The opinion
STATE OF MAINE SUPERlOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. RE-07-139
1j .\, .
EDGAR E. PETERS and
SHERYL A. PETERS,
Plaintiffs
v. ORDER AND DECISION
(Title to Real Estate is Involved)
RICHARD D. O'LEARY, Individually
and as Trustee,
Defendant
and
TOWN OF OGUNQUIT,
Party-In-Interest
THE PARTIES - The plaintiffs Edgar Peters and Sheryl Peters are residents of
Pasadena, California, and were represented by attorney James B. Bartlett of York,
Maine.
The defendant Richard O'Leary is a resident of Norfolk, Virginia and was
represented by attorney Thomas Danylik of Biddeford, Maine.
The Town of Ogunquit is a party-in-interest and was represented by attorney
Gordon Ayer, of Kennebunk, Maine.
THE PROPERTIES - The plaintiffs acquired property located at 47 Ontio Way
which abuts the O'Leary property by deed dated August 2, 2002 and recorded in the
York County Registry of Deeds in Book 11848, Page 20 (See Plaintiffs' Exhibit 1). The
deed to the Peters' property contains an incomplete reference to a restrictive covenant
that prohibits structures or fences of anything to be erected by the Grantee or his heirs
or assigns. The complete language regarding this restriction is contained in the deed to
the 10 foot strip of land itself conveyed to one of Peters' predecessors in title, Robert H.
Bodholdt, by the O'Learys' predecessor in title, Anthony Tucceri by deed dated April 5,
1971 wherein it is recited "as part of the consideration for these premises is the
restriction that no structures or fences of anything can be erected by the grantee, his
heirs or assigns" (See Defendants' Exhibit 5). The Wall Location Plan for the plaintiffs
prepared by Roaring Brook Consultants dated September I, 2009 was admitted by
stipulation (See Defendants' Exhibit 3) and depicts the lO-foot strip of land, its location
and the location of a portion of Peters' retaining wall within it.
Defendant Richard D. O'Leary acquired property located at 51 Ontio Way (also
described as 49 Ontio Way), Ogunquit, Maine from Anthony Tucceri by deed dated
September 30, 1988, which deed is recorded in the York County Registry of Deeds in
Book 4858, Page 285 (See Defendants' Exhibit 1). The property which borders on
Marginal Way is comprised of two lots and a portion of a third referenced on an old
recorded plan, entitled Plan Number 1 of Josiah Chase's Israel Head Property,
Ogunquit dated July 27, 1892 (See Defendants' Exhibits 1 and 3). Mr. O'Leary later
conveyed this property to a Trust of which he is trustee by deed dated February 24,
2004, which deed is recorded in the York County Registry of Deeds in Book 14011, Page
9 (See Defendants' Exhibit 2).
Defendant's property directly abuts the plaintiffs' property and lies between
plaintiffs' property and the ocean.
NOTICE - All parties have received notice of the proceedings in accordance with
the applicable provisions of the Maine Rules of Civil Procedure.
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THE PLEADINGS - The plaintiffs have filed a four count first amended
complaint which contains counts for statutory private nuisance: spite fence, common
law private nuisance: spite fence, injunctive relief and a request for declaratory
judgment. The defendant's first amended counterclaim has a claim for trespass
damages and a separate claim in Count II seeking the removal of a structure within a
portion of the 10' strip on the plaintiffs' side of their common boundary.
THE DISPUTE - A multi-day hearing has been held, I have viewed the
properties with counsel and have carefully reviewed the written post-hearing
submissions.
An earlier house on the plaintiffs' property was built around 1971 and a "Deck
House" was located on their property at the time they purchased it in 2002. That house
consisted of a basement level and a main floor with a deck around a portion of the
house from which part of the O'Leary back yard could be seen.
The plaintiffs decided to tear down the house and replace it with a new structure
which would add an additional one-half floor. This increase in height would both
improve their views and reduce the defendant's privacy. The plaintiffs offered to show
their plans to the defendant's wife. She declined stating that she had no right to
influence the construction of a home on another person's property. The defendant did
not explicitly oppose the plans nor object to the granting of the necessary municipal
building permi ts.
