30. I.986.
The visual easement at issue in this c4se provides:
For a view unobstructed by any structure in the area 19 feet aboveMean Sea Level on the premises...Excluded from the definition ofthe term structure as used in this Visual Easement and expresslypermitted to occupy the area 19 feet above Mean Sea Level on thepremises are pilings, supporting piers and floats, hvac exhaustsand/or intakes which are reasonably screened, trees, shrubbery andpicnic tables.
@x. a). The portion of BLM's property encumbered is described in the easement as
follows: i
A parcel of land in Fall River, Massachusetts, located on thewesterly side of Almond Street, bounded and described as follows,running:
i south 89o 53' 55" West to the Mounti Hope Bay; thence rururing
along the Mount Hope Bay to landnow or formerly of the King PhillipBoat Club; thence running
by land now or forrnerly of KingPhillip Boat Club 96.44 feet; thencerunning
by lot I and lot 2 on the planhereinafter described to the point ofbeginning as herein specified.
Being a portion of Lot #3 on that plan of land entitled: "Division ofLand in Fall River, Massachusetts, belonging to Green River RealtyTrust Scale: l" : 80', Date: July 14,1986, prepared by: Site WorkAssociates, Inc., 251 Bank Street, Fall River, Massachusetts",recorded with the BristoliCounty Fall River Registry of Deeds inPlan Book 79, Page 80, as deeded to Grantor by Instrument No.15885 recorded with said Registry of Deeds on October 1, 1986.
WESTERLY:
SOUTHWESTERLY:
EASTERLY:
NORTHEASTERLY:
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That portion of Lot 3 encumbered by the visual easement can be identified as that part
of Lot 3 lying between an extension of LSP's northern properly line in a westerly direction S.
89o 53' 55" West to Mount Hope Bay and BLM's southerly properfy line running N. 89o 59'
10" West for a distance of 96.44 feet. The southerly line of BLM's property and the northerly
line of LSP's property are shown on Exhibit 16. The visual easement is limited to that portion
of BLM's property lying southerly of LSP's northerly property tine. (Ex. 16, Line Table, Line
DA).
Although the language itself is clear, the issue as to what the term "structure" entails and
how it should be interpreted is vehemently contested and is central to this case. Simply stated,
whether BLM can be said to have violated the terms of this easement by storing boats that reach
19 feet above Mean See Level on its own property hinges upon whether a boat constitutes a
Ioostructure." In light of the applicable larr, the language of the easement grant, as well as the
attendant circumstances sulrounding the sarne, this Court must find that a boat is not a
"structure" within the purview of the easement.
The analysis as to whether a particular thing constitutes a "structure" is governed by the
general rules for the interpretation of easements. The Supreme Judicial Court has determined
that "[a]nything 'constructed or built' (dictionary defrnition) is a structure but whether a
particular thing constructed is within the meaning of the word as used in a statute, regulation, or
contract depends bn the context." Scott v. Board of Appeals of Wellesley, 356 Mass. 159, 161-
162,284 N.E.2d 281 (1969) (concluding that a swimming pool was a "structure" for purposes
of the set-back requirements of the Wellesley zoning by-laws, specifrcally noting that it waq a
"large permanent installation").
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In Sapah-Gulian v. Lomanno, 17 LCR 692 (Mass. Land Court 2009), the Land Court
was faced with the issue as to whether a swimming pool and retaining wall constituted
"structures" prohibited by a particular view easement. In the course of making its
determination, the Land Court considered the definition of the term as set forth in the local
zoning by-laws and Black's Law Dictionary. Id. at 11-14. The Land Court also noted the
divergent Massachusetts case law on whether particular things amount to structures in particular
contexts. Id. at 15, n. 11 (citing Williams v. Inspector of Bldgs. of Belmont,341 Mass. 188,
191, 168 N.E.2d 257 (1960) (finding that a tennis court was not a structure within the meaning
of a local zoning by-law); Millbury v. Galligon.37l Mass. 737,740 (1977) (finding that a
billboard was not a structure in context of the mechanic's lien statute)). Ultimately, the Land
Court determined that the swimming pool and retaining wall were "structures," in that they fell
squarely within the various definitions of the term. Id. at 16. Of particular consequence to the
Land Court was the size and permanence of the improvements. Id.
Other jurisdictions have likewise sought to interpret the meaning of the term "structure"
as used in restrictive covenants and easements. See e.g., Paye v. City of Grosse Pointe, 2i1
N.W. 826, 827 (Mich. 1937); Stewart v. Welsh, 178 S.W.Zd 506,508 (Tex. 1944); Conrad v.
