Woods v. Brimm
| Decision Date | 02 August 2010 |
| Docket Number | 2007018 |
| Parties | Dr. Warren Woods et al. [1] v. Linda Brimm et al. [2] No. 112557 |
| Court | Superior Court of Massachusetts |
Caption Date: August 2, 2010
Judge with first initial, no space for Sullivan, Dorsey, and Walsh Nickerson, Gary A., J.
This action involves a dispute between neighboring landowners. In this case, the plaintiffs, Dr. Warren Woods and Joann Woods (the "Woodses"), claim that their oceanfront property has been damaged by their neighbors' construction and maintenance of their coastal rock revetments.[3] The Woodses seek relief against their neighbors (Linda Brimm and the others listed in note 2) and the engineering firm which designed a portion of the revetments, Coastal Engineering, Inc. ("Coastal").
Specifically the Woodses' Second Amended Complaint[4] states six claims intentional tort, construction and maintenance of revetment (Count 1) and failure to conduct beach nourishment (Count 2) negligence, maintenance and construction of revetment (Count 3) and failure to conduct beach nourishment (Count 4); private nuisance (Count 5); and declaratory judgment pursuant to G.L.c. 231A (Count 6).[5] At the summary judgment hearing held on April 9 and 12, 2010, counsel for the Woodses acknowledged that the Woodses' intentional tort claims are based on trespass.[6] The court will therefore refer to and analyze Counts 1 and 2 as trespass claims throughout this decision.
Several defendant landowners have brought cross-claims. Lois and Fred Armstrong ("Armstrongs"), Linda and Michael Brimm ("Brimms"), Ted Bilodeau ("Bilodeau"), Jacqueline Collins ("Collins"), Dana and Deborah Drew ("Drews"), Richard McLaughlin and Peter Marino ("McLaughlin-Marinos"), Maureen and Dave Moriarty ("Moriartys"), and Doris and Russell Olive ("Olives") (collectively "Cross-Claim Defendants") have brought cross-claims against all the other defendants, including Coastal Engineering, Inc. ("Coastal"), for contribution and indenmification.[7] The Brimms' Amended Cross-Claim[8] added breach of contract and breach of fiduciary duty claims against Coastal based on its alleged agency relationship with the former owner of the Brimms' property, under which Coastal supervised construction of the Brimm revetment. Coastal has filed cross-claims against the Armstrongs, Bilodeau, the Brimms, Collins, the Drews, the McLaughlin-Marinos, the Moriartys and the Olives.[9]
Bilodeau, the Drews, the McLaughlin-Marinos, the Moriartys, and the Olives (collectively "Motion Defendants") now move for summary judgment on the Woodses' Second Amended Complaint.[10] Coastal also seeks summary judgment on the Woodses' claims and on the cross-claims alleged by the Cross-Claim Defendants. For the following reasons, the motions of Bilodeau, the Drews, the McLaughlin-Marinos, the Moriartys, and the Olives are ALLOWED as to Counts 2, 4 and 6 of the Woodses' Second Amended Complaint, ALLOWED in part as to Count 1, and DENIED as to Counts 3 and 5. Coastal's motion is ALLOWED as to Counts 1, 3, 5, and 6 of the Woodses' Second Amended Complaint and also ALLOWED as to the Cross-Claim Defendants' claims.
The Woodses own oceanfront property at 150 Third Street on Lieutenant's Island in Wellfleet, Massachusetts ("Woodses Property"). The Woodses Property is located east/northeast of the Motion Defendants' neighboring properties. The Motion Defendants' properties border the western shore of Lieutenant's Island: Bilodeau at 100 Second Avenue; the Brimms at 155 Third Street; the Drews at 80 Second Street; the McLaughlin-Marinos at 114 Fourth Street; the Moriartys at 35 Arthur Cashin Way; and the Olives at 113 Fourth Street.
Lieutenant's Island is located in Wellfleet Harbor. Lieutenant Island's coast is subject to wave, current, and tidal forces, which cause the erosion and accretion of sand.[11] Historically, the beach and coastal dunes bordering the Woodses property grew through accretion from sand carried along the coast by wind, currents and waves. The sand deposited in front of the Woodses property originated on the beaches, dunes and coastal banks of the Motion Defendants' properties.[12] Since the construction of revetments along the Motion Defendants' properties much less sand has been deposited in front of the Woodses property and the sand that historically accumulated has eroded away, thereby exposing the Woodses property directly to erosion from strong currents and storm waves.
