Commonwealth of Massachusetts
Norfolk, SS. Supreme Judicial
Court No.
Appeals Court
No. 02-P-736
Donald Blunt & Ruth Blunt
Plaintiffs/Appellees
v.
Eugene Mahoney
Defendant/Appellant
Application For Further Appellate Review
Pursuant to Rule 27.1 of the Massachusetts Rules of Appellate Procedure, Eugene Mahoney, the defendant/appellant in the above captioned action, applies for leave to obtain further appellate review of the subject matter.
A. Statement Of The Issue With Respect To Which The Defendant Seeks Further Appellate Review
Whether two restrictive covenants on the petitioner's property should have been declared null and void pursuant to G.L. c. 184, § 30 where their enforcement provided no actual and substantial benefit to the plaintiffs.
B. Statement Of Prior Proceedings
On August 26, 1999, the plaintiffs Donald and Ruth Blunt filed a complaint in the Norfolk Superior Court against Eugene Mahoney asserting several violations of restrictive covenants on a parcel of land owned by Mahoney in Braintree, Massachusetts. [Appendix 9, 15-17]. Mahoney filed an answer denying the allegations and a counterclaim seeking to have four restrictive covenants (Covenants 4, 5, 6, and 7) declared null and void or modified. [Appendix 9, 24-29]. The case proceeded through discovery. The parties filed, and the court considered, a number of motions not relevant to the instant application. [Appendix 9-14].
On November 19 and 20, 2001, a jury-waived trial was conducted before Butler, J. On January 4, 2002, Judge Butler issued Findings of Fact, Rulings of Law and Order for Judgment. In her findings, Judge Butler declared Covenants 5 and 6 null and void but upheld Covenants 4 and 7. Judgment entered on February 19, 2002. On March 19, 2002, Mahoney filed a timely notice of appeal. [Appendix 13-14, 30-42]. The case was entered in the docket of the Appeals Court on May 16, 2002. On March 23, 2004, the Appeals Court (Perretta, Cypher and Doerfer, JJ.) issued a memorandum of decision and order affirming the judgment. [Appendix 1-7]. Mahoney now seeks further appellate review.
C. Statement Of Facts
For purposes of this application, the petitioner will adopt the factual findings set forth in the trial judges Findings of Fact, Rulings of Law and Order for Judgment. Those factual findings are set forth as follows:
The plaintiffs, a married couple, own a single-family home at 24 Faulkner Place in Braintree. They have lived there since 1964.[1] In 1980, the defendant, Eugene Mahoney and one Daniel Lauria acquired property located on 285 Washington Street abutting the plaintiffs' property. The defendant and his partner intended to build condominium units on their property.[2]
On the front portion of the land, closest to Washington Street, was a ten room house in poor condition and a run-down barn. The house contained an office. The rest of the property, which was undeveloped, sloped to the west where it was bordered by a small brook. The condominium proposal was opposed by the plaintiffs and was not approved by the Town. Thereafter, Lauria conveyed his interest in the property to the defendant.
The defendant, as sole owner, next sought an extension of a nonconforming use to allow offices throughout the entire structure of the house. The plaintiffs and other abutters opposed that plan as well. On March 31, 1982, the night of the hearing before the Zoning Board of Appeals, the defendant executed a declaration of restrictive covenants to appease the plaintiffs and other neighbors.[3] The declaration states specifically the purposes of the agreement, the intent of the parties, and the particular restrictions:
Declaration made this 31st day of March, 1982, by Eugene Mahoney of 285 Washington Street, Braintree, Massachusetts (hereinafter sometimes referred to as the “Owner”) for the benefit of the premises listed on Schedule “A” annexed hereto, the legal title holders of said benefited premises being also listed on Schedule “A” (said titleholders been hereinafter sometimes refer to as the “Associates”).
Whereas, the Owner and the Associates are desirous of developing and maintaining a harmonious relationship in the neighborhood of Washington Street and Faulkner place, Braintree, Massachusetts; and
Whereas it is the desire of the Association to maintain the single-family residential characteristic of the neighborhood; and ....
The intent of the parties is to place certain restrictions on the use of a portion of the premises known as 285 Washington Street, and Lot 6C, Faulkner place, Braintree, Mass. and further identified as Parcels I and IV, respectively, on a deed to the Owner dated September 22, 1980, and recorded ...”