(1957), the Supreme Judicial Court of Maine was called upon to interpret a restrictive covenant
that prohibited structures on a piece ofproperty so as to preserve a view to the ocean from the
property behind it. The pertinent terms of the covenant provided:
. . . and the said grantors hereby covenant and agree with the saidgrantee that upon the parcel of land lying in front of said lotNinety included between Bay View Avenue, and the sea, and theside lines of said lot Ninety produced to the sea, they will erect ormaintain no buildins or structwe of such a character as to
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intemrpt or interfere with'the view over said parcel from said lotNinety.
Id. at 536. The owner of the servient properfy had been using his property as a public parking
lot and the issue before the court was whether parked cars or buses constituted "structures"
under the covenant. Id. at 536-537. The court determined that they were not, "[t]he vehicles
are not buildings, nor do they have the characteristic pennanency which we associate with
structures." Id. at 537. The court went on to state that "[a] restrictive covenant ought not to be
extended by construction beyond the fairmeaning of the words," Id.
In the case at bar, a boat shouldinot be considered a structure prohibited under LSP's
visual easement. The terms of the easernent provide insight into the parties' intent involving its
grant. The document preserves "a view unobstructed by any structure in the area 19 feet above
Mean Sea Level on the premises . . . ." (Ex. a). Although the term "structure" is not
affirmatively defined within the easement itself, a list of items is set forth and specifically
excluded from the definition, namely "pilings, supporting piers and floats, hvac exhausts and/or
intakes which are reasonably screened, trees, shrubbery and picnic tables." Admittedly, this list
does not specifically exclude a boat from the definition of structure. But this language clearly
illustrates that the parties envisioned that BLM's property would be used for a marina. The
Lunds testified, without any evidence asserted to the contrary, that one of the ordinary seasonal
operations of a marina is to haul vesselsl out of the water, winterize them, and store them untilj
the boating season returns. (Tr. Vol. IVr96-101). Mr. Bouffard's testimony on behalf of LSP,
admitted a familiarity with marina operations, and he specifically acknowledged that while
boats are in storage they are not permanently affixed to the grotrnd. (Tr. Vol. I I40-I42).
There is nothing in the terms of the visual easement to suggest that the list in the visual
easement is complete and exhaustive. The list simply provides specific examples of items
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usually associated with a marina that rnight typically be considered a structure, and exempts
them from the purview of the easement. j See e.g., Meyer v. Donovan, 9 LCR 302,304 (Mass.
Land Court 2001) (finding that a pier and dock constituted a prohibited structrne under a
restriction); Monday Villas Property Owners Assoc. v. Barbe, 598 N.E.2d 1291,1293 (Ohio
App. 1991) (finding that radio antennas affixed to a condominium constituted a structure under
the condominium association's rules and regulations); Stewart v. Welsh, 178 S.W.2d at 508
(Tex. 1944) (finding that a fence was a prohibited structure under a restriction). It does not
follow that something that is clearly not a structure, for example a boat, would be prohibited
because it was not included in this list. This interpretation is clearly supported by the fact thpt
the items that are listed in the easement are cofllmonly associated with a marina and have an
element of permanence once set in place.,
The notion of permanence being an attribute of a structure cannot be denied. A
structure is defined by Black's Law Dictionary as *(1) Any construction, or any production or
piece of work artificially built up or composed of parts purposefully joined together <a building
is a structure>." BLecr's Lew DIcrtoNARy 1436 (7e ed. 1999). Moreover, as in the Sapah-
Gulian case where the court considered the local zoning by-laws for guidance in determining
the scope of the term "structure" as it pertained to a view easement involving two homes, the
applicable Massachusetts regulations goveming marinas and boatyards is the logical source for
guidance when determining the scope of that term to be applied to view easements overlookirig
a marina. Title 310, Section 9.00 et seq. of the Code of Massachusetts Regulations governs
waterways, including the marina's licensing, and defines a structure as
[A]ny man-made object which is intended to remain in place in,on, over, or under tidelands, Great Ponds, or other waterways.Structure shall include, but is not limited to, any pier, wharf, dam,seawall, weir, boom, breakwater, bulkhead, riprap, revetment,
26
jetty, piles (including mooring piles), line, groin, road, causeway,culvert, bridge, building, parking lot, cable, pipe, pipeline,conduit, tunnel, wire, or pile-held or other permanentlv fixedfloat. barge. vessel, or aquaculture gear.