In 1982, the Massachusetts Department of Environmental Protection ("DEP") issued a Coastal Wetland Protection Order pursuant to G.L.c. 130, §105 ("DEP Order"), identifying wetland resources entitled to protection on Lieutenant Island. The DEP Order prohibited certain activities, stating: "no person shall perform any act or use any coastal wetland in a manner which could destroy natural vegetation of the coastal wetland, substantially alter existing patterns of tidal flow, obstruct the movement of sediment or alter the natural contour of the coastal wetland." At the same time, the DEP Order allowed "bank and dune stabilization and coastal engineering structures which are otherwise approved under all applicable municipal, state and federal laws... where such structures will have no adverse effects on adjacent property or downcoast areas."
Between 1980 and 2000, several of the defendants sought to construct stone revetments to protect their properties from erosion.[13] Construction of a revetment required a G.L.c. 91 license ("License") as well as approval under the Massachusetts Wetlands Protection Act ("WPA")[14] and an Order of Conditions ("OOC") under Wellfleet's Wetland Protection Bylaw or a Superceding Order of Conditions ("SOOC") under the WPA. The DEP and the Wellfleet Conservation Commission ("Commission") issued several Licenses and OOCs/SOOCs, some of which contained special conditions ordering nourishment[15] of the revetments with sand. In most instances, the revetments were designed and constructed as separate projects by different engineers under individual contracts with landowners.
Bilodeau Revetment:
In 1993, Bilodeau filed a Notice of Intent ("NOI") with the DEP to construct a coastal rock revetment on his property at 100 Second Avenue. On October 19, 1995, the Commission issued an OOC establishing special conditions to be met prior to construction of the Bilodeau revetment, including: removal of metal posts from the beach; maintaining the construction area free of excess rocks; documenting the staging and construction area by photographs; submitting a final construction protocol to interested parties; and obtaining written approval for access to neighbor John Collins' beach. On October 25, 1995, Bilodeau received a construction permit from the Commission. Bilodeau hired engineering and land surveying firm Felco, Inc. to design, and EZ-DoZE-IT to construct the revetment. Following completion of the revetment, on June 5, 1997, the Commission provided Bilodeau a Certificate of Compliance ("Certificate"). The Commission did not specify any continuous conditions when issuing the June 5, 1997 Certificate.
Drew Revetment:
On April 7, 1988, the Drews filed an NOI with the Commission to build a revetment on their property at 80 Second Ave. On September 26, 1988, the Commission issued the Drews an OOC that contained several special conditions. Special conditions 6-9 provided:
On March 21, 1991, following the completion of the Drew revetment, the Commission issued a Certificate, which required no continuing special conditions.
McLaughlin-Marino Revetment:
The McLaughlin-Marinos purchased their property, 114 Fourth Street, on November 12, 2004. The McLaughlin-Marino Property was recorded at the Barnstable Registry of Deeds as lots 16, 17, and 18 of Block 48 in Plan Book 34 and did not include lots 14 and 15 upon which the revetments sits. After becoming aware that they did not own lots 14 and 15, on October 2, 2006, the McLaughlin-Marinos purchased lot 15, where the top portion of the revetment is located. The Massachusetts Audubon Society, which is not a party to this action, owns lot 14 where the lower part of the revetment is located. The revetment was constructed in approximately 1985, following the issuance of SOCC #SE-77-189 to the former owner of 114 Fourth Street, David Knight.
Moriarty Revetment:
On July 13, 1994, David Moriarty filed an NOI to build a rock revetment on their property at 35 Eighth Street. The Commission issued an OOC on October 18, 1994, that did not impose any requirement to renourish the proposed revetment. On June 5, 1997, the Commission provided the Moriartys a Certificate, which indicated that the work approved by the OOC had been satisfactorily completed.
Olive Revetment:
Charles Gasek, the former owner of the Olive Property, filed an NOI on April 11, 1988, and obtained DEP license No. 9120 and OOC #SE-77-407 on November 1, 1987, for construction of a rock revetment. The OOC stated a special condition, that "the beach is renourished with sand of...
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