Opinion
11-P-250
03-21-2012
DANIEL M. McDONALD v. TOWN OF SOMERSET & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Richard Kimpel seeks to build a dock on his waterfront property in Somerset. He obtained a ruling from the town zoning board of appeals (board) that a variance is not required to construct a dock. The plaintiff, Daniel M. McDonald, a neighbor and original grantor of the subdivided lot on which Kimpel seeks to build, appealed to Superior Court from the board's decision pursuant to G. L. c. 40A, § 17, and also sought a declaration allowing him to enforce certain restrictions on the property which, he contends, prohibit Kimpel from constructing the dock. The judge granted summary judgment to Kimpel on the zoning appeal and to McDonald on the declaratory judgment claim. McDonald and Kimpel have cross-appealed, McDonald contending that the zoning by-laws of Somerset were unambiguous and improperly applied, and Kimpel arguing that the restrictions on his land are invalid, unenforceable, or inequitably enforced by McDonald. Because we conclude that McDonald's zoning claim is waived and the restrictions are valid and enforceable, we affirm.
The property on which Kimpel desired to construct the dock is lot 2 of the four lots in the subdivision. We refer to this lot as Kimpel's lot; it is immaterial to our decision whether, as suggested by the record, he has also purchased lot 1.
McDonald also suggests that the merits of the zoning dispute were not properly before the trial court on summary judgment, but provides no record or legal support for his contention. His argument does not rise to the level of reasoned appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Zoning appeal. Section 9.3.2(b)(1) of the Somerset zoning by-law states that, in coastal flood zones such as the one in which Kimpel's lot lies, '[a]ll new construction shall be located landward of the reach of mean high tide.' The board found that it would be nonsensical to apply this provision to docks, which by their nature must extend beyond the reach of mean high tide, and held that 'new construction' did not include docks for the purpose of the by-law. Aside from an irrelevant provision of the State building code, McDonald cites no authority to support his contention that the decision of the board was arbitrary or beyond its jurisdiction, therefore failing to provide reasoned appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). He also failed to present any serious argument against the board's decision in the trial court. See Bruno v. Board of Appeals of Wrentham, 62 Mass. App. Ct. 527, 531-532 (2004). He has waived his claim and we need not consider the issue further.
Deed restrictions. Prior to conveying any of the lots of the subdivision in which Kimpel and McDonald reside, McDonald (acting as trustee for the trust that owned the land) recorded a declaration of restrictions (declaration) which, among other things, protects the views of all lot owners by restricting the location of buildings, structures, and other improvements to the areas marked with cross hatch on an annexed schedule. The declaration provides that it runs with the land and binds purchasers of any of the lots in the subdivision. McDonald, as declarant, reserves the right to make exceptions to the covenants and restrictions as deemed 'necessary and proper from time to time.' Although the declaration was not referenced in the deeds to Kimpel or his grantor, it was referenced in deeds relating to the two other lots McDonald conveyed before Kimpel bought his lot.
Kimpel argues that McDonald lacked authority as trustee to restrict the land; the restrictions did not run with the land; the restrictions as a whole were not part of a common scheme; the particular restriction at issue was not part of a common scheme; and, assuming McDonald had the authority to block the construction of the dock, he acted inequitably and unreasonably in doing so.
The trust document provides that the trustee shall have the power to 'grant or acquire rights or easements and enter into agreements and arrangements' regarding the land in question. The declaration caused McDonald to 'acquire rights' in the land. See Labounty v. Vickers, 352 Mass. 337, 347 (1967) ('A restriction on the use of land is a right to compel the person entitled to possession of the land not to use it in specified ways' [emphasis supplied; quotation omitted]). Kimpel's argument that the declaration was beyond McDonald's authority as trustee therefore fails.
