Opinion
19-P-1465
12-02-2020
ROBERTA J. TONSBERG v. MATTHEW D. LANZA, trustee, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Before us is a dispute between residents of a golf course community in Kingston. Both the plaintiff, Roberta J. Tonsberg, and the defendants (Lanzas) own properties that border the golf course. In 2017, the Lanzas began building a swimming pool on their property in knowing violation of a deed restriction. Litigation ensued. It was undisputed that the construction of the swimming pool violated the deed restriction. Instead, the question was whether Tonsberg could enforce the restriction. After trial, a Land Court judge issued an amended judgment in Tonsberg's favor. While the amended judgment did not require the Lanzas to remove the pool, it enjoined them from using the pool and provided certain presumptive penalties if they did so.
On appeal, the Lanzas argue that the judge erred in two respects. First, the Lanzas challenge the judge's finding that Tonsberg would receive "an actual and substantial benefit" from enforcing the restriction, a statutory prerequisite for her to have standing to enforce it. G. L. c. 184, § 30. Second, the Lanzas argue -- based on the same statute -- that even if Tonsberg had standing to enforce the restriction, the judge should have declined to enforce it because of various equitable considerations. In a cross appeal, Tonsberg argues that the judge erred in declining to order the pool removed. We affirm the amended judgment in its entirety, essentially for the same reasons explained by the judge in his thoughtful, twenty-six-page memorandum of decision.
Background. Even though most of the underlying facts were uncontested, the trial included four days of testimony (as well as a fifth day during which the judge took a view). The factual recitation that follows is largely drawn from the judge's findings, none of which has been shown to be clearly erroneous. Unresolved conflicting testimony is noted.
The parties' homes were built as part of "phase IV" of a large development known as Indian Pond Estates. The plan for phase IV showed a large lot -- which now contains an eighteen- hole, private golf course (and associated country club facilities) -- surrounded by 133 residential lots. The developer of Indian Pond Estates retained ownership and control of the golf course and country club. Numerous deed restrictions controlled the structures that could be built, or uses that could be undertaken, on the residential lots in phase IV. Those lots that bordered the golf course were subject to certain especially stringent restrictions. One restriction forbade both above-ground and in-ground pools there.
We use the term "the developer" as shorthand to refer to Frederick M. Tonsberg and the various corporate entities that he owned and operated. We pause to note that Frederick M. Tonsberg is the father of Frederick W. Tonsberg, who is married to plaintiff Roberta J. Tonsberg. The trial testimony suggests that the various Tonsbergs may not all be aligned, their familial ties notwithstanding.
In 2002, the Lanzas began living at Indian Pond Estates in a home the judge characterized as "luxurious." The back yard of the Lanzas' home directly abuts the golf course, "empt[ying] onto the fairway of the second hole." In 2015, they added a large and resplendent outdoor deck. In the spring of 2017, the Lanzas decided that their yard would not be complete unless it had an in-ground pool. The restrictive covenant flatly prohibiting a pool there stood as a potential obstacle.
Aware of the prohibition on pools, the Lanzas sought relief from the developer, who, as noted, retained ownership and control of the golf course. The Lanzas met with the developer for hours to discuss the proposed pool. At trial, witnesses provided somewhat different accounts of this meeting. In any event, it is uncontested that the meeting did not result in the Lanzas' obtaining an exemption from the restriction. For a time, the Lanzas considered buying a nearby lot that was not adjacent to the golf course -- and hence was not subject to the prohibition on in-ground pools -- in order to build a pool there. That option became moot when Tonsberg's husband bought the lot.
We have no occasion to reach the question whether the developer on his own legally could provide the relief the Lanzas were seeking.
Resolute in their desire for a pool, the Lanzas decided to build one in open defiance of the restriction. When Tonsberg saw the pool being constructed, she swiftly filed the current action. Although a Land Court judge denied Tonsberg's motion for a preliminary injunction, he expressly warned the Lanzas that they were moving forward at their own peril.
At trial, the developer and various other witnesses testified to the interrelationship between the design of the golf course and of its surrounding lots. These integrated design elements and the accompanying restrictions served to promote what Tonsberg's lawyer characterized as a "country club aesthetic," and what the Lanzas' own expert witness -- a real estate broker -- termed a "country club lifestyle." Although such terms were never defined, the evidence unmistakably connotes that the developer was seeking to achieve an atmosphere of groomed pastoral affluence. Additional facts are reserved for later discussion.
Discussion. 1. The Lanzas' appeal. a. Standing. By statute, a plaintiff has standing to enforce a restrictive covenant only if she stands to gain an "actual and substantial benefit" from doing so. G. L. c. 184, § 30. The Lanzas concede that Tonsberg would enjoy an "actual" benefit from enforcing the no-pools restriction, as that term has been interpreted in the case law. See Garland v. Rosenshein, 420 Mass. 319, 321 (1995) ("actual" benefit is one that arises "from the existence and enforceability of the restriction"). The Lanzas challenge only the judge's finding that the benefit to Tonsberg would be "substantial."
As with standing issues generally, the extent to which Tonsberg has a personal stake in the outcome is "essentially" a question of fact. See Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011). The judge, who heard the trial evidence and took a view, found that Tonsberg would reap a substantial benefit from enforcement of the prohibition on pools. Our review of that finding is limited to whether it was clearly erroneous. See id.
