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3.4
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1677-CV-01587
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN
WINGAERSHEEK REALTY TRUST,
Plaintiff
Vv,
JOHN F. O'BRIEN, and
BONITA J. O’BRIEN,
—_____Defendants___——_)
AFFIDAVIT OF PHILIP J. MAZZOLA
I, Philip J. Mazzola, do hereby depose and state the following facts based on my personal
knowledge known to be true by me, and as to those stated on information and belief, I believe them
to be true:
1. I am the Trustee of the Seventeen Wingaersheek Realty Trust and the Plaintiff in the
above-captioned action.
I am the owner of the property at 17 Wingaersheek Road, Gloucester, Massachusetts
(the “Mazzola Property”). Since 1994, I have been the owner of the Mazzola Property,
which is improved with a single-family home.
The Mazzola Property is bounded, in pertinent part, by Wingaersheek Road’ to the
southwest and coastal sand dunes, which lead to the private Coffins Beach, to the
northeast and northwest. The coastal sand dunes consist of powder white sand,
sensitive flora, including beach grass and small plants, and protected habitats.
An easement nominally measuring fifteen (15°) feet wide runs from the Mazzola
Property line beginning at Wingaersheek Road to Coffins Beach for approximately
four-hundred fifty (450°) feet (the “Easement”).
The beginning portion of the Easement is located on my gravel and dirt driveway. The
Easement then narrows to approximately four to five (4’-5’) feet when it reaches the
4
coastal sand dunes leading to the Coffins Beach. Attached hereto as Exhibit A are true
and accurate photographs of the Easement. The green spray paint marks fifteen (15”)
feet from the point (property line) at which the width of the Easement is measured.
Portions of the Easement are located within the one-hundred (100°) foot wetlands
buffer and coastal dune zones in Gloucester.
Portions of the Easement are located approximately thirteen (13”) feet from my home
on the Mazzola Property.
I have personally witnessed Defendants John F. O’Brien and ‘Bonita J. O’Brien (the
“O’Briens”), their invitees, licensees, and guests using four-wheel all-terrain vehicles,
often with a trailer and jet-ski attached, and other motor vehicles over and on the
Easement to access Coffins Beach.
The O’Briens own a blue all-terrain vehicle. I understand Mr. O’Brien owns a pickup
truck.
10. The O’Briens live at 8 Sand Dollar Circle, Gloucester, Massachusetts, which is located
approximately six hundred (600°) feet from the Mazzola Property.
11. Over the years, the O’Briens’ rampant use of all-terrain vehicles over and on the
Easement has caused severe damage to the Mazzola Property, including, but not limited
to, irreparable damage and destruction to the coastal sand dunes and sensitive flora.
12. The O’Briens’ use of all-terrain vehicles has significantly dispersed, diminished and
otherwise eroded the powder white sand, changed its sediment patterns, and destroyed
the localized beach grass and small plants. In addition, such use has widened and
altered the shape and elevation of the Easement.
13. In addition, the O’Briens’ use of all-terrain vehicles has created excessive noise that
disrupts me and my family, including, but not limited to, my five (5) year-old
granddaughter whose room is on the first floor of my home located nearest to the
Easement.
14. I understand that the O’Briens’ causing irretrievable damage to the coastal sand chines
and sensitive flora on the Mazzola Property and excessive noise proximate to my home
has diminished the value of the Mazzola Property.
15. I also understand that the O’Briens’ causing severe and continual damage to the coastal
sand dunes subjects my home to an increased risk of flooding.
16. The O’Briens often use and park a motor vehicle to drop off items at the point of the
Easement where the gravel and dirt driveway turns to coastal sand dunes. Because of
the size of their motor vehicles, the O’Briens habitually trespass onto portions of the
Mazzola Property not subject to the Easement, often leave their belongings in those
locations, and further trespass onto the Mazzola Property by using my driveway as a
turnaround.
17 Since filing the Complaint on October 17, 2016, I have personally seen the O’Briens
increase their use of all-terrain vehicles and other motor vehicles over and on the
Easement. Their use of vehicles on the Easement has become noticeably more frequent
and thereby significantly more damaging to the Mazzola Property and disruptive of the
peace, comfort and enjoyment of the Mazzola Property by me and my family.
18 Because of this, my wife Roberta and I have installed video cameras to monitor the
O’Briens’ misuse of the Easement. My attorney has previously shared those videos
with counsel to the O’Briens. Those aforementioned video cameras do not contain
microphones or speakers and do not pick up any sounds.
19, Enclosed herewith and marked as Exhibit B is a CD containing true and accurate
videos taken between July 22, 2017 and August 20, 2017 showing the O’Briens’
repeated use of all-terrain vehicles and other motor vehicles over and on the Easement.