Kimpel argues, citing Garland v. Rosenshein, 420 Mass. 319, 321-322 (1995), and Orenberg v. Johnston, 269 Mass. 312, 316 (1929), that the declaration confers personal benefits on McDonald, and therefore does not run with the land and cannot bind Kimpel as a subsequent purchaser. The declaration expressly states that the covenants and restrictions contained therein are for the benefit and general welfare of all, are imposed as a part of a common scheme, and are to run with the land. Building is expressly restricted by the declaration to the cross hatched areas. Given the strong presumption that a servitude runs with the land, see Schwartzman v. Schoening, 41 Mass. App. Ct. 220, 223 (1996), and the clearly expressed intention that the restrictions be appurtenant to the land, we conclude that the restrictions in the declaration do run with the land and are therefore enforceable against subsequent purchasers. While it may be that McDonald reserved a personal right to make exceptions to the restrictions, it does Kimpel no good to argue that such a right does not run with the land. Because the restrictions clearly preclude the construction of the dock as proposed, Kimpel can build it only if McDonald grants an exception. Moreover, a grantor may retain the ability to supervise and enforce restrictions during his lifetime. See Harrod v. Rigelhaupt, 1 Mass. App. Ct. 376, 382-383 (1973) (upholding restrictions in common scheme where grantor retained ability to supervise and enforce restrictions during his lifetime). Here, even if construed as personal, McDonald's right to approve exceptions may be exercised only if he retains an interest in one of the subdivided lots. This is in stark contrast to both Garland and Orenberg, where the party seeking to enforce a servitude had no land that was benefited by it.
Next, noting that the deeds for his lot do not explicitly refer to the restrictions in the declaration, Kimpel argues that the declaration does not create a common scheme for the subdivision because a preponderance of the lots were not conveyed subject to it. However, Popponesset Beach Assn. v. Marchillo, 39 Mass. App. Ct. 586 (1996), on which he relies, states that a preponderance of lots is not the applicable standard for a common scheme in Massachusetts. See id. at 590-591. Rather, in this case, 'a seller of land [bound] that vendor's remaining land with restrictions by means of a writing,' thereby creating a common scheme. Id. at 590. As noted above, in the preamble of the declaration, McDonald stated that he was imposing restrictions 'as part of a common scheme on each of said lots hereinafter conveyed.' See Harrod v. Rigelhaupt, supra at 382 ('the existence or not of a common scheme of development is to be determined by the intent of . . . the common grantor, in the light of all the attendant circumstances'). It is reasonable to charge Kimpel with constructive notice of the declaration because, in this small subdivision, a diligent search of the grantor index in the registry of deeds would readily have uncovered it. See Guillette v. Daly Dry Wall, Inc., 367 Mass. 355, 359 (1975) ('the purchaser cannot be safe if the title examiner ignores any deed given by a grantor in the chain of title during the time he owned the premises in question. . . . A search for such deeds is a task which is not at all impossible').
Kimpel has not argued that he lacked actual notice of the restrictions prior to his purchase of the land.
Finally, Kimpel contends that McDonald acted inequitably in blocking the construction of the dock. See Donoghue v. Prynnwood Corp., 356 Mass. 703, 707 (1970) (grantor given ability to approve or reject construction in deed restriction, without specified standard, must do so 'objectively, honestly, and reasonably'); Atwood v. Walter, 47 Mass. App. Ct. 508, 515-516 (1999), citing G. L. c. 184, § 30 (noting equitable defenses to enforcement of restrictive covenants). The restriction in question creates a presumption that construction outside the specified areas is not permitted unless McDonald as declarant considers it 'necessary and proper' to make an exception. Asserting that the sole purpose for the restriction is preserving the water view from each lot, Kimpel points to deposition testimony indicating that McDonald considered other issues beyond water views and did not consult with engineers concerning the effect of the proposed dock on the views. However, the preamble to the declaration indicates that the restrictions were designed so that 'said development will be a more enjoyable place to live and for the benefit of the general welfare of all.' The other reasons cited by McDonald, including noise and diminution of property values, are legitimate concerns of a neighboring property owner. Indeed, another restriction in the declaration prohibits 'anything . . . which may be or may become an annoyance or nuisance to the neighborhood.' Under these circumstances, Kimpel has not shown that McDonald acted unreasonably and arbitrarily in denying approval for the dock. Compare Donoghue v. Prynnwood Corp., supra at 707-708; Atwood v. Walter, supra at 517-518.
McDonald or any other lot owner could therefore have sought an injunction to block the construction of the dock under paragraph 22 of the declaration. He has not argued that he did so, but instead exercised his authority as declarant to deny approval.
Kimpel also asserts that McDonald acted inequitably in not meeting with Kimpel before denying permission to build the dock. However, the uncontradicted testimony from McDonald's deposition was that 'the last time I visited [Kimpel's] property . . . he told me to get off his f'ing property.' Against this backdrop, we have difficulty seeing how McDonald's conduct was inequitable.
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Judgment affirmed.
By the Court (Berry, Kafker & Mills, JJ.),