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Wellesley Conservation Council, Inc. v. Pereira

Superior Court of Massachusetts, Norfolk

June 12, 2018

Robert W. PEREIRA, II, & another[1], Defendants

          June 13, 2018


          Peter B. Krupp, Justice of the Superior Court

         Wellesley Conservation Council, Inc. ("the Council") filed this action after defendants Robert W. Pereira, II and Cheri L. Pereira cut trees and constructed a sports court on their Wellesley property in violation of a long-standing conservation restriction. The Council seeks declaratory and injunctive relief, restoration of the property, its reasonable attorneys’ fees and costs, and monetary damages under G.L. c. 242, § 7 and G.L. c. 184, § 32. Defendants have largely capitulated. Defendants acknowledge their actions were wrong, agree they must restore the property and pay the Council’s reasonable attorneys’ fees and costs under G.L. c. 184, § 32, and agree to the Council’s requested declaratory and injunctive relief.

         Given defendants’ many concessions, there is only one issue before me on the parties’ cross-motions for summary judgment: whether the Council, as grantee of the conservation restriction on defendants’ property, may recover monetary damages from defendants because defendants cut trees on their property in violation of the conservation restriction. For the following reasons, I conclude the Council may not recover monetary damages.


         In 2013, Robert and Cheri Pereira purchased the home where they now live at 19 Pembroke Road in Wellesley. They formed 19 Pembroke Road Realty Trust ("the Trust") to hold their real estate interests in the property at 19 Pembroke Road. In this memorandum, I refer to the Trust, and Robert and Cheri Pereira, as trustees, together as "defendants."

         In 2015, defendants purchased 2.755 acres abutting 19 Pembroke Road. At the time of the purchase, the abutting parcel designated as 15R Pembroke Road ("15R") was burdened by a Massachusetts conservation restriction ("the 15R Restriction"), which was granted to the Council under G.L. c. 184, §§ 31-33, and recorded at the Norfolk County Registry of Deeds on or about December 26, 1975.[2] The 15R Restriction, which "run[s] with the property" and is "binding upon all future owners of an interest" in 15R, was "intended to retain the property in its natural, scenic and open condition." It generally precludes, among other things, construction, "removal or destruction of trees, shrubs or other vegetation," "removal of loam," and "other acts or uses detrimental to such retention of land and water areas predominantly in their natural condition." See also G.L. c. 184, § 31, first par. The 15R Restriction grants the Council a "perpetual right to enforce" it, and authorizes the Council and its agents to enter the property to inspect it and to enforce the 15R Restriction, without diminishing "any other remedies available to the [Council] for the enforcement of the foregoing restriction." (Emphasis added).

         Although they were aware of the 15R Restriction, defendants in or about 2016 violated the conservation restriction by clearing trees and vegetation from a portion of 15R, excavating and grading part of 15R, and installing a sports court and associated fencing and lighting on 15R. Defendants took these actions intentionally. The Council did not license, permit or authorize any such work.

         The Council filed this action in July 2017, asserting claims for breach of the conservation restriction (Count I), wrongful cutting of trees under G.L. c. 242, § 7 (Count II), unjust enrichment (Count III), declaratory relief (Count IV), and permanent injunction (Count V). It prays for the following relief: declarations that defendants violated the 15R Restriction in various ways (Prayer 1), a permanent injunction ordering immediate restoration of the disturbed property at 15R (Prayer 2) and barring further breaches of the 15R Restriction (Prayer 3), "[d]amages as permitted by law, including interest, as well as any multiple damages under law, including treble damages under G.L. c. 242, § 7" (Prayer 4), attorneys’ fees and costs, including under G.L. c. 184, § 32[3] (Prayer 5), and other relief the court deems appropriate.

         The parties have cross-moved for summary judgment. In moving for summary judgment, defendants agree to entry of summary judgment in the Council’s favor on Counts I, III, IV and V and for entry of judgment on Prayers 1, 2, 3 and 5. At issue is Count II for damages under G.L. c. 242, § 7, and so much of Count I as might support a theory that the Council may be entitled to recover monetary damages under Prayer 4.


         I. The Summary Judgment Standard

         Summary judgment is appropriate when "there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56(c). See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 712-716 (1991). Once the moving party establishes the absence of a triable issue, the opposing party must respond with specific facts establishing the existence of a genuine issue of material fact. Mass. R. Civ. P. 56(e). The nonmoving party may not merely rest on assertions of dispute, but must show the existence of actual disputes of fact. LaLonde v. Eissner, 405 Mass. 207, 209 (1989). The court must resolve doubts about the existence of a genuine issue of material fact against the moving party. Parent v. Stone & Webster Eng’g Corp., 408 Mass. 108, 112 (1990). Here, the parties agree that the issue before the Court is an issue of law. The parties’ statement of undisputed facts submitted under Superior Court Rule 9A(b)(5) contains virtually no facts that are disputed.

         II. Plaintiff’s ...

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