At the time of the plaintiffs' purchase of their property the area along the
common boundary was heavily vegetated with arbor vitae at the head of the driveway
and native honeysuckle and bittersweet toward the shore. That dense vegetation
provided privacy for the defendant and ranged in height from 8 to 14 feet.
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While the plaintiffs do not have a view easement in their deed and while there
was no restriction effecting their views contained in the defendant's deed, the plaintiffs
had unobstructed views of the ocean from their property to the north, to the northeast
and to the southeast.
The demolition of the existing deckhouse and the construction of the new
structure began in late September of 2005. The Peters retained the services of Cape
Neddick Builders to both undertake the demolition work and new home construction.
Jerry Rose the owner of Cape Neddick Builders testified as to the challenge that the lot
proposed, given its narrow width and dramatic elevation changes, with respect to
construction, storage of materials, and movement of equipment. The excavation began
and included the removal of all of the vegetation and growth that had spread on to the
Peters' property. The plaintiffs' plans called for both the construction of a retaining
wall within a portion of the 10' strip and a plan for extensive replantings of native
species of a modest height generally consistent with the prior vegetation. As the
construction progressed it became clear that the defendant, a now 78 year old former
naval officer, former commandant of the United States Merchant Marine Academy and
successful entrepreneur, was quite unhappy with the plaintiffs' new home.
In October of 2005 a work person hired by the plaintiffs trespassed on
defendant's land and removed one bush of minimal value. The contractor also parked a
piece of heavy equipment overnight on defendant's property causing no lasting
damage. Neither the defendant nor anyone acting for him authorized the removal of
the bush. No suits were brought and the police were not called.
Following the removal of the vegetative barrier, the character of the landscape
between the two properties was changed. Mr. O'Leary quickly decided to have the
remaining vegetation of honeysuckle and bittersweet on the northwest corner of his
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property removed while the heavy equipment was there and available. It was
removed.
During the course of the initial layout and construction of the retaining wall
associated with the Peters' new home, Mr. O'Leary, as confirmed by the testimony of
Mr. Rose, brought to Mr. Rose's attention an issue involving a 10 foot "easement" (as
Mr. O'Leary described it) and its application with respect to the position of a portion of
the retaining wall to be constructed. Both Mr. Peters and Mr. Rose testified that they
were aware of the restriction relative to the ten-foot (10') strip but concluded that the
construction did not violate the restriction. Until the Peters sued the O'Learys in this
case, Mr. O'Leary took no action to seek removal of that portion of the Peters' retaining
wall encroaching within the 10 foot restricted strip. Neither did Mr. or Mrs. O'Leary, or
any representative on their behalf, appear or participate in a proceeding before the
Town of Ogunquit Zoning Board of Appeals wherein the Town of Ogunquit, through
its Code Enforcement Officer, sought removal of the wall to bring it within compliance
with side yard setback requirements (See Plaintiffs' Exhibit 46).
In February of 2006, having obtained a detailed landscaping plan from Jackie
Nooney (Exhibit 50), Plaintiff Edgar Peters contacted Defendant in a telephone
conversation and proposed that Defendant review his landscaping plan. During this
telephone conversation, Plaintiff emphasized to Defendant the importance of
preserving his views to the Atlantic Ocean.
In April of 2006, Plaintiffs' landscaping contractor, John Patten, reviewed
Plaintiffs' landscaping plan with Defendant. Sometime during the spring of 2006,
Defendant learned he had violated the Town of Ogunquit's Shoreland Overlay and
Resource Protection District regulations with the removal of the vegetation on his side
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of the property line. At that point, Defendant denied that he ever asked the workmen
to do this and accused Plaintiffs of damaging his property during their construction.