310 C.M.R. $ 9.02 (emphasis added). (Ex, 23).
Thus, it is not surprising that the idea of permanence factors heavily in the decisions of
Scott v. Board of Appeals of Wellesley, 356 Mass.I59,284 N.E.2d 281 (1969), in which the
Supreme Judicial Court decided that a swimming pool was a "large permanent installation" and
thus a structure under applicable zoning by-laws, and Sapah-Gulian v. Lomanno, 77 LCP. 692
(Mass. Land Court 2009), in which the Land Court, relying heavily on the Scott decision,
determined the scope of a particular view easement. Likewise, in Leavitt v. Davis, 153 Me.i
279, 136 A.2d 535 (1957), the Maine Supreme Judicial Court wholly based its decision thht
automobiles were not structures on the fact that they lack the necessary permanence.
Similar to the automobiles in Maine's Leavitt decision, the boats stored on BLM's
property lack the necessary permanent nature to be considered a structure. BLM's storage of
the boats is largely seasonal and in fact works much like a parking lot. It is important to note
that not one of said boats is permanently affrxed to the land and, therefore, the boats do not fall
within the definition of a structure under the applicable regulations governing licensed marinas,
as well as any common notion of what constitutes a sffucture. See 310 C.M.R. $ 9.02.
The same logic applies to the travel lift used by BLM to lift boats out of the water and
transport them to different locations on BLM's property. The travel lift has four wheels and sis
driven around the marina property in exactly the same fashion as a truck. There is not a single
element of permanency applicable to the travel lift. (Tr. Vol. IV 97) (Tr. Vol. III 136-138).
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The terms of the visual easement must not be construed so as to include boats within the
definition of "structure." The language of the easement deed itself clearly evidences an
understanding between the parties that the BLM property was to be used as a marina and boats,
and their storage, are inseparable from such a use and were not intended to be prohibited by the
terms of the easement. As set forth above, Massachusetts law preserves the right of servient
properly owners to use their property in whatever lawful way they choose, consistent with the
terms of the easement. M.P.M. Builders. LLC v. Dwyer,442 Mass. at9l. Inthis case the
servient property owner, BLM, is using its property in precisely the way that was originally
contemplated at the time the visual easement was created and consistent with the intent of the
parties thereto.
Clear and convincing evidence of what the parties intended to be a "structure" at the
time the easement was drafted in 1986, and their understanding of that term in 1999, is the fact
that when LSP filed suit in 1999 alleging a violation of the visual easement, it only raised tlie
roof elevations of the two buildings on BLM's property. See Count I of LSP's Complaint,
paragraphs 25-30.It made no claim that a boat is a "structure" as that term is used in the visual
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easement, despite the fact that BLM was storing boats above 19 feet above MSL prior to 1999.
(Tr. Vol. III 138-140). It is also noteworthy that LSP did not address boats as "structures" in the
2006 Settlement Agreement either. (Ex. 39). It is obvious from the record that that thought did
not occur to LSP until2010.
LSP has not met its burden of proof that a boat is a "structure" as that term is used in the
visual easement. Therefore, BLM's use of its property to store boats 19 feet above the Mean
Sea Level does not violate the visual easement.
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B. THE ROOF TOPS OF THE "CAPT. E.G. DAVIS BUILDING'AND *GUARD SHACK'' DO NOT VIOLATE THE TERMS OF T}IE VISUALEASEMENT GRANTED TO LSP DATED SEPTEMBER 30, 1986.
LSP seems to have abandoned this part of its case. Although pleaded in its Complaint,
LSP offered no evidence of where the two buildings at issue are situated on Lot 3, or what the
elevations of their roofs are in relation to MSL or 19 feet above MSL. When LSP rested, BLM
moved for a directed finding on this issuq, and the Court reserved its ruling. BLM again moved
for a directed finding at the conclusion of its evidence, and, again, the Court reserved its ruling
pending a decision on all issues heard at fial.l
Having offered no evidence to support the claim that certain roof tops of BLM's
buildings violate the visual easement, judgment must enter for BLM dismissing that portion of
LSP's Complaint with prejudice.