Now, therefore, in consideration of these premises, and for $1.00 and for other good and valuable consideration, receipt of which is hereby acknowledged, it is declared:
A. Restrictive Covenants
***
4. No building, dwelling, or structure of any kind shall be erected such that a portion of said building, dwelling, or structure is nearer than two hundred fifty feet (250') from the Westerly lot line of the premises. Except as otherwise expressly provided for herein no artificial fixture such as by way of illustration only sidewalks, driveways, patios, concrete slabs, or brick, shall be installed on the back lot within two hundred fifty feet (250') from the Westerly lot line of the premises. Nothing contained in this paragraph shall preclude the creation of a green area less than two hundred fifty feet (250') from the Westerly lot line of the premises, provided that no artificial structure be erected or installed thereon.
5. No building, dwelling, sidewalk, driveway, or other artificial installation of any kind shall be erected or installed such that any portion of said building, dwelling, sidewalk, driveway, or other artificial installation other than gas, water, sewer, electric and telephone lines if required for the premises by the Town of Braintree, its agent or by the respective utility (all lines to be underground where reasonably possible) shall be erected or placed within twenty (20) feet of so much of the northerly lot of line of the premises as lies within the area presently designated by the Town of Braintree Zoning By-Laws as a Residence B District. (Said portion of the premises is sometimes herein after referred to as the “back lot”).
If development shall begin on that portion of the premises not otherwise restricted by this Declaration or by statute, ordinance, or by-law, the equitable and/or legal title holder to the premises shall, not later than the date of the beginning of such development, erect a fence on a line not less than twenty feet (20') from the northerly line of the back lot. The fence shall not be less than five and one-half feet (5 1/2') in height, shall be opaque, and shall be reasonably designed and erected so as to be in conformity with the residential character of the neighborhood.
6. No construction or earth removal shall occur so as to cause the grading of any portion of the premises to be at a higher level than the present grading level of the northerly abutters of the premises. No runoff shall issue from any portion of the back lot, except in the direction of that portion of the brook shown on the aforementioned plan. No runoff shall issue from any portion of the premises in the direction of the northerly abutters of the premises.
7. No construction of any kind shall occur on said Lot 6-C except as expressly provided herein.
If the Town of Braintree, or its duly designated agent, shall in writing determine that, in consideration of health and safety, said a Lot 6-C must be used as a means of ingress or egress for emergency vehicles to any portion of the premises located on the back lot, then the legal and/or equitable title holder of said Lot 6-C and said premises may lay down a driveway through the said back lot, but only to the extent minimally necessary to comply with any written directions of the Town of Braintree or its duly designated agent. ...
B. General
1. This Agreement is intended and declared to benefit those premises shown on Schedule “A”[4] annexed hereto and to burden the premises previously identified as Parcels I and IV on a deed to the Owner dated September 22, 1980, and recorded at Norfolk Deeds, Book 5785, Page 193.
2. This Agreement runs with the land, and shall except where the context does not so admit to be construed as being covenanted by and between the Owner, his heirs, successors and assigns.
***
4. Definitions
a. “Plan” except where otherwise expressly indicated, reference to the “plan” is to Assessor's Plan #2027; Plot #6, or a copy thereof. A copy of which is to be recorded herewith.
b. “Front lot” that portion of Parcel I on a deed to Eugene Mahoney dated September 22, 1980 within the area presently designated as a residence C district by the Town of Braintree Zoning By-Laws.
c. “Back lot” that portion of Parcel I on a deed to Eugene Mahoney dated September 22, 1980 within the area presently designated as a residence B district by the Town of Braintree Zoning By-Laws.
5. The Associates, their heirs, successors and assigns, shall have both remedies at law and in equity for any breach by the Owner, his heirs, successors or assigns of this Declaration.
As a result of the signing of the restrictive covenants, the abutters withdrew their opposition. The restrictive covenant was recorded in Norfolk Deeds, Book 6077, page 303, and the Zoning Board of Appeals granted an extension of nonconforming use as to the house. The defendant expended substantial sums to renovate the house and remove the barn. The house, which has the appearance of a large colonial type home, has been used for offices. It is very well maintained and landscaped.