On May 3, 206, the Town of Ogunquit Code Enforcement Officer, Paul Lempicki,
("CEO") convened a meeting at Defendant's residence to review the violations. Present
at this meeting were plaintiffs, defendant, John Patten, and Jerry Rose. During this
meeting, Defendant presented a poster board of pictures claiming that Plaintiffs had
harmed and devalued his property by causing the removal of vegetation. Defendant
made a statement to Plaintiffs to the effect that "they will pay for this." Also during this
meeting, the CEO ordered that the vegetation that had been removed by Defendant
from his property be replaced. Ultimately Plaintiffs and Defendant each paid for 50% of
the cost of restoration of that vegetation. The meeting was generally professional but
sometimes tense and uncomfortable. In written communications between the parties
dated May 5, 8, 12 and 14, 2006 (Plaintiffs' exhibits IS, 16, 17, and 18), the parties
exchanged information and claims about the circumstances of the status of the
landscaping. Plaintiffs, at the same time, proposed to Defendant they would pay for the
creation of a privacy screen with landscaping to ensure privacy for both parties and to
preserve Plaintiffs' views of the Atlantic Ocean and the Marginal Way. In the written
communications between the parties and orally, Plaintiffs emphasized to Defendant the
importance of preserving their views no matter what type of landscaping was done by
either party, while recognizing the mutual importance of privacy.
Following the exchange of these letters, there was yet another admitted trespass
on the O'Leary property by Peters' agent. This involved some boulders to be used for
Peters' landscaping / retention wall being placed on the O'Leary property and allowed
to remain in place, due to weather conditions, for approximately one week (Defendants'
Exhibit 13). This trespass caused Mr. O'Leary to write and complain to Mr. Peters,
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although again there was no threat to take any legal action or to involve the authorities.
The complaint resulted in a written apology.
During early spring of 2006, Mr. O'Leary began to consult with Ted Carter of
Carter Design & Group regarding a plan to increase their privacy using plantings. Mr.
Carter had previously provided landscaping design and installation services for the
O'Learys at the Ontio Way property.
While Mr. O'Leary testified he advised Mr. Carter of his desire to restore the
privacy he had previously enjoyed, he did not provide Mr. Carter with any
specifications as to the plant material, nor were there any discussions involving using
any vegetation or trees that would have the effect of impeding the ocean views or any
views from the Peters' property. This was confirmed by Mr. Carter in his testimony
and by Mr. O'Leary in his. Communications between Mr. O'Leary and Mr. Carter were
via telephone and fax as the O'Learys were then in residence in Virginia.
Ultimately, Mr. Carter suggested using a combination of Cleveland pear trees
and arborvitae. Mr. O'Leary testified that he had no knowledge of what these pear
trees looked like or what their height or width would be at maturity. His sole
introduction with respect to the trees and how they would be planted and what their
appearance would be was via a computer generated overlay photo provided by Mr.
Carter to him (See Defendant's Exhibit 11). According to Mr. O'Leary's testimony, it
was based upon the appearance shown in the image produced by Mr. Carter that Mr.
O'Leary authorized Mr. Carter to proceed. Mr. O'Leary also testified, which testimony
was confirmed by Mr. Lempicki, that Mr. Lempicki was consulted prior to any work
being performed and that permission was given to proceed with the planting. Mr.
Lempicki was concerned only with municipal ordinances and was not authorized to
determine whether the plantings would constitute a spite fence.
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The Cleveland pear trees when planted were about 16 feet in height, according to
Mr. Carter. They can, at maturity, reach a height of 25-30 feet or perhaps higher.
Defendant told Plaintiffs he intended to plant a few pear trees but that the trees would
be between the houses and would not interfere with Plaintiffs' views of the Atlantic
Ocean and the Marginal Way, though they would be "tall." Defendant also stated that
they would "enhance" Plaintiffs' property. Plaintiffs believed this was going to be a
few decorative trees rather than a hedge or wall of vegetation. Plaintiffs specifically
told Defendant that they would be concerned about anything planted below his old
grill, which is about halfway down the property line, because that would interfere with
Plaintiffs' views, particularly from the downstairs bedrooms but also from Plaintiffs'
deck.