C. BLMOS CONSTRUCTION OF A RETAINING WALL AND SEASONALSTORAGE OF BOATS SEAWARD OF THE RETAINING WALL, ALLWITHIN THE 20 FOOT NON-EXCLUSIVE EASEMENT AREA, DOES NOTINTERFERE WITH LSP'S RIGHT TO CONSTRUCT AND MAINTAIN ADRAINAGE SYSTEM AND A SLOPED, GRADED EROSION AND FLOODPROTECTION BARRIER.I
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The language in the grant of the non-exclusive easement and the historical development
of the marina by BLM provide clear evidenoe that BLM intended at all times relevant hereto to
use the easement area for marina purposes. The evidence at trial clearly establishes that it has
done so for over two decades by gradually developing its land as a marina in a southerly
direction along the common property line with LSP. Notice of its intention to do so is
indisputable based upon documents recorded with the Bristol County Fall River District
Regisky of Deeds. @xs. 1,2,4 ,5,7,9JAJ1,12,13 and l4). The photographs taken between 1986
29
and 2009 provide conclusive, uncontroverted physical evidence of the existing conditions in
1986 and in 2009, and how they changed during that time frame. @x. 3a). BLM has pleaded
laches, estoppel and waiver as defenses. It took 23 years to build the marina as it exists today,
and but for the litigation commenced in 1999, which for all practical purposes was abandoned
by LSP as of May 2000, LSP has sat on its rights and watched BLM expend its time, effort and
money to build the retaining wall as an integral part of the marina. To complain now about the
use of the easement area for marina purposes is the epitome of inequity, and barred by the
defenses raised. i
In addition, it is significant to point out that when LSP filed suit in 1999, the action
complained of was not the construction bf *re retaining wall within the 20 foot non-exclusive
easement area, but rather the storage of boats on the top and sides of the bank. The importance
of this point is the when the Court interprets the easement, it must attempt to ascertain the intent
of the parties to the easement when drafted. When suit was filed in 1999, a large portion of the
retaining wall was already constructed, yet LSP did not challenge BLM's right to build the wall.
It did not do so until it amended its complaint in 2010. Therefore, in addition to the laches
argument, it is BLM's position that LSP's omission to challenge the retaining wall in 1999 is
due to LSP's understanding that the non-exclusive easement allows the marina to use the 20
foot easement area for marina prrrpor"r,,including building a retaining wall, an understanding
evidenced by its actions until it concocted its present argument in 2010 that the retaining wall
violates the easement. The record in this case clearly supports this conclusion as to LSP's
understanding of BLM's right to build a retaining wall as part of its marina operations. LSP
offered no evidence of an undersknding to the contrary. Additional evidence of LSP's state of
mind is the 2006 Settlement Agreement which provides for construction of a retaining wall to
30
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within l0 feet of LSP buildings and pool. (Ex. 39). In fact, LSP did not offer any evidence at
trial from which the Court could conclude that the original intent of the parties to the easement
was consistent with LSP's position in 1999 or 2010. Having failed to offer any such evidence,
LSP has not met its burden of proof. LSP's emphasis at trial was BLM's activities in 2008 and
2009 and how it effects the individual board members. rather than LSP as a.whole.
BLM does not contest LSP's right to challenge in the appropriate forum the construction
methodology employed by BLM to build the wall; that is, its structural integrity should LSP
choose to do so.3 BLM argues that the issues now before the Court are whether or not the
language of the non-exclusive easement allows the construction of a retaining wall within the!
easement area and the use of part of the easement area for marina related pu{poses, and not the
structural integrity of the wall. A claim of negligent construction is not within the jurisdiction
of the Land Court under M.G.L.A. c.185; Sec. 1(k) as there is no underlying dispute concerning
a proprietary interest in land. The property lines delineating ownership and the location of the
easements are not in dispute. Therefore, there is "no right, title or interest in land" within the
meaning of the statute. Shepoard v. Lansone, 16 LCR 155, 156157 (2008).
BLM maintains ttrat it has this right to build the retaining wall within the non-exclusive
easement area, and to use the non-exclusive easement area for marina purposes. Specifically,
the detailed and comprehensive testimony of Dr. Peter Rosen, Ph.D., Coastal Geologist,
supports a finding that the retaining wall accomplishes what LSP is entitled to under the no[-I
exclusive easement; that is, it provides:a sloped, graded erosion control and flood protection
barrier. BLM argues that a retainingi wall exceeds the effectiveness of the pre-existing
t BLM filed a Motion in Limine that was heard by the Court prior to the start of evidence. The Court ruled on themotion concluding that it would not hear evidence of damage to individual units and reserved its ruling on the
allegation of negligent construction. (Tr. Vol. 123-24).