The remainder of the defendant's property is zoned for residential use and is substantially overgrown with brush and small trees. A small stream bed runs along the very westerly end (rear) of the property in a north and south direction.
In March, 1994, over the opposition of the plaintiffs, the defendant applied for, and received a variance to create two house lots on the rear property. There is nothing in the restrictive covenants which prohibit the development of the defendant's land. Thereafter, the defendants undertook development, beginning with the installation of a driveway on the approved plan. The defendant arrange for clean fill to be brought to the site. Braintree By-Laws require approval from the zoning Board of Appeals for fill exceeding fifty yards. The plaintiffs challenged the defendant's commencement of the project without a fill permit. In September, 1998, the defendant sought approval for the fill from the Zoning Board of Appeals. The plaintiffs opposed such approval, but it was ultimately granted on January 26, 1999.[5]
Simultaneously, the plaintiffs brought this action, alleging breach of certain of the restrictions and seeking enforcement thereof.[6] The defendant in his answer denied any breach and by counterclaim, sought a determination that the restrictions are unenforceable.
While the covenant consist of seven restrictions, the parties raised no issues concerning ¶¶ 1-3 of the covenant.
The plaintiffs in their complaint assert violations of:
Restriction #5, second paragraph, asserting that “development” (undefined) had begun and that a[n] opaque fence at least five and one-half feet high should be erected not less than twenty feet from the northern boundary of the houses on Faulkner Place.
Restriction #6, claiming that the grading of the fill exceeded the grade level of 1982.
The defendant seeks a declaration that #5 and #6 as well as restriction #4 and #7 are unenforceable.
Restriction 4, prohibiting the construction of any building or dwelling with two hundred fifty (250') of the rear lot.
Restriction #7 prohibiting construction on Lot 6-C.
Additional facts relevant to these four restrictions are as follows:
As to #4: This area consisting of almost three acres, is completely overgrown and slopes from east to west, toward an existing stream bed at the rear of the property. The property is subject to the Braintree By-Laws, Zoning By-Laws, Subdivision Control Law and the Wetlands Protection Act. Due to the stream bed at the rear of the property, a substantial portion of the same is controlled by the Braintree Conservation Commission, a public body instituted for the purpose of addressing any valid concerns of the plaintiffs and other abutters, and which can impose conditions upon any development in that area.
As to #5: The defendant does not oppose with the prohibition as to building within twenty feet of the northerly line. Within the twenty foot buffer zone in effect, the fence not only would serve no useful purpose, but it would substantially detract from the residential character of the neighborhood. At approximately 700 ft. long, it would create a long, narrow and unsightly corridor of land. Since several rear yards on Faulkner place are fenced, it would create a corridor of potential mischief. That enclosed area would likely become an unkempt overgrown alley, potentially used for dumping unwanted items and materials. Further, it would require constant monitoring of the actual property lines by the defendant to assure he retained his property from adverse possession as several abutters on Faulkner Place already have intruded onto the defendant's property, including at least one who has erected a stockade fence twenty feet onto the defendant's property and another who has erected a large shed on a portion of Lot 6C. To require the expense of this fencing for the twelve year remaining life of the covenant is inequitable and would not be of substantial benefit to the plaintiffs or any other beneficiary of the covenant.
As to #6: The area of approved filling is the driveway shown on the Subdivision Plan, the nearest point being approximately seventy to eighty feet from the plaintiffs' property. The fill presently is stockpiled awaiting the outcome of the plaintiffs' appeal. Once the appeal is concluded the fill is to be moved into place primarily on the southerly side of the driveway further distant from the plaintiffs. There was no evidence that the level of the fill, once dispersed, would exceed the restrictive height. The defendant's property slopes sharply in a westerly direction to the stream bed. There is no evidence that water will not follow that natural course. Any development of the property would be controlled by the Braintree Planning Board and Conservation Commission, which would address any legitimate concerns of the plaintiffs.
As to #7: Construction, or non-emergency access to this lot which fronts on Faulkner Place would inevitably aggravate existing traffic and parking challenges on this narrow, densely populated street.
[Appendix 31-37].