Defendant was aware that Ted Carter had planted a row of pear trees and arbor
vitae on the boundary of the Levy property several years before. The Levy property is
located a short distance up the hill from Defendant's property. Defendant was familiar
with the plantings on the Levy property as he had visited or walked by the Levy
property on a number of occasions. Ted Carter developed a plan to install, along the
boundary line between Plaintiffs' and Defendant's properties, a hedge of arbor vitae
that would grow to as high as 16 feet and a hedge of pear trees.
In June of 2006, without any notice to Plaintiffs, Defendant did plant an extensive
unduly closely spaced row of pear trees and arbor vitae along the boundary line
between the parties' properties in a manner intended to obstruct Plaintiffs' views of the
Atlantic Ocean and the Marginal Way. Ultimately, he planted 16 pear trees and over 60
arbor vitae plants in this location. By the time Defendant planted these trees and arbor
vitae, because of the fact his property is in the Shoreland Overlay District of the Town
of Ogunquit, he knew the Town of Ogunquit would object to their removal based on
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statements made to him by the CEO. The pear trees are now approximately 20' to 25'
high and can theoretically grow 35' to 40' high. These trees are planted approximately
6' to 9' apart. Defendant planted the last set of pear trees in July 2007.
All was not however hostile between the parties.
At the outset of the demolition of the plaintiffs' home Mr. O'Leary also had a
large willow removed at the suggestion of Mr. Rose who asserted it was a threat to
damage the Peters' new residence. This was accomplished at Mr. O'Leary's expense.
While Mr. Carter was planting the trees in question in June of 2006, Mr. O'Leary
and Mr. Peters had conversations regarding the row of arborvitae Mr. O'Leary wanted
to plant along the westerly side of his driveway which is located on Peters' property
(for which there is an expressed easement). That conversation resulted in an agreement
with respect to these arborvitae which was reduced to writing by Mr. Peters' attorney
(See Plaintiffs' Exhibit 41). The conversations also resulted in the parties' agreement to
share equally the costs associated with the remediation relative to the vegetation
removal on the O'Leary property. Each party paid Mr. Patten, who did the remediation
work, about $1,500.00.
At this time, Mr. Peters also requested that Mr. O'Leary not install one pear tree
near the Ontio Way end of the properties, believing that it would interfere with a
southeast view from a room located in the southeast corner of the main floor of the
Peters' new home. After investigating Mr. Peters' claim by entering the home and the
room in question with the permission of the contractor, Mr. O'Leary instructed Mr.
Carter's crew not to complete the installation of the tree "for which a hole was already
dug and the tree already in place" as an accommodation to the Peters.
The installation of the Carter plan with some additional plantings of arborvitae
was completed on or about June 13, 2006. Mr. O'Leary paid Carter Design Group in
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excess of $45,000.00 for the trees, ground preparation and installation (See Defendants'
Exhibits 27,28,29 and 30).
Some time in July of 2006 after the plantings were complete and after a cordial
exchange between Mrs. Peters and Mrs. O'Leary regarding a wedding planned to take
place at the Peters' property on the ensuing weekend, Mrs. O'Leary offered the use of
the O'Leary property for parking and pictures. At the same time, Mr. and Mrs. Peters
complained to Mr. O'Leary about two new trees about to be planted in replacement of
two dying trees in the middle of the O'Leary property, claiming that, once planted they
would block their view of the Marginal Way. No such claims were made relative to the
pear trees. A demand was made by Mr. and Mrs. Peters that these trees not be planted.
No similar demand was made regarding the existing pear trees and arborvitae.
By deed dated AprilS, 1971, Defendant's predecessor in title, Anthony Tucceri et
a1. conveyed a 10 foot strip of land from what was formerly part of Defendant's lot, to
Plaintiffs' predecessor in title, Richard H. Bodholdt. At the same time, Tucceri retained
an easement for his driveway across the southeasterly corner of Plaintiffs' lot and
inserted a restriction for that 10' strip against the erection of any fences or structures.
Sometime shortly after 1971, Plaintiffs' predecessor in title constructed a home on
Plaintiffs' lot. The deck attached to that home on the easterly side of Plaintiffs' lot was
built within the 10' strip and was arguably in violation of the foregoing restriction.
