Wellesley Conservation Council, Inc. v. Pereira

Decision Date10 August 2020
Docket NumberNo. 19-P-753,19-P-753
Citation153 N.E.3d 413,98 Mass.App.Ct. 194
Parties WELLESLEY CONSERVATION COUNCIL, INC. v. Robert W. PEREIRA, Second, Trustee, & others.
CourtAppeals Court of Massachusetts

The case was submitted on briefs.

A. Lauren Carpenter, Boston, for the plaintiff.

F. Alex Parra & Louis N. Levine for Robert W. Pereira, II, & another.

William L. Boesch, Lisa C. Goodheart, & Alessandra W. Wingerter, Boston, for The Trustees of Reservations & another, amici curiae, submitted a brief.

Present: Vuono, Lemire, & McDonough, JJ.

LEMIRE, J.

Wellesley Conservation Council, Inc. (Council), holds the "perpetual right to enforce" a conservation restriction on property owned by Robert W. Pereira, II, and Cheri L. Pereira, as trustees of the 19 Pembroke Road Realty Trust (collectively, Pereiras). The Pereiras did not dispute that they violated the conservation restriction by cutting and removing mature trees and other vegetation to construct a sports court and, after the Council commenced this action to enforce the conservation restriction, they agreed to restore the property to its natural state. The Pereiras also agreed to pay the Council's reasonable attorney's fees and costs, and acquiesced to the Council's request for declaratory and injunctive relief, but they did not agree to pay damages. On cross motions for summary judgment, a judge of the Superior Court ordered the Pereiras to remediate the property but concluded that the Council's right to enforcement did not include a right to obtain monetary damages. As a result, summary judgment entered in favor of the Council on most of its claims, and in favor of the Pereiras on those counts of the Council's complaint that sought damages for the permanent loss of the trees. Because we conclude that the right to enforce the restriction encompasses a right to recover money damages in an appropriate case, we reverse the judgment in part.3

Background. 1. Conservation restriction. The following facts are undisputed. In 2013, the Pereiras purchased the home where they now live at 19 Pembroke Road in Wellesley. Two years later, in 2015, they purchased an abutting parcel of land consisting of 2.755 acres. The parcel is designated as 15R Pembroke Road (locus). At the time of the purchase, the locus was burdened by a conservation restriction4 pursuant to G. L. c. 184, §§ 31 - 33. The conservation restriction's stated purpose was to preserve the locus "in its natural, scenic and open condition."5 The conservation restriction grants to the Council, a private, nonprofit entity whose purposes include conservation of land in and around the town of Wellesley, the perpetual right to enforce the restriction.

Although the Pereiras were aware of the restriction and its terms and requirements, within a year of purchasing the locus, they violated the restriction by clearing trees and vegetation, including destroying over twenty-three mature red oak and white pine trees, excavating and grading a portion of the land, and installing a large sports court with fencing and lighting.

When communications between the Pereiras and the Council did not result in resolution of their issues, the Council commenced this action claiming in count I that the Pereiras had committed a breach of the conservation restriction, in count II that they had wrongfully cut trees pursuant to G. L. c. 242, § 7, in count III that the Pereiras had been unjustly enriched, in count IV that the Council is entitled to declaratory relief, and in count V that the Council is entitled to a permanent injunction. The Council sought orders requiring the Pereiras to restore the locus as closely as possible to its prior condition, pay damages as permitted by law, including treble damages under G. L. c. 242, § 7, and pay costs and attorney's fees as provided by law, including G. L. c. 184, § 32.