31
conditions for erosion control and flood protection, and that the area above the retaining wall
continues to be sloped and graded in a manner reasonably consistent with the intent of thp
parties to the easement. In fact, LSP itself built a retaining wall within, or immediately adjacent
to, the 20 foot easement area when it added six feet onto the wall built by BLM in front of
buildings 1land 12.Thatretaining *att,ias modified by LSP, serves as an erosion control and
flood protection barrier in exactly the same manner as the wall constructed by BLM.
BLM also points out that at no time did LSP undertake any action to "construcf' a
sloped, graded erosion control and flood protection barrier and that the pre-existing conditions,
including the earth embankment, were created by BLM in the course of building the marina in
phases. As noted above, when LSP did want to take some action within the 20 foot easement
area, it constructed a vertical retaining wall by adding onto the height of a wall built by BLM.
Having done so, LSP has conceded by its actions the right to build a retaining wall within the
easement area and that such a wall will serve the purposes of the easement. Therefore, it
follows that it is within BLM's reserved rights under the easement to change the existing
conditions by building a retaining wall so long as the rights of LSP are not infringed upon.
ln support of its argument that BLM can build the retaining wall and store boats within
the easement area without interfering with LSP's easement rights, BLM relies upon the direct
examination of Dr. Peter S. Rosen. Ph.D. and the cross-examination of Donald N. Leffort, P'E.
Dr. Rosen has a Ph.D. in marine science with a concentration in geological oceanography and
holds a Master's degree in geology with a specialization in coastal geology. (Tr. Vo. III 184).
He is also a Certified Professional Geologist. (Tr. Vol. III 185). At trial Dr. Rosen was
qualified to render an opinion as a coastal geologist. (Tr. Vol. III 187). Prior to his testimony,
he visited the site on three occasions, [eviewed the Ch. 91 Waterways License documents,
32
historic plans, a range of historic photographs, and examined the nature of Mt. Hope Bay. (Tr.
Vol. III 188-189). Dr. Rosen identified and described the two coastal banks on the BLM
property, explained what a coastal bank is, the different types of coastal banks and the purpose
they serve. (Tr. Vol. III 189). He testified that a coastal bank could be natural or manmade and
could be a vertical wall. (Tr. Vol. III 190-191). Dr. Rosen testified that the coastal bank at issue
in this case acts as a vertical buffer to flooding and flood damage. (Tr. Vol. III 191). Dr. Rosen
walked the upper and lower levels of the retaining wall each time he was there. (Tr. Vol. III
195). Dr. Rosen described the entire length of the retaining wall as the upper coastal bank. (Tr.
Vol. III 196). He described the area off the top of the wall at the upper bank as a grassy slope
extending to the condominium buildings. He described a drainage system and a fairly uniform
grassy slope. (Tr. Vol. III 197). Dr. Rosen testified that a vertical coastal bank, comprised of
concrete, has a low likelihood of erosion, with less potential of erosion on top of the bank due
to a gentler slope causing a lower velocity of backwash. (Tr. Vol. III 199). He defined the
terms "slope" and "graded" (Tr. Vol. III 199-2A0), and he defined a'osloped graded erosion arid
flood protection barrier" as follows:
a. As a coastal geologist, could you tell me what a sloped graded erosion and flood
protection barrier means tti you?
A. A flood protection barrier is some form that retards flooding, elevated water
level. A sloped graded erosion and flood protection barrier means it has slope to
it. It means one end is higher than the other, which can involve any level of
slope, from a very slight increase in elevation to vertical and graded means that
it is a smoothed off, leveled surface on that slope.
(Tr. Vol.III201).
JJ
Dr. Rosen testified that the vertical wall that he observed dwing his site visits provides
erosion control and flood protection for the LSP property, and he described how the wall
accomplishes the protection, that is, he explained the basis for his opinion. (Tr. Vol. III 205-
206). His opinion applied to the entire length of the retaining wall. (Tr. Vol. III 206). He also
testified that a properly constructed retaining wall provides flood protection and erosion control
superior to that of the coastal bank observed in the pictures of pre-existing conditions hpi
reviewed. (Tr. Vol. III 209-210). Dr. Rosen testified that the segmented block wall that he
personally observed on the southerly 650 feet of the site provides flood protection and erosion
control for LSP superior to that which is shown in the photos he reviewed of prior existing
conditions. (Tr. Vol. tV 48).
Mr. Donald N. Leffort testified for LSP as to his opinion of the construction of the
retaining wall. (Tr. Vol. I 169). The Court noted that whether the wall was constructed well or
poorly is really not the critical issue in the case, which the Court identified as how does the wall
affect the erosion and drainage rights of LSP, and the location of the wall within the easement.
