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COMMONWEALTH OF MASSACHUSETTS. ‘THE TRIAL COURT SUPERIOR COURT DEPARTMENT PLYMOUTH, ss. Civil Action No. 2183CV0331 HARLEY KAPLAN and SYBIL KAPLAN, Individually and as Trustees of the Sybil E. Kaplan Living Trust, Plaintiff v. NEW ENGLAND PARAGLIDING AND. HANG GLIDING CLUB,' et ali., Defendants MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTIO! The plaintiffs, Harley Kaplan and Sybil Kaplan, reside at 17 Whitney Lane in Plymouth. The residence is situated atop “Peaked Cliff,” overlooking Cape Cod Bay. They bring this action against members of the “ jew England Paragliding and Hang Gliding Club,” which is an unincorporated association? The Club operates a launch site for its members in the Sagamore Heights area of Bourne, near the Kaplans” residence. ‘The Kaplans allege that Club members fly over or onto their property and harass them, The Club members deny those accusations and assert that the Kaplans harass them and interfere with their lawful aerial recreation, ' The complaint identifies the defendant association as the “New England Paragliding and Hand Gliding Club." The defendants report thatthe correct name of their association is the “New England Paragliding and Hang Gliding Club.” ‘The court will adopt the defendants’ version of their club's name. 2 “{AJn unincorporated association cannot be & party to litigation.” Save the Bay, Ine. ». Department of Public Usilities, 366 Mass. 667, 675 (1975). However, “suit may be brought by or against the members ofthe association by representative individual members who will arly and adequately protect the interests ofthe association and its members.” Cheever v. Graves, 32 Mass. App. Ct. 601, 604-605 (1992). See Mass. R. Civ. P. 232. ‘The Kaplans have moved for a preliminary injunction pursuant to rule 65 of the Massachusetts Rules of Civil Procedure. They ask the court to restrain the defendants from paragliding or hang gliding within 150 feet of their lot and to order the Club to enforce its guidelines, including a “No-Fly Zone” over the Kaplans’ property. In addition to the veri ied complaint, the parties have submitted affidavits with photographs and other materials. The court also heard testimony from Matthew Foster, who is a member of the Club and the Director of the launch site near the Kaplans” property. FACTS Based on the exhibits and testimony presented, the court finds that some members of the Club have flown over the Kaplans’ property. While the affidavits and testimony of the various parties is in conflict, this conclusion is supported by photographs submitted by the Kaplans of numerous hang gliders and paragliders very near and over the Kaplans’ premises. The court infers that these hang gliders and paragliders are members of the Club given the proximity of the Club’s launch site to the Kaplans” property. ‘The court also finds that this activity by some Club members has persisted over the course of several years. ‘This conclusion is supported by minutes of a Club meeting on December 7, 2019. The Club’s launch site is in a conservation area managed by the town of Bourne. ‘The minutes document that the Bourne conservation agent complained to the Club about generally out-of-control activities of Club members: The [Bourne] Conservation Agent sent a person to video our activities and it was not good what was documented. Pilots were videoed yelling in the air, landing in trees and bushes, pilots grabbing other pilots as they flew through launch and gear, bikes and other bags laying in vegetation and trees. The Conservation Agent also has videos provided by the complaining neighbor of every dune and tree landing. Verified Complaint, Exhibit D (minutes of Club meeting). ‘The minutes go on to explain that officials from the Club met with the Bourne conservation commission and gave a presentation of “what [the Club] will do to reduce the incidents.” Jd. The minutes explain the Club’s plans: Changes in club behavior at Plymouth must include the following: No walking, launching on or from the dunes. Launch only from designated launch site and path up to launch site. No landing within 100 feet of people on the beach. No yelling from the air. No interfering, grabbing, or playing with pilots coming in for top landings. No flying over the neighbor to the left of launch house. Id. (emphasis supplied). Further, a print-out of information on the Club’s website shows that the Club took affirmative steps to stop members from flying over the Kaplans’ property. The Club designated the Kaplans’ lot as a “No-Fly Zone” and illustrated it with an aerial photograph. Under “Rules and Regulations” the Club directed its members as follows: RESPECT THE SENSITIVE LANDOWNER NO-FLY ZONE, Do not fly over the house directly left (North) of launch. If possible when flying to soar the North end, go out over the beach to pass that property. Ina Southerly cross-wind, tum early to avoid being blown over the house. See image on this page. Verified Complaint, Exhibit E (printout from Club website. Based on these materials, the court finds that some members of the Club — not all — have flown over the Kaplans’ premises. The Club has taken reasonable steps to control the problem, but some members have not abided by the Club's rules. The problem persists, ‘The court also finds that the situation has engendered hard feelings on both sides. Mr. Kaplan, frustrated by the situation, has resorted to self-help, such as flying kites to impede the hang gliders and paragliders. Some Club members have concluded that Mr. Kaplan has created a dangerous situation for them. The situation has deteriorated into name-calling and shouting. ANALYSIS ‘The test for determining whether a court should issue a preliminary injunction under Mass. R. Civ. P. 65 is well established. “The issuance of a preliminary injunction rests within the sound discretion of the judge afier a combined evaluation of the moving party’s likelihood of success on the merits, its claim of injury, and finally, a balancing of the competing harms to each party.” T'& D Video, Inc. v. City of Revere, 423 Mass. 577, 578 (1996) (citations omitted.) Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980). As part of this test, the moving party must demonstrate that, in the absence of an injunction, he will suffer irreparable harm, i.e. harm that “cannot be vindicated should it prevail after a full hearing on the merits.” Id. at 616. “What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of suecess on the merits. Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Id. at 617. ‘The burden of proving a likelihood of success is on the party seeking the injunction. Robinson v. Secretary of Administration, 12 Mass. App. Ct. 441, 451 (1981). Likelihood of Success. The Kaplans have demonstrated that they have a likelihood of suecess on their claim for trespass. “A trespasser has been defined as ‘a person who enters or remains upon land in possession of another without a privilege to do so, created by the possessor’s consent or otherwise."” Gage v. Wesifield, 26 Mass. App. Ct. 681, 694 n. 8 (1988), quoting Restatement (Second) of Torts § 329 (1965). Burnham v. Beverly Airways, 311 Mass. 628, 636 (1942) (flights over land and below navigable air space constitute trespass). F.W.T. v. FT. 93 Mass. App. Ct. 376, 380 n. 8 (2018) (flying drones over another's property is trespass). ‘The Kaplans likewise have a likelihood of success on their claim for nuisance. “A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on [its] property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another.” Taygeta Corp. v. Varian Assocs., 436 Mass. 217, 231 (2002), quoting Doe v. New Bedford Housing Authority, 417 Mass. 273, 288 (1994). The ‘maintenance of'a launch site for hang gliders and paragliders that fly over the plaintiffs’ property causing disturbances qualifies as a nuisance. ‘The fact that the Iaunch ite is apparently on public land does not matter since the Club controls the launch site. “In order to be liable in nuisance... it is not necessary for an individual to own the property on which the objectionable condition is maintained. Kurtigian v. Worcester, 348 Mass. 284, 285 (1965). Rather, ‘liability for damage ... turns upon whether a defendant [controls the property], either through ownership or otherwise.’ Ibid.” Belanger v, Commonwealth, 41 Mass. App. Ct. 668, 670 n. 3 (1996), overruled on other grounds, Morrissey v. New England Deaconess Association — Abundant Life Communities, Inc..458 Mass. 580 (2010), Although the Club has taken reasonable steps to abate the nuisanee, that action is not a defense since some of its members do not follow the rules. A defendant’s conduct may be found “unreasonable if the harm to a neighbor is substantial and ‘it would be practicable for the actor to avoid the harm in whole or part without undue hardship.”” Rattigan v, Wile,445 Mass. 850, 857 (2006), citing Restatement (Second) of Torts § 830 (1979). Irreparable Harm. ‘The Kaplans have also established that they will suffer irreparable harm in the absence of an injunction. As a general rule, the threatened loss of rights in real property is a sufficient basis for equitable relief. “It is well-settled law in thi ommonwealth that real property is unique and that money damages will often be inadequate to redress a deprivation of an interest in land.” Greenfield Country Estates Tenants Association, Inc. v. Deep, 423 Mass. 81, 88 (1996). Balance of the Harms, Finally, the balance of the potential harm to each side tips in favor of the Kaplans. If the court does not issue an injunction, they will be deprived of their enjoyment of their property. If the court grants an injunction, the Club and its members will stil be able to use their launch site and enjoy their flights. They will simply be required to stay away from the Kaplans” property. In light of the Kaplans’ likelihood of success on the merits, the ‘court should issue an injunetion, Scope of the Injunction. An injunction should, of course, be limited in scope. It should be broad enough to protect the plaintiffs’ rights but not so broad as to unduly burden the defendants’ right to engage in their recreational flights. ‘The Kaplans seek an order that would go further than prohibiting the defendants from flying over their property. They seek to prohibit the defendants from flying within 150 feet of the boundaries of the Kaplans’ lot. The Kaplans’ deck appears to be located at the edge of the cliff, which is apparently the eastem boundary of their property. Without a buffer zone, the defendants could fly within a few feet of the Kaplans and their guests. ‘Thus, a modest buffer zone appears reasonable. On the other hand, the beach that lies below the cliff does not appear to be more than one hundred feet wide, The defendants have a right to fly over the public beach. An injunetion that required them to fly out over Cape Cod Bay would appears unnecessary and could pose a danger to the defendants. Accordingly, the court will establish a “No-Fly Zone” extending thirty feet beyond the boundaries of the Kapians’ lot.? ® This zone isnot drawn with scientific precision. IF this distance proves unworkable, any ofthe parties may ask the ‘our to reconsider the distance, The goal isto set a reasonable distance tha protects all parties” rights 6 ‘The Kaplans also ask the court to order the Club to enforce its rules, including its “No- Fly Zone.” The court declines to do so for two reasons. First, the Club's “No-Fly Zone” contains no buffer zone, There should be no confusion among Club members that itis the court’s zone they must obey. Second, the court can enforce its own zone, if necessary, through the power of contempt. Both sides have rights in this case, The Kaplans have the right to enjoy their property in peace. The Club an members have the right to enjoy their aerial recreation over public property. The court's intent is to protect all parties’ rights through a reasonable accommodation. ‘The court expects that all parties will abide by the court’s Order and will treat one-another respectfully. ‘The court wishes to make clear that neither side should resort to self-help, such as flying kites in airspace used by the defendants or in any other manner, There is no need to resort to such tactics. If there are disputes between the parties, the parties should bring those disputes before the court for a reasonable — and peaceful ~ resolution. ORDER ‘The plaintiff's motion for a preliminary injunction is ALLOWED. The defendants are RESTRAINED AND ENJOINED from flying their paragliders and hang gliders in an area over the plaintiffs" property and extending thirty feet outside of boundaries of the plaintiffs” property, pending resolution of this civil action. June 4, 2021 Thomas F. MeGulre, Jr Justice of the Superior Court

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