20 I have spoken with the O’Briens on numerous occasions about their misuse of the
Easement and the visible damage it has caused to the Mazzola Property. The O’Briens
refuse to understand or appreciate the damage and disruption they are causing to the
Mazzola Property and to me and my family.
21 The O’Briens’ use of all-terrain vehicles and other motor vehicles is a safety hazard for
me and my family and those lawfully traversing the Easement by foot.
22. I understand that Chapter 90B of the General Laws of the Commonwealth of
Massachusetts regulates the use of recreation vehicles, including all-terrain vehicles,
within the Commonwealth and vests enforcement of its provisions in local law
enforcement.
23 T understand that Section 26(f) of Chapter 90B prohibits the operation of a recreation
vehicle that causes damage to public or private property, including, but not limited, to,
wetlands and priority habitats. Attached hereto as Exhibit C are true and accurate
copies of the provisions of Chapter 90B pertinent to this action.
24 I understand that, pursuant to the Code of Ordinances of the City of Gloucester (the
“Code”), the Gloucester Conservation Commission has jurisdiction over resource areas
in the City, including those portions of the Mazzola Property located within the one
hundred (100’) footwetlands buffer and coastal dune zones.
25 I understand that although it is the O’Briens causing damage to the Mazzola Property
via their use of all-terrain vehicles over and on the Easement, I, as the owner of the
Mazzola Property, may be subject to liability to the City for any alteration or other
disturbance to the resource areas located on the Mazzola Property. I therefore
understand that I may be subject to monetary fines and other enforcement actions by
the City because of such use by the O’Briens. Attached hereto as Exhibit D are true
and accurate copies of the provisions of the Code pertinent to this action.
26,1 am a member of the Wingaersheek Improvement Association, Inc. (the “WIA”),
which is a Massachusetts non-profit corporation run by homeowners in immediate
nearby areas to promulgate and enforce of tules for the nearby private beaches,
including Coffins Beach.
27 The WIA prohibits the use of motorized vehicles on Coffins Beach. Attached hereto
at Exhibit E is a true and accurate photograph of the WIA’s sign on Wingaersheek
Road.
28 I understand that the O’Briens will continue to useall-terrain vehicles over and on the
Easement, and thereby continue to irretrievably damage the Mazzola Property, until
they are prohibited and enjoined by the Court from doing so.
[The Following Page is the Signature Page]
Subscribed and sworn to under the pains and penalties of perjury this) ? Tay of August, 2017.
Philip
Mypl—
ola
¢
ESSEX SUPERIOR COURT
7M SEP 28 AWE 30
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3.4 COMMONWEALTH OF MASSACHUSETTS ESSEX, ss. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 1677-CV-01587 PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN WINGAERSHEEK REALTY TRUST, Plaintiff Vv, JOHN F. O'BRIEN, and BONITA J. O’BRIEN, —_____Defendants___——_) AFFIDAVIT OF PHILIP J. MAZZOLA I, Philip J. Mazzola, do hereby depose and state the following facts based on my personal knowledge known to be true by me, and as to those stated on information and belief, I believe them to be true: 1. I am the Trustee of the Seventeen Wingaersheek Realty Trust and the Plaintiff in the above-captioned action. I am the owner of the property at 17 Wingaersheek Road, Gloucester, Massachusetts (the “Mazzola Property”). Since 1994, I have been the owner of the Mazzola Property, which is improved with a single-family home. The Mazzola Property is bounded, in pertinent part, by Wingaersheek Road’ to the southwest and coastal sand dunes, which lead to the private Coffins Beach, to the northeast and northwest. The coastal sand dunes consist of powder white sand, sensitive flora, including beach grass and small plants, and protected habitats. An easement nominally measuring fifteen (15°) feet wide runs from the Mazzola Property line beginning at Wingaersheek Road to Coffins Beach for approximately four-hundred fifty (450°) feet (the “Easement”). The beginning portion of the Easement is located on my gravel and dirt driveway. The Easement then narrows to approximately four to five (4’-5’) feet when it reaches the 4 coastal sand dunes leading to the Coffins Beach. Attached hereto as Exhibit A are true and accurate photographs of the Easement. The green spray paint marks fifteen (15”) feet from the point (property line) at which the width of the Easement is measured. Portions of the Easement are located within the one-hundred (100°) foot wetlands buffer and coastal dune zones in Gloucester. Portions of the Easement are located approximately thirteen (13”) feet from my home on the Mazzola Property. I have personally witnessed Defendants John F. O’Brien and ‘Bonita J. O’Brien (the “O’Briens”), their invitees, licensees, and guests using four-wheel all-terrain vehicles, often with a trailer and jet-ski attached, and other motor vehicles over and on the Easement to access Coffins Beach. The O’Briens own a blue all-terrain vehicle. I understand Mr. O’Brien owns a pickup truck. 10. The O’Briens live at 8 Sand Dollar Circle, Gloucester, Massachusetts, which is located approximately six hundred (600°) feet from the Mazzola Property. 