(Tr. Vol.I178-179).
He testified that he was retained by LSP to give an opinion on the wall between tJte
south end of LSP's property and the southwest corner of Building 5. (Tr. Vol. I 225). He
testified that segmented walls can be used in proximity to water. (Tr. Vol. | 212). He testified
that he examined about 500 feet of the wall. (Tr. YoI. I 227). Mr. Leffort's opinion as to the
lack of geofabric behind the wall was based upon four eight-inch test holes over a 500 foot
length of wall. (Tr. Vol. I 230). He admitted to having no knowledge as to the length of the
geofabric behind the wall over the remaining 496 feet. (Tr. Vol. 1230-231). He offered no
opinion as to the wall lying north of the southwest corner of Building 5. (Tr. Vol. I231). Mr.
34
Leffort admiued that installing geofabric;is not the only way to stabilize the wall. (Tr. Vol. I
232-234). He also testified that he measured the wall for movement at four different points a
total of 24 times over a three-month period and detected movement of one inch at one point.
The last measurement was in April 2010. (Tr. Vol. I 236-2lS). Mr. Leffort admifted to
rendering his opinion without consideration of prior uses or disturbances of the bank on the site.
(Tr. Vol. I 23S). He testified that photographs of previous conditions of the embankment
showed signs of erosion. (Tr. Vol. II 31-37). Mr. Leffort agreed that given the soil materials
shown in Exhibit 34, Photographs 9, 10, 11, 12,31,37 and 38, a retaining wall would give LSP
greater erosion control and flood protection than what was shown in the photographs. (Tr. Vol.
II 44). Mr. Leffort was not retained as an expert/consultant relative to LSP's drainage system
and, accordingly, offered no opinion on that topic. (Tr. Vol. II 45).
One of LSP's other experts, James Holmes, likewise agreed on cross-examination that a
segmented wall is suitable as a retaining wall in coastal areas, and that he questioned the wall
construction, not the use of a retaining wall as an erosion control and flood protection barrier.
(Tr. Vol. II 139-140). He also only testified as to the block wall at the southerly end of the
property. (Tr. Vol. II 140).
LSP also called Mr. Sterling Wall as an expert witness. His deposition transcript with
Exhibits was marked as Exhibit 30. His deposition testimony focused on the excavation of t$e
coastal bank (Ex. 30 P. 75). He testified that he was unaware of the historical use of the
property as a railroad facility and admitted that a coastal bank may include man-made materials.
(E. 30 P. 75). BLM refers the Court to Exhibit 30 and the objection raised thereon by Attomey
Kevin J. McAllister, who represented BLM at the deposition.
35
Based upon the testimony of both Dr. Rosen and Mr. Leffort, a vertical retaining wall ls
suitable as an erosion and flood protection barrier. The easement, as identified in its caption, is
a non-exclusive easement. The retainingrwall acts as an erosion and flood control barrier. The
area above the wall is sloped away from the LSP property line. It is, or has been in the past,
graded and maintained by LSP. Nothing in the easement gives the residents of LSP the right to
walk within the non-exclusive easement area. Nothing in the easement identifres the slope or
grade to be constructed or maintained by LSP or provides a basis upon which the Court can find
that either the existing slope or grade above the retaining wall violate the language of the
easement.
LSP chatlenges the suitability of a retaining wall to provide erosion control and flood
protection to LSP's property, yet that is exactly what LSP did when it added onto the cement
retaining wall in front of Buildings 10 and 11. (Tr. Vol.I[. 106-107) (Tr. Vol. IV 83-84).There
are no legally tenable grounds upon whioh LSP can argue that the wall it constructed in front of
Buildings 10 and 1l is allowed under the terms of the non-exclusive easement, but the wall as
constructed by BLM is not. Mr. John Lund testified the Keith Development, Inc. constructed
an observation deck within the 20 foot easement. He testified that it was required under the c.
91 Waterways License. (Tr. Vol. IV 85). The observation deck is shown on Exhibit 7, page 12
of 15 as "Overlook No. 3". Also, since building the retaining wall in front of Building 10 and
11, LSP has not exercised the right to construct and maintain a sloped, graded erosion and flood
protection barrier anywhere within the easement area. LSP accepted what BLM built without:
complaint until 2010, a year after it was completed.
Furthermore, BLM has the right to relocate the sloped, graded erosion and floodi
protection barrier so long as it does not interfere with the purpose of the easement. M. P.M.
