A Fiery Court Battle over Deed Restrictions Ends in Town’s Favor

September 18, 2015


by Lynne Ober

The trial and lengthy dispute has gone to court, and a judgment has been reached.

Longtime Pelham resident J. Albert Lynch, a retired Salem District Court judge, sued the Town of Pelham because he believed that the new fire station/town office building (“fire station complex”) violated the restrictive covenants governing the property.  In addition, Lynch claimed violation of other covenants regarding the planting of a tree buffer and the reconstruction and maintenance of a stone wall.

However, Hillsborough County Superior Court found that the town did not violate the deed covenant that the fire station design be “colonial” in nature, but the town will have to reconstruct a piece of the stone wall.  Overall the judgment was very favorable to the town.

Back in June 2012, Lynch filed his complaint against the town.  Since then, the town has expended approximately $90,000 in defense of the lawsuit, according to Town Administrator Brian McCarthy.  Lynch has 30 days to file an appeal.

Believing the town had violated covenants, Lynch had wanted the roof on the fire station replaced with a gable roof to make it consistent with the colonial feel.  The town said this would cost $1 million.  He also wanted mature trees planted as a buffer between the complex and houses on Saw Mill Road and a portion of a stone wall rebuilt.  Finally, Lynch had asked for attorney fees as well.

On Feb. 1, 1985, J. Albert Lynch and Louis Fineman formed the FIN-LYN Trust to purchase a 24-acre farm on Marsh Road in Pelham, for the purpose of transferring most of the land to the municipality for use as a town center with both open space and municipal buildings.  The trust subdivided six lots for residential development and, on May 31, 1985, deeded the remaining 18 acres to the town, under restrictive covenants regarding the land’s use and improvements.  The restrictive covenants included, among other things, the following:

“All buildings to be constructed on the land hereby conveyed shall be of Colonial architecture and shall be architecturally consistent with each other.  No building shall have a flat or single pitch roof and no building shall exceed two stories in height, excluding the basement.”

“Within two years of the date of this deed and prior to the construction of any building or parking lot on the southern one third of the land hereby conveyed, the Town of Pelham shall plant a dense row, at least thirty (30) feet deep, of white pine, scotch pine, fir, spruce or willow trees along the southern property line of the land hereby conveyed.”

“The Town of Pelham agrees to reconstruct and maintain the stone wall along Marsh Road and said wall may be breached only for ingress and egress.”

Over the years the library and town hall complex had been built.  In 2004, the town began the process of trying to build a new fire station, but construction on that was not complete until 2013.

The design of the completed fire station began to be displayed in Pelham Town Hall in 2010.  Former Town Administrator Tom Gaydos testified for the town at the trial and said that the drawing of the proposed structure was the first thing anyone saw when entering town hall.

William Hayes testified for the trust and said he had concerns from the beginning about the design of the fire station.  During the trial Hayes cited the library as a structure that complied with the trust requirements.

During the trial, the town showed documents showing what was called “dogged opposition” to the new library, but said there was almost no opposition to the new fire station as it related to the deed.  Hayes did testify that he didn’t ask about the stone wall or the buffer of trees when the library was built.

Lynch testified that the fire station construction and appearance was not in keeping with either the trust or the other buildings built on the complex and equated the fire station to a Jiffy Lube building.

Lynch also testified that he had been in and out of town hall during the time the fire station sketch was posted, but didn’t recall seeing it.  Lynch also testified that he never attended any of the public hearings on the project because “he didn’t want to be the skunk at the party.”  Nor did he write any letters of objection.

During the trial Selectman Bill McDevitt testified that the restrictive covenants were discussed throughout the project.  Berard Martel assured the town that the design was “colonial” and that the pitch of the apparatus bay roof had enough slope to be considered not “flat.”  McDevitt testified that two weeks after the voters approved the fire station, selectmen received a letter expressing concerns, and he forwarded that letter to town counsel for review.

Town counsel did respond that the roof did meet the standards and that the “architectural details of the building are consistent with Colonial architecture.”  This information was provided during the trial as well.

The plaintiff requested that a new roof be built that would make the fire station look more like the library.  Unfortunately there was a great deal of additional weight from such a roof and, as a result, it wasn’t as simple as just adding a faux roof.  Meridian Construction estimated the cost to design and construct a second roof over the existing roof to be $1.1 million to $1.3 million, which included adding the infrastructure needed to support the new roof.

The other issue was the barrier of trees, and testimony about that was interesting.  According to the court records, “Mr. Hayes testified that years ago the Boy Scouts and other volunteers planted 300 trees.  He was not able to recall, however, the exact year this occurred or the species that were planted.  Many of the trees were plowed up when the town leased the land to a pumpkin grower, while others died.  Only one tree remains from the initial planting.”  McDevitt also testified that over the years other trees have grown up to replace those that had been plowed under.  As a result, the town felt that the required tree barrier was actually there.

The third issue was the stone wall.  McDevitt acknowledged that the segment “towards the woods” in the direction of Sawmill Road is in need of repair, but the rest of the wall is in “very good shape.”  He also said the town was more than willing to work on the last remaining section that had not yet been addressed.

Lynch and Hayes also took issue with the change from a free-standing stone wall to a retaining wall in the center section where an electronic town sign is located, but stopped short of asking that this be rebuilt in original form.

In the written judgment, the court wrote, “the Court made clear in its Order that the plaintiff had the obligation to identify, prior to trial, the remedies it proposed if one or more of the restrictive covenants were found to be violated.  This matter has been pending since 2012 and the parties deserve a decision.  For these reasons, the plaintiffs motion to amend is DENIED.  (sic)”  The Court addressed the issue of colonial as used in the deed and found, “Restrictive covenant #6 requires all buildings placed on the property, now known as the Town center or village green, to be of “Colonial architecture and shall be architecturally consistent with each other.”  “Colonial” is not defined.  This is an aesthetic covenant and although the term is not legally ambiguous, there are no doubt subjective differences in what people find most important in considering what qualifies as “Colonial” architecture.”

Further, the judgment read, “The fire station complex includes numerous design elements that are colonial in character, such as clapboard siding, extensive use of trim, windows, corner returns, use of vertical lines between the bays to mimic columns, and use of trim to create shadowing and depth on the facade.  Further, three of the roofs are steeply pitched, at the southern end of the building, in the section that connects the fire apparatus bay to the office portion, and over the offices portion of the building itself.”

The court also found that the tree barrier was sufficient, but that the town did need to maintain the stone wall.  The town does not have to tear down the retaining wall.  Finally, the court found that each party would pay its own legal fees.

The Pelham Board of Selectmen issued a press release that said, “The Selectmen are very pleased that this unfortunate, contentious, and expensive matter has been put to rest.”