11. Over the years, the O’Briens’ rampant use of all-terrain vehicles over and on the Easement has caused severe damage to the Mazzola Property, including, but not limited to, irreparable damage and destruction to the coastal sand dunes and sensitive flora. 12. The O’Briens’ use of all-terrain vehicles has significantly dispersed, diminished and otherwise eroded the powder white sand, changed its sediment patterns, and destroyed the localized beach grass and small plants. In addition, such use has widened and altered the shape and elevation of the Easement. 13. In addition, the O’Briens’ use of all-terrain vehicles has created excessive noise that disrupts me and my family, including, but not limited to, my five (5) year-old granddaughter whose room is on the first floor of my home located nearest to the Easement. 14. I understand that the O’Briens’ causing irretrievable damage to the coastal sand chines and sensitive flora on the Mazzola Property and excessive noise proximate to my home has diminished the value of the Mazzola Property. 15. I also understand that the O’Briens’ causing severe and continual damage to the coastal sand dunes subjects my home to an increased risk of flooding. 16. The O’Briens often use and park a motor vehicle to drop off items at the point of the Easement where the gravel and dirt driveway turns to coastal sand dunes. Because of the size of their motor vehicles, the O’Briens habitually trespass onto portions of the Mazzola Property not subject to the Easement, often leave their belongings in those locations, and further trespass onto the Mazzola Property by using my driveway as a turnaround. 17 Since filing the Complaint on October 17, 2016, I have personally seen the O’Briens increase their use of all-terrain vehicles and other motor vehicles over and on the Easement. Their use of vehicles on the Easement has become noticeably more frequent and thereby significantly more damaging to the Mazzola Property and disruptive of the peace, comfort and enjoyment of the Mazzola Property by me and my family. 18 Because of this, my wife Roberta and I have installed video cameras to monitor the O’Briens’ misuse of the Easement. My attorney has previously shared those videos with counsel to the O’Briens. Those aforementioned video cameras do not contain microphones or speakers and do not pick up any sounds. 19, Enclosed herewith and marked as Exhibit B is a CD containing true and accurate videos taken between July 22, 2017 and August 20, 2017 showing the O’Briens’ repeated use of all-terrain vehicles and other motor vehicles over and on the Easement. 20 I have spoken with the O’Briens on numerous occasions about their misuse of the Easement and the visible damage it has caused to the Mazzola Property. The O’Briens refuse to understand or appreciate the damage and disruption they are causing to the Mazzola Property and to me and my family. 21 The O’Briens’ use of all-terrain vehicles and other motor vehicles is a safety hazard for me and my family and those lawfully traversing the Easement by foot. 22. I understand that Chapter 90B of the General Laws of the Commonwealth of Massachusetts regulates the use of recreation vehicles, including all-terrain vehicles, within the Commonwealth and vests enforcement of its provisions in local law enforcement. 23 T understand that Section 26(f) of Chapter 90B prohibits the operation of a recreation vehicle that causes damage to public or private property, including, but not limited, to, wetlands and priority habitats. Attached hereto as Exhibit C are true and accurate copies of the provisions of Chapter 90B pertinent to this action. 24 I understand that, pursuant to the Code of Ordinances of the City of Gloucester (the “Code”), the Gloucester Conservation Commission has jurisdiction over resource areas in the City, including those portions of the Mazzola Property located within the one hundred (100’) footwetlands buffer and coastal dune zones. 25 I understand that although it is the O’Briens causing damage to the Mazzola Property via their use of all-terrain vehicles over and on the Easement, I, as the owner of the Mazzola Property, may be subject to liability to the City for any alteration or other disturbance to the resource areas located on the Mazzola Property. I therefore understand that I may be subject to monetary fines and other enforcement actions by the City because of such use by the O’Briens. Attached hereto as Exhibit D are true and accurate copies of the provisions of the Code pertinent to this action. 26,1 am a member of the Wingaersheek Improvement Association, Inc. (the “WIA”), which is a Massachusetts non-profit corporation run by homeowners in immediate nearby areas to promulgate and enforce of tules for the nearby private beaches, including Coffins Beach. 27 The WIA prohibits the use of motorized vehicles on Coffins Beach. Attached hereto at Exhibit E is a true and accurate photograph of the WIA’s sign on Wingaersheek Road. 28 I understand that the O’Briens will continue to useall-terrain vehicles over and on the Easement, and thereby continue to irretrievably damage the Mazzola Property, until they are prohibited and enjoined by the Court from doing so. [The Following Page is the Signature Page] Subscribed and sworn to under the pains and penalties of perjury this) ? Tay of August, 2017. Philip Mypl— ola ¢ ESSEX SUPERIOR COURT 7M SEP 28 AWE 30