36
Builders. LLC v. Dwvel 442 Mass. 87; 809 N.E.2d 1053 (2004). In M.P.M. Builders, LLC,
the Supreme Judicial Court adopted the Restatement (Ihird) of Property (Servitudes) $4.8
(2000). In adopting $4.8, the Court held as follows:
We conclude that $ 4.8(3) is consistent with these principals in itsprotection of the interests of the easement holder: a change may notsignificantly lesson the utility of the easement, increase the burden on theuse and enjoyment by the owner of the easement, or frustrate the purpose
for which the easement was creatqd.
M.P.M. Builders. LLC,442 Mass. At 91. @91.
Although the M.P.M. Builders, LLC, Court noted that a servient owner may not resort
to self-help remedies, the evidence in this case is such that the Court can find that as BLM built
the retaining wall over the last two decades, it had good reason to believe that it was doing so
with the assent of LSP. That is a finding warranted by the evidence notwithstanding LSP's
untimely Complaint for Contempt. Based on its actions, LSP as dominant estate owner should
not now be allowed to raise the "self-help" defense to BLM's use of the non-exclusive
easement in an effort to avoid the rule of law established by the SJC in M.P.M. Builders.
As in M.P.M. Bqilders, the deed and grant creating the easement in this case do not
expressly prohibit relocation. Therefore, BLM may relocate the easement at its own expense
provided the change in location does not significantly lessen the utility of the easement,
increase the burden on LSP's use and enjoyment of the easement, or frustrate the purpose for
which the easement was created. ld. at 94. Based upon the evidence at trial, BLM has satisfied
each of the conditions of the Restatement (Ihird) of Property (Servitudes) S4.S(3) (200q.
LSP is seeking a mandatory injunction compelling BLM to remove the retaining wall
and restore the embankment to its prior condition. BLM has raised the defenses of laches ar'rd
waiver. BLM activities have occuned in full view of LSP over a period of more than two
37
decades. LSP, by itself adding onto a retaining wall, has actively participated in the precise
activity of which it now complains.
It is well established that injunctive relief may be refused where the Plaintiffis guilty of
estoppelorlatches. Malinoskiv. D. S.McGrath.Inc.,283 Mass. l, 11, 186N.8.225,(1933);
In the case at bar, LSP, through its Board of Managers, testified that it was aware at all times
that the retaining wall was being constnicted, with each witness claiming ignorance of LSP's
legal rights, despite documents to the contrary. Incredibly, they testified that they believed that
the construction by BLM to be legal because the Lunds told them so. Now, after completion of
the wall, LSP argues it has been advised of its legal rights and seeks removal of the wall.
Removal will be a severe burden on BLM. It will cost a lot of money, cause much
inconvenience, and reduce usable marina space within the non-exclusive easement area. BLM
does not seek to use the doctrine of laches as a sword, which is to gain rights by overburdening
an easement, but rather as a shield to protect it from and avoid an inequitable result.
Although LSP did file suit in 1999 raising issues relative to the roof tops of the Capt. E.
G. Davis building and the Guard Shack buildings, alleging they violated the visual easement
(Cognt I), LSP did not challenge the construction and placement of the retaining wall within the
20-foot non-exclusive easement until it ainended its complaint in October of 2010, a few weeks
before the start of trial. The Amended Complaint in 2010 challenges BLM's construction of
part of the retaining wall between building 5 and LSP's swimming pool in 2000, ten years after
the fact. The Amended Complaint likewise challenges the retaining wall construction in 2008
and 2009, well after ttr. "orlrt*ction
of the wall was completed, and 23 years after the first
retaining wall was constructed within the 20-foot non-exclusive easement area. The case was
38
pending from February 1999 to October 2010 before LSP raised its objection to the retaining
wall as being in violation of the 20-foot non-exclusive easement.
LSP unjustifiably delayed in prosecuting its challenge to the construction of the
retaining wall within the non-exclusive easement area. It was represented by counsel at all
times relevant hereto. It had actual knowledge of the construction activity by BLM, and in fact,
participated in the construction of a portion of the wall and expressed appreciation to BLM for
the construction of another part of the wall by way of a written thank you letter in Octobe{,
2008 and by reference in its news letter of March, 2009. (Exs. 38 and 40). The thank you note
and newsletter both referenced the segmbnted block wall. BLM reasonably relied upon LSP's
implied consent to the construction of the wall as evidenced by the actions of LSP's Board of
Managers. BLM has been prejudiced by LSP's unjustified delay of two decades in challenging
BLM's right to construct the wall.