D. The Trial Court Should Not Have Enforced Two Restrictive Covenants On The Petitioner's Property Pursuant To G.L. c. 184, § 30 Where Their Enforcement Provided No Actual And Substantial Benefit To The Plaintiffs
In this case, the trial judge correctly ruled that two of the challenged restrictive covenants provided no benefit to the plaintiffs and were void and unenforceable. However, the judge declared that two other restrictive covenants challenged by the defendants were valid and enforceable. The defendant contends that the judge erred in upholding these covenants. More specifically, he argues that the record fails to establish that the continued enforcement of the two surviving covenants will provide an “actual and substantial benefit to” the plaintiffs. G.L. c. 184, § 30. See Connaughton v. Payne, 56 Mass. App. Ct. 652, 655 (2002). Contrast Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., 433 Mass. 285, 291 n.6 (2001) (“Stop & Shop does not contend that the judge erred in concluding that the restriction, pursuant to G.L. c. 184, § 30, is 'of actual and substantial benefit' to Urstadt”). Moreover, in reaching this result, the judge effectively relaxed the stringent standards set forth in G.L. c. 184, § 30. The Appeals Court should have reversed the judgment and declared the two challenged covenants void and unenforceable. Further appellate review is appropriate in these circumstances.
Both the Legislature and the courts of this Commonwealth highly disfavor restrictive covenants. See Stop & Shop Supermarket Co. v. Urstadt Biddle Props., 433 Mass. at 290. In fact, the Legislature enacted G.L. c. 184, §§ 26-30 to permit “landowners to remove or prevent the enforcement of obsolete, uncertain or unenforceable restrictions . . . .” Labounty v. Vickers, 352 Mass. 337, 348 (1967). Under G.L. c. 184, § 30, “[a] restriction may be enforced only if it 'is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement.'” Garland v. Rosenshein, 420 Mass. 319, 321 (1995). G.L. c. 184, § 30(4) promotes the reasonable use of land and favors the use for which the land is most suitable. It is intended to increase the marketability of real estate by removing obsolete restrictions. See Blakeley v. Gorin, 365 Mass. 590, 599 (1974). Purpose, geographic extent, and duration are among the criteria for testing the reasonability of restrictive covenants. See Exit 1 Props. Ltd. Pshp. v. Mobil Oil Corp., 44 Mass. App. Ct. 571, 574 (1998) (citations omitted).
In order to uphold the trial court's findings as to whether a restrictive covenant provides an actual and substantial benefit, an appellate court must determine whether the record reasonably supports the judge's conclusion. Connaughton v. Payne, 56 Mass. App. Ct. at 656; Atwood v. Walter, 47 Mass. App. Ct. 508, 513 (1999). In the absence of such support, the trial court's findings are clearly erroneous. Atwood v. Walter, 47 Mass. App. Ct. at 513.
1. Covenant #4
Judge Butler clearly erred in finding that the plaintiffs and the neighborhood in general benefit from restrictive covenant No. 4, which prohibits any development or construction within two-hundred fifty feet of the stream bed at the rear of the property. The court upheld the restriction based on the concerns of neighbors “about potential drainage problems ... as well as the grading provisions”. [Appendix 39]. While these may be valid concerns in the abstract, the judge's own findings clearly indicate that the covenant provides no actual benefit to the plaintiffs. See Garland v. Rosenshein, 420 Mass. at 320 n.2 (that no restriction shall in any proceeding be enforced or declared to be enforceable unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement). As noted above, the judge found that “[t]he property is subject to the Braintree By-Laws, Zoning By-Laws, Subdivision Control Law and the Wetlands Protection Act. Due to the stream bed at the rear of the property, a substantial portion of the same is controlled by the Braintree Conservation Commission, a public body instituted for the purpose of addressing any valid concerns of the plaintiffs and other abutters, and which can impose conditions upon any development in that area.” [Appendix 36].
In view of the court's own findings, the plaintiffs' concerns would necessarily be fully addressed by bylaws that were written to address such concerns and by government entities whose function it is to determine whether development of the property would have any adverse impact. See G.L. c. 184, § 30 (“changes ... in applicable public controls of land use or construction, or in any other conditions or circumstances, reduce materially the need for the restriction or the likelihood of the restriction accomplishing its original purposes or render it obsolete or inequitable to enforce except by award of money damage”). Stated otherwise, if development of the property would cause any of the harms that the plaintiffs fear, they would be fully protected by the rules and procedures already in place. If such development would not have any adverse impact, the restrictive covenant would do nothing more than harm the petitioner by restricting his use of his land. Clearly, the covenant does not actually and substantially benefit the plaintiffs, and it should not have been enforced.