Further, at about the same time, Plaintiffs' predecessor in title built a wooden retaining
wall also within the 10 foot strip and also arguably in violation of the foregoing
restriction.
At no time did Defendant's predecessor in title object to the violations of the 10
foot restriction by the deck and retaining wall nor did Defendant ever object to the
violations of the 10 foot restriction by the deck and retaining wall, neither during the
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time of ownership by Plaintiffs' predecessor in title nor during Plaintiffs' ownership
prior to the demolition of the prior house and retaining wall.
During the construction of the new retaining wall on Plaintiffs' property the
Town of Ogunquit objected on the grounds the wall was a structure and was built
within the Town's setback requirement. Plaintiffs appealed this ruling to the Ogunquit
Zoning Board of Appeals and obtained a decision that, under the Ogunquit Land Use
Code, a retaining wall is not considered a structure. Defendant received due notice of
Plaintiffs' appeal and did not participate in any way in the appeal process.
The evidence reflected no further interaction between the parties until the
present Complaint was filed in November of 2008 save for a request by the Peters that
they be permitted to plant lilacs on the O'Leary property in conjunction with their
landscaping scheme and to shield from their view the arborvitae planted on the
O'Leary property. Mr. O'Leary gave the Peters the consent to plant the lilacs as
requested.
THE CLAIMS
SPITE FENCE - STATUTORY CLAIM - COUNT I
Pursuant to 17 M.R.S.A. §2801, "Any fence or other structure in the nature of a
fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the
purpose of annoying the owners or occupants of adjoining property, shall be deemed a
private nuisance."
Black's Law Dictionary defines "fence" as "a hedge (emphasis added), structure,
or partition, erected for the purpose of inclosing a piece of land, or to divide a piece of
land into distinct portions, or to separate two contiguous estates." Webster's Ninth
New Collegiate Dictionary (1985) defines a "fence" broadly as "a barrier intended to
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prevent escape or intrusion or to mark a boundary;" and further defines a "hedge" as "a
fence (emphasis added) or boundary formed by a dense row or shrubs or low trees."
Maine statutes have defined the term "fence" in broad terms. Under 30-A
M.R.S.A. Section 2951, the term "legal fences" is defined as "All fences 4 feet high and
in good repair, consisting of rails, timber, stone walls, iron or wire and brooks, rivers,
ponds, creeks, ditches, and hedges or other things which in the judgment of the fence
viewers having jurisdiction thereof are equivalent thereto ...." (Emphasis added). The
structures consisting of two hedges of arbor vitae and pear trees fall well within these
definitions of a "fence."
I find by a preponderance of the evidence that the defendant's decision to plant
an extensive number of closely spaced tall pear trees and arbor vitae created two dense
hedges limiting the plaintiffs' views of the oceans and likely to limit those views further
as the trees continue to grow. A tall two-tiered wall has been created. While this wall
of dense vegetation certainly increases the 9-efendant's privacy, I conclude, based on
comments made by the defendant, actions taken by the defendant and the extent of and
types of plantings that the dominant reason for such a massive series of plantings, that
Ted Carter refers to as "installations", was to punish the plaintiffs by significantly
reducing their prized view of the Atlantic.
COMMON LAW - SPITE FENCE - COUNT 2
The evidence in this case also tracks the Restatement (Second) of Torts
Concerning Private Nuisance Actions. The facts support Plaintiffs' claim for common
law nuisance as stated in the "Nuisance" sections of the Restatement (Second) of Torts
which the Law Court has cited as being consistent with Maine law. See e.g. Iacques v.
Pioneer Plastics, Inc. 676 A.2d 504 (Me. 1996), Ierryco v. Union Station Plaza Associates,
625 A.2d 907, 8 (Me. 1993). See Sections 822, 826, 829(b) and 830.
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Counts III and IV will be discussed later in the sections dealing with relief.