To the extent that LSP argues that the equitable defense of laches is not available to
BLM because it acted inequitably, that argument must fail. BLM anticipates that LSP will
claim that BLM acted in bad faith by not securing all necessary government permits to
construct the retaining wall. BLM disagrees with that contention and again refers the Court to
its Motion in Limine filed at the start of trial and the Court's ruling thereon. In any event, the
governmental permits identified by LSP do not determine private property rights. See also the
permits, Orders of Conditions and licenses that BLM did obtain. (Exs. 7, 9,10,17,12,13,14,25
and26). Judicial review of the applicability of various statutes, regulations, codes or ordinances
is premature without a determination that aliadministrative remedies have been exhausted. LSP
offered no such evidence.
39
Again, as noted above, LSP's inaction is the result of its understanding that the
easement is non-exclusive, and that BLM may use the easement area
long as it does not interfere with LSP',s rights under the easement'
understanding despite a clear record contrary to its current position'
for marina Purposes so
LSP now denies that
D. LSP'S COMPLAINT FOR CONTEMPT.
At its first appearance before the court on the Plaintiff s complaint for contempt'
BLM admitted that portions of the retaining wall built by it were built subsequent to the May
23,Ixxl,preliminary injunction. The Defendant's reasons for working within the 2O-foot noni
exclusive easement were set forth at trial and argued in the brief'
tse, BLM asks that the Court hearShould LSP seek attomey's fees in the contempt ca
that matter on a motion with all parties having the opportunity to offer testimony and briefs on
the issue as to whether or not an award of attorney's fees are warranted given the admission of
BLM as early as July, 20 I 0, that work took place after May 23 ' 2A00 ' BLM challenges LSP' s
right to attorney's fees given the minuscule effort expended to prove its case, and the unclean
handsoflSP. 1
BLM likewise admitted the encroachment in its answer and o$ergd to move 't'"
"| a
gry"gg portion of the yun.!." BLM's Amended Answer to the Amended complaint,
paragraph 60. For feasons known only to it, LSP persisted in prosecuting its trespass claim at :
trail despite BLM's answer to the amended complaint and its offer to move the offending part
of the retaining wall. LSP never responded to the offer'
E. BLM'S TRESPASS ONTO LSP'S PROPRTY BY A PART OF
ITS RETAINING WALL.
40
LSp pleaded in Paragraph 60 of its Amended Complaint that BLM erected part of the i
i
retaining wall on its property. To the extent that such allegation is true, BLM has offered to i
move the wall from LSP's property to eliminate any encroachment' See paragraph 60 of
BLM's Amended Answer to Amended Complaint. Mr. John C. Lund also testified at trial that
BLM was willing to move the wall. LSP has not responded to that offer. The alleged
encroachment is at the extreme southerly end of the property in the vicinity of the access road
from Club Street. (Ex.21).
F. BLM'S COT]NTERCLAIMS FOR TRESPASS.
Mr. James Hall testified at trial on behalf of BLM relative to Exhibit 43 and the
encroachments shown thereon. (Tr. Vol. III 55-90). LSP offered no credible evidence to rebut
the testimony of James Hall or the evidence of trespass set forth in Exhibit 43. LSP attempQd
to discredit Mr. Hall's testimony by way of another plan which did not depict the
encroachments. (Ex. 21). NIr. Hall testified that the encroachments were not shown on Exhibit
21 because it was prepared for a different purpose; however, Exhibit 43 was prepared to show
building encroachments onto BLM property. Exhibit 21 was prepared to show elevations for
Federal Emergency Management Agency (FEMA) pu{poses'
BLM also challenges the right of LSP's managers, agents, servants, employees and
members to enter onto BLM property to mow grass and to cut down and remove trees and
protective plants. BLM relies upon the clear language of the easement document in support of
its legal position. @x. 5).
G. CONCLUSION
For all of the reasons set forth above, LSP's claims that BLM has violated the Visual
Easement and/or the 20 footNon-Exclusive easement, in any manner' must be dismissed'
4l
As to BLM's counterclaim, LSP failed to offer any evidence to rebut BLM's evidence
that LSP's building improvements are encroaching upon BLM's properly and that such
encroachments constitute a trespass. Accordingly, BLM is entitled to judgment in its favor on
its claim of trespass and an order that all such encroachments be removed and the property
restored to its prior condition.
LSP's clairn that BLM is trespasging onto LSP's property by way of a portion of the
retaining wall at the southerly end of the property is addressed above. BLM stands by its