2. Covenant #7
The trial court also erred when it found that that the plaintiffs in particular and the neighborhood in general would benefit from the covenant 7, which prevents the petitioner from developing Lot 6C, which fronts on Faulkner Place and which would provide access to the rear portion of his property. Again, the record does not support the judge's conclusion, and indeed, her findings appear to contradict her conclusion.
The judge found that “[c]onstruction, or non-emergency access to this lot which fronts on Faulkner Place would inevitably aggravate existing traffic and parking challenges on this narrow, densely populated street.” [Appendix 37]. Nothing in the record supports this finding. Because of the location of the property, any development for residential use would have to include the construction of off-street parking. There would therefore be no additional parking burden on Faulkner Place. Further, because Faulkner Place is a dead-end street, it carries only local traffic-i.e., residents and their guests. Contrary to the judge's decision, the proposed development of the property would not change the dead-end character of the street. The petitioner has not proposed to connect the driveway with any surrounding streets. Ultimately, the ever so slight increase in the volume of traffic attributable to the addition of one or, at most, a few houses would not be noticeable to the plaintiffs or others on the street. Certainly, the traffic concerns would not justify the enforcement of the covenant, as any benefit could not be considered substantial.
As to the aesthetics, the judge found that the back lot was substantially overgrown with small trees and brush and that there was debris, including discarded tires, visible on the property. The judge also found that the structure at 285 Washington Street was in poor condition and had a run-down barn in the back at the time the petitioner purchased it. She further found that “[t]he defendant expended substantial sums to renovate the house and remove the barn” and that the property “is very well maintained and landscaped.” Notwithstanding its use as an office building, it “has the appearance of a large colonial type home[.]” [Appendix 34]. Where the back lot is zoned for single family residences, where the judge acknowledged the fact that the property in is present state is unattractive, and where the judge acknowledged the petitioner's track record in maintaining the residential character of the neighborhood with regard to 285 Washington Street, the record simply fails to support the conclusion that development of the back lot would adversely impact the character of the neighborhood. Indeed, even under the facts found by the judge, the proposed development would improve the aesthetics of the neighborhood and certainly would not cause any substantial harm to the plaintiffs. Contrast Connaughton v. Payne, 56 Mass. App. Ct. at 656 n.2.
Again, neither the plaintiffs nor anyone with a right of enforcement will derive any substantial benefit from the enforcement of the restriction. To the extent that the trial judge found such a benefit, the record does not support such findings, and they are clearly erroneous. Further, to the extent that the judge applied a lower standard than required under G.L. c. 184, § 30, her conclusions are fatally flawed. See Planned Parenthood Federation, Inc. v. Problem Pregnancy of Worcester, Inc., 398 Mass. 480, 484 (1986), citing Marlow v. New Bedford, 369 Mass. 501, 508 (1976).
The petitioner requests this court to remand with instruction to the lower court that the restrictive covenants discussed provide neither an actual and substantial benefit to the Blunts and the neighborhood in general. Or in the alternative remand for a hearing to determine the actual and substantial benefits derived from the continuance of the restriction and have the court adjust the restriction to make it reasonable in the circumstances of the parties. See Exit 1 Props. Ltd. Pshp. v. Mobil Oil Corp., 44 Mass. App. Ct. at 576, citing Stainless, Inc. v. Colby, 364 Mass. 773, 778 (1974) (a court may, in enforcing a restriction on competition, adjust the restriction to make it reasonable in the circumstances of the parties at the time they bring the question before the court).
E. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant respectfully requests that his application for further appellate review be allowed.
Respectfully submitted,
Eugene Mahoney
By his attorney,
Dana Alan Curhan
B.B.O. # 544250
101 Arch Street
Suite 305
Boston, Massachusetts 02110
(617) 261-3800
Assisting on the Application:
Brad Bennion,
Legal Intern
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