COUNTERCLAIMS
The plaintiffs did, through their agents, trespass on defendant's land by cutting a
bush, parking equipment and placing boulders on defendant's land. Damages of $1.00
on Count I will be awarded.
The second counterclaim involves the placement of a portion of a retaining wall
and related structure within the 10 foot no build strip. This land is owned by the
plaintiffs and is on their side of the spite fence of trees and bushes. While the retaining
wall is not a structure for purposes of the Ogunquit ordinances it is a "structure" within
the more common meaning used in the deed restriction which prohibits "structures or
fences of anything" from being erected in the strip.
However, while the retaining wall should not have been built within 10 feet of
the property line, I will not order its removal. The wall causes no harm to the
defendant, was not objected to earlier, and its removal would be costly and complicated
for the plaintiffs. The wall serves a useful environmental purpose as part of an
elaborate drainage system and will remain.
REMEDIES
The plaintiffs have requested either an award of damages or an order requiring
the removal of or trimming of trees as a remedy under Counts I and II governing spite
fences.
They submitted the testimony of an appraiser supporting the claim that the spite
fence, having reduced their views, reduced the property value by $150,000. The
appraiser was given a difficult task and made a valiant effort but I found his
presentation confusing and unpersuasive. While I am fully convinced that the spite
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fence, if it remained, would reduce the value of the property I am not convinced that
the reduction in value has been adequately quantified.
The spite fence of trees and bushes needs to be removed. The defendant cannot
plant far more trees than had existed harming his neighbors in the process and then
claim that he cannot be required to remove any of the trees because they are in the
Shoreland Overlay District. The remedy ordered will not cause any environmental
damage. If the defendant is subject to a fine from the Town that will be unfortunate but
the defendant, having built a spite fence, cannot be allowed to maintain it.
Lastly, as a matter of discretion, I am awarding no punitive damages. While I
find by clear and convincing evidence that the plantings were done with malice I find
that many of the defendant's actions were gracious. He was most civil while in court
and I see no need to impose additional damages to deter him or others.
I have deliberately chosen an 8-foot rather than a 6-foot height limitation to
preserve privacy, reduce the stress on the bushes and more closely approximate pre
existing conditions. The extra 2 feet should not significantly affect the plaintiffs' views.
The entries are:
Judgment for the plaintiffs on Counts I, II, III and IV of the first amended
complaint with costs.
Judgment for the defendant in the amount of $1.00 on Count I of the first
amended counterclaim.
Judgment for the plaintiffs on Count II of the first amended counterclaim.
The defendant shall within 60 days remove the first three pear trees along
the boundary line between Plaintiffs' and Defendant's properties running
from Ontio Way in a northerly direction, plus the last 6 trees at the end of
this row of pear trees and trim all of the arbor vitae planted along the
boundary between Plaintiffs' and Defendant's properties and running
along the northerly boundary of Defendant's property to a height no
greater than 8 feet. The defendant, his successors, heirs, and assigns or
agents are permanently enjoined from installing or maintaining any
similar structure or planting exceeding 8 feet in height in the same
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locations as the locations of the removed trees or trimmed arbor vitae or in
any other location on Defendant's property that would impair Plaintiffs'
views of the Atlantic Ocean.
The plaintiffs shall be responsible for recording an attested copy of the
judgment and for paying the appropriate recording fees.
Dated: August 3( , 2010 !~~J~/~~
Paul A. Fritzsche
Justice, Superior Court
The appeal period has expired without action or final judgment has been entered
after remand following appeal.
Dated: _
Clerk
ATTORNEY FOR PLAINTIFF:
JAMES B. BARTLETT, ESQ.
JAMES B BARTLETT PA
PO BOX 836
YORK ME 03909
ATTORNEY FOR DEFENDANT:
THOMAS DANYLIK, ESQ.
WOODMAN EDMANDS DANYLIK & AUSTIN
PO BOX 468
BIDDEFORD ME 04005
ATTORNEY FOR PARTY-IN-INTEREST:
GORDON C. AYER, ESQ.
WATERMARK LAW
PO BOX 367
KENNEBUNK ME 04043
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