As previously noted, the Pereiras admitted that the locus is burdened by the conservation restriction, and that their conduct in removing mature trees and vegetation from and excavating the locus, along with constructing an unauthorized sports court, fencing, and lighting, violated the conservation restriction. In addition, they conceded that the Council was entitled to payment of its attorney's fees and costs incurred to enforce the conservation restriction, pursuant to G. L. c. 184, § 32.6 The Pereiras filed a cross motion for summary judgment requesting that judgment be entered against them on all counts except count II, trespass to trees pursuant to G. L. c. 242, § 7, and to the extent that any other count included a basis for imposition of monetary damages other than attorney's fees. In opposition, the Council argued that judgment should enter in its favor on all counts, and that the judgment should include attorney's fees and costs, and monetary damages in addition to a restoration order because the restoration plan will take years to restore the locus to its prior condition.

In support of their cross motion for summary judgment, the Pereiras submitted a copy of the restoration plan prepared for the Council and to which, at least as to the remediation portion, the Pereiras ultimately agreed to comply. The restoration plan required the planting of new saplings to replace the mature trees. The saplings were to be smaller both in height and trunk width than the mature trees that had been destroyed.7 The plan proposed a compensatory payment of $72,750, consistent with a methodology used to calculate recommended contributions to the Wellesley Tree Bank based on the size differential of the replacement trees and the mature trees that had been destroyed.

The Pereiras and, ultimately, the judge rejected the proposed compensatory payment. The judge entered summary judgment in favor of the Pereiras, concluding that the Council is not an "owner" as that term is used in G. L. c. 242, § 7, and the Council's right to enforce the conservation restriction does not include a claim for money damages.

2. Agreement for judgment. After the summary judgment decision, the scope of the restoration plan and declaratory and injunctive relief, along with the amount of the Council's attorney's fees and costs remained outstanding and final judgment did not enter on any count. At another hearing, with the encouragement of the judge, the parties settled the outstanding issues and filed a proposed judgment that was changed to an agreement for judgment. In addition to resolving the attorney's fees and costs issue and the scope of the restoration order, consistent with the summary judgment decision, the agreement for judgment provided that judgment would enter against the Council on their request for monetary damages. Judgment entered on all counts on August 16, 2018.

Thereafter, the Council filed a notice of appeal from the judgment. The Pereiras responded by filing in the Superior Court an emergency motion to strike the notice of appeal because, they argued, by executing the agreement for judgment, the Council waived its right of appeal. The judge denied the motion, noting that nothing in the agreement for judgment indicated that the Council waived its right to appeal the hotly contested summary judgment decision and in the absence of an express waiver, he would not infer an intention to waive appeal from the summary judgment decision.8 The Pereiras thereafter filed a notice of appeal from the judgment and from "those judgments, rulings, and orders of the Superior Court adverse to them in this action."

Discussion.9 " [S]tatutory interpretation is a question of law for the court to decide,’ Annese Elec. Servs., Inc. v. Newton, 431 Mass. 763, 764 n.2 (2000), and can be appropriately resolved by summary judgment if there is no real dispute as to the salient facts, Community Natl. Bank v. Dawes, 369 Mass. 550, 553 (1976)." Molly A. v. Commissioner of the Dep't of Mental Retardation, 69 Mass. App. Ct. 267, 277, 867 N.E.2d 350 (2007). "We review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law."

Boss v. Leverett, 484 Mass. 553, 556, 142 N.E.3d 1113 (2020), quoting Galenski v. Erving, 471 Mass. 305, 307, 28 N.E.3d 470 (2015).

1. Enforcement of conservation restriction. The Council argues that it is entitled to monetary damages alternatively under G. L. c. 184, §§ 31 - 32, because the restoration plan did not immediately restore the locus to its prior condition or, under G. L. c. 242, § 7, for the willful trespass to trees. We first address G. L. c. 184, §§ 31 - 32. Conservation restrictions are defined by G. L. c. 184, § 31 :

"A conservation restriction means a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land ... appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or ... to forbid or limit any or all (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials, (c) removal or destruction of trees, shrubs or other vegetation, (d) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface, (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition, ... or (g) other acts or uses detrimental to such retention of land or water areas."

"In passing the Conservation Restriction Act, G. L. c. 184, §§ 31 – 33, the...

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