Opinion
16-P-679
04-27-2017
Stephen G. SHEEHAN v. TOWN OF ROCKPORT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Stephen G. Sheehan, appeals from an order of a single justice of the Appeals Court, vacating a Superior Court order dated August 26, 2015, that granted the plaintiff "further preliminary injunctive relief" against the defendant, the town of Rockport (town). The plaintiff argues that the order should be reversed because the single justice abused his discretion. We affirm.
Background. The plaintiff leased a waterfront lot from the defendant in an area of the town known as Long Beach. The lease is seasonal and permits the plaintiff to use the land for eight months of the year.
In June of 2015, the plaintiff commenced an action against the defendant, claiming that § 2.6 of the parties' lease agreement constituted a breach of the covenant of quiet enjoyment, under G. L. c. 186, § 14. , Upon the plaintiff's request, a Superior Court judge ordered a preliminary injunction (first order), enjoining the defendant from (1) "any intrusion, encroachment, access, and/or use of the land leased by Defendant to the Plaintiff and other owners of [the Long Beach] dwelling units located on 154 lots owned by the Defendant" and (2) "any breach of the covenant of quiet enjoyment owed by the Defendant to each of said owners-lessees."
The relevant provision of the lease states:
"Tenant further acknowledges that abutters, other residents of Long Beach and/or members of the public may use portions of the [leased] Land for pedestrian access to their respective lots and/or to other parts of Long Beach, and agrees not to disturb, hinder, or otherwise interfere with such access rights. By signing this Lease, Tenant acknowledges and agrees that such encroachment, access and/or use by others shall not constitute a breach of the covenant of quiet enjoyment or the Town's other obligations under this Lease." (Emphasis supplied.)
The complaint also sought certification of a class action on behalf of all Long Beach lessees. That certification was denied on August 19, 2016, after the single justice's order issued.
In August of 2015, the plaintiff filed a complaint for contempt, alleging that the defendant "failed to prevent members of the public from intruding upon, encroaching upon, accessing, or using the [leased] land [in Long Beach]." The plaintiff's complaint for contempt also sought an order requiring the defendant to take certain proactive measures to stop members of the public from conducting such entries.
The plaintiff argues on appeal that his complaint for contempt was supported by evidence that after the first order, the town "had continued to allow scores of strangers to traipse across the leased lots." However, the complaint for contempt was the defendant's first notice that "over one hundred" "beachgoers" crossed the plaintiff's leased land after the first order issued, as evidenced by the affidavit of the town's chief of police, which stated that the plaintiff had not reported such crossings to the town's police.
At a hearing on the plaintiff's complaint for contempt, the judge stated that he was not finding the defendant in violation of the first order "at this time." However, on August 26, 2015, the judge issued an order (second order) requiring the defendant to take specific enforcement actions, including providing a police detail at Long Beach every weekend day from Memorial Day through Labor Day in order to prevent members of the public from entering the leased land and if the defendant cannot secure such detail, then to permit the plaintiff to engage a private security agency to fill the detail; paying one-half of the cost of the detail; publishing an advertisement notice in the newspaper at the start of every summer to notify the public of the first order; and posting and maintaining signage of the first order at each entrance of Long Beach.
The defendant then filed a petition to the single justice of this court, pursuant to G. L. c. 231, § 118, first par., in an effort to vacate the second order. The petition was stayed pending a trial on the plaintiff's complaint for contempt, which was held in January and February of 2016, before a second judge. On February 26, 2016, the second judge found that the first order "includes no language which directs or obligates the [defendant] to monitor or direct members of the public whose entry of Leased Land is imminent or occurring." He further found that the defendant was not "in contempt of the [first] [o]rder" and not in "disobedience of a clear and unequivocal command [of the first order]."
The stay was vacated on the defendant's petition to the single justice, and the single justice vacated the second order. This appeal followed.
Discussion. We affirm based on the reasons discussed in the single justice's order. While the defendant, as a landlord, may be liable, pursuant to G. L. c. 186, § 14, for any action or inaction it may take that substantially interferes with a tenant's right to quiet enjoyment, the statute does not require the defendant to take any specific measures to fulfill that obligation. See Doe v. New Bedford Hous. Authy., 417 Mass. 273, 286 (1994) ("There is no authority, however, for the proposition that the defendant[, a public housing authority,] must provide around the clock security or other police services [to fulfill the covenant of quiet enjoyment]"). See also Charrier v. Charrier, 416 Mass. 105, 110 (1993) ("Nothing in G. L. c. 119, ... relied on by the judge, requires DSS to provide household or other property items or medical, therapeutic, psychiatric, dental or pharmaceutical services to a natural parent of children in its custody"). Instead, the means by which the defendant satisfies its obligation is within its discretion. See Doe, supra ("In fact, the decision as to the proper means to ensure security is a discretionary decision left to the housing authority.... Accordingly, we cannot say that the [public housing authority] breached the covenant of quiet enjoyment by failing to provide particular security measures"). See also Matter of McKnight, 406 Mass. 787, 792 (1990) ("Where the means of fulfilling that obligation is within the discretion of a public agency, the courts normally have no right to tell that agency how to fulfil its obligation"); Barnett v. Lynn, 433 Mass. 662, 664 (2001) ("The city has discretion in deciding how best to expend its resources in order to provide safe and secure conditions").
Here, the first "judge d[id] not have the authority to order [the defendant] to do anything that [the defendant] is not required to do as a matter of law." Charrier, supra at 112. Indeed, "to do [so] would violate the principle of separation of the powers of government by usurping an executive function." Id. at 110.
Moreover, this case is distinct from the cases on which the plaintiff relies, where courts have permissibly ordered public agencies to take certain specified actions when the public agencies have either clearly violated their statutory duty or shown an indifference to orders mandating fulfilment of that duty. See Blaney v. Commissioner of Correction, 374 Mass. 337, 342-343 (1978) ; Perez v. Boston Hous. Authy., 379 Mass. 703, 733 (1980). Such circumstances are not present here.
Indeed, the second judge found that the defendant was neither in contempt of the first order nor in disobedience of a clear and unequivocal command of the first order.
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Therefore, we agree with the single justice that the first judge did not have the authority to order the defendant, a municipal town, to take specific actions to fulfill its obligation to the plaintiff since the manner of fulfilling such obligation was within the discretion of the defendant as a public agency.
Order of single justice affirmed.