Court Uproots Lawsuit Over Illegal Tree House

BOSTON (CN) - The tree house at the root of a bitter dispute between Massachusetts neighbors cannot support a federal lawsuit, the 1st Circuit ruled.

Charles Freeman and Daniela Freeman, of Hudson, Mass., had sued their town and state, as well as several public agencies and officials, amid allegations that they breached a conservation restriction associated with their home.

They said the scrutiny stemmed from a report filed by their neighbor, Sgt. Thomas Crippen of the Hudson police, over a tree house they built on a restricted conservation area within their property.

The Hudson Conservation Commission ultimately found more problems, saying the Freemans had committed several other land-use violations, including fences, walls, structures and large amounts of fill that were not permitted in the restricted zone.

Further complicating the case, Charles Freeman had built his property and the surrounding homes as part of a development called Freeman Circle.

Freeman touts this connection on his corporate website. "Most contractors would never choose to live in a development of their own construction," the website states. "Any imperfections in their work would put them in immediate range of unhappy customers. Charles Freeman is so confidant with his work, he choose (sic) to place his house at the end of the cul-de-sac on Freeman Circle and make himself available to each homeowner in his development."

The Massachusetts Department of Environmental Protection eventually took over enforcement of the conservation issues at the Freeman residence, earning its place as a defendant in the suit.

The Freemans claimed that state and local officials denied their right to equal protection by arbitrarily enforcing conservation land-use restrictions against them while ignoring supposed violations by neighbors. In particular, they claimed that the Crippens had built a pool on their property, and that another neighbor, Dana MacPhee, had removed trees and laid down a walkway.

A federal judge dismissed the case, and the 1st Circuit affirmed earlier this month, noting that the neighboring properties make for an "inapt" comparison.

"While the properties of all three abut the same protected area, the similarities essentially end there," Judge Jeffrey Howard wrote for a three-judge panel.

The Freemans' violations occurred within the conservation easement, and there is no allegation of such a violation against the Crippens and MacPhees, the ruling states.

"Against this backdrop, the Freemans cannot demonstrate that they were similarly situated to their neighbors, and their equal protection claim against the Conservation Commission defendants necessarily fails," Howard wrote.

Mr. Freeman had also accused the Hudson Police Department of violating his due-process rights with allegedly trumped-up charges of criminal harassment and threatening to commit a crime, which were filed after he had an "unpleasant encounter" with MacPhee, according to the ruling.

The court noted that the charges were eventually dropped and that there was no due-process violation since "these charges were predicated on prior incidents between MacPhee and Mr. Freeman."

"Thus, while the police department defendants may or may not have acted with malice, they did not act in the absence of any evidence," Howard wrote. "Furthermore, none of the police department's subsequent actions - failing to investigate further, obtaining an ex parte probable cause hearing, and discussing the case with the prosecutor - shock the conscience. If, as alleged, improper personal motivations caused the investigation to follow a certain course, that fact may form the basis for a claim of malicious prosecution, but not a due process violation."

The court also refused to take the trial court to task for barring Freeman from presenting certain evidence.

"Other than invoking the label 'public records,' which is too broad a term to rely on, the Freemans make no developed argument as to why documents such as the 911 transcripts and police incident reports, which would not be subject to judicial notice, are either categorically or in this instance eligible to be considered on a motion to dismiss," Howard wrote. "They thus have waived any other claim that the documents may be considered."

Barry Bachrach, the attorney for the Freemans, would not comment beyond saying that his clients are pursuing a separate case over similar issues in Middlesex Superior Court.

A Hudson town official likewise noted that "police matters are still pending" regarding the neighborhood feud.

The Massachusetts Attorney General's office declined to comment on the ruling, while the Department of Environmental Protection said that the affirmation of dismissal "speaks for itself."

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