Having reviewed the trial record, we conclude that the judge's finding of substantial benefit is supported by the evidence and therefore is not clearly erroneous. The judge credited Tonsberg's testimony that she could hear and was bothered by the sound of children playing in the pool, which substantiated that she would receive an appreciable direct benefit from enforcement of the restriction. The judge also found that Tonsberg, and other similarly situated property owners, would receive a benefit from preserving phase IV's "cachet as a golf-course community." As the judge put it, "the [n]o [p]ools [r]estriction continues to provide some benefit to all of the parcels that are subject to the restriction: it protects the golf course, which in turn enhances the surrounding golf-course community." Finally, we disagree with the Lanzas' argument that Tonsberg's fear that their flouting of the no-pools restriction could lead others to violate it rests on mere speculation. There was ample evidence that other owners of golf course-adjacent lots had expressed an interest in building a pool.
Tonsberg's acknowledgement of the difficulty of discerning which sounds came from the pool and which were generated by the Lanzas' other outdoor activities does not negate her claim that she was particularly adversely affected by the pool activities. In fact, she specifically testified to having to listen to the sounds related to the children's pool game known as Marco Polo (which she found distressing, not because of the noise, but because it brought back memories of her recently deceased son).
Unable to demonstrate that the finding of substantial benefit is clearly erroneous, the Lanzas offer three arguments on appeal that the finding is mortally infected by an error of law. We address each in turn.
First, seizing on testimony by the developer that the purpose of the no-pools restriction was "[t]o protect the integrity of the golf course," the Lanzas argue that only the owner of the golf course has standing to enforce it. This argument fails on the facts. The developer's full testimony makes clear his view that the restriction also served to protect the residents of the golf course lots, and the judge expressly found that the restriction had a dual purpose. Even if the goal of protecting residents against the disruption effected by pools was a secondary purpose, it was still a purpose.
Although the Lanzas do not draw the analogy, their argument is reminiscent of arguments by defendants in zoning cases that the alleged harm does not fall within the zone of interest that the relevant bylaw was enacted to protect. See, e.g., Kenner, 459 Mass. at 123-124.
Second, the Lanzas argue that the judge set the quantitative threshold as to what constituted a "substantial" benefit too low. They point to the following statement by the judge. "The substantial benefit requirement is a quantitative one: will the person seeking enforcement realize more than a trivial benefit if the restriction is enforced?" In support of this statement, the judge cited Blakeley v. Gorin, 365 Mass. 590, 603 (1974). The Lanzas maintain that the judge erred by equating "substantial" with "nontrivial." To the extent that the Lanzas argue that Blakeley does not necessarily equate a "substantial" benefit with any nontrivial benefit, we agree. Blakeley admits of some ambiguity on this point. See id. However, we do not view this issue as making any difference in the case before us. This is not a case where the judge found that the benefit that Tonsberg would reap from enforcement of the restriction was "substantial" only because it was "nontrivial." Moreover, the degree of benefit that Tonsberg would enjoy from enforcement of the restriction compares favorably with those found in other cases. See id. See also Connaughton v. Payne, 56 Mass. App. Ct. 652, 657 (2002). We decline to comment further on the abstract question whether a nontrivial benefit nevertheless could still be insubstantial.
The key sentence in Blakely stated that there was evidentiary support for "a finding that [a particular] effect would not be de minimis but would be substantial." Blakey, 365 Mass. at 603 Such phrasing does not necessarily mean that substantial begins where de minimis ends.
Finally, the Lanzas argue that the judge placed undue reliance on the fact that the no-pools restriction was adopted as part of a common scheme. We agree with the Lanzas insofar as they argue that the fact of the common scheme did not relieve Tonsberg from demonstrating that she would achieve a substantial benefit from enforcing the restriction. However, the existence of a common scheme remains a relevant consideration. See Gulf Oil Corp. v. Fall River Hous. Auth., 364 Mass. 492, 497-498, 500-501 (1974) (taking existence of common scheme into account in assessing whether enforcement of restriction would create substantial benefit). Put differently, the fact that parties bought into a social contract establishing reciprocal benefits and duties is a factor that provides some support for finding that each party has a stake in enforcing the terms to which they all agreed.
In sum, we conclude that the judge's finding that Tonsberg would reap a substantial benefit from enforcing the no-pools restriction is neither clearly erroneous, nor invalidated by legal error.
b. Equities. The governing statute recognizes that a judge is not required to enforce deed restrictions, even where a party has standing to do so, in certain situations. Set forth in the ungainly third sentence of G. L. c. 184, § 30, those statutory provisions are particularly complicated. For present purposes, it suffices to say that the statute gives a judge broad discretion to decline (or tailor) enforcement of a restriction if warranted by the equities or changed circumstances. See Blakeley, 365 Mass. at 603-607. See also 135 Wells Ave., LLC v. Housing Appeals Comm., 478 Mass. 346, 359-360 (2017). The parties that are the target of the enforcement action -- here, the Lanzas -- bear the burden of proving that such circumstances exist. See Cogliano v. Lyman, 370 Mass. 508, 512 (1976).
The Lanzas requested that the judge decline enforcement based on two theories. First, they argued that Tonsberg has "unclean hands" that made enforcement inequitable. Second and relatedly, they argued that changed circumstances rendered enforcement inappropriate. They primarily based this latter theory on the fact that as a result of the 2008 recession, the developer changed his original plans with regard to certain unbuilt lots in phase IV, and, pursuant to G. L. c. 40B, ended up building denser housing on those lots.
The judge rejected these two arguments largely on the facts. For example, he specifically found that the c. 40B units did not materially detract from the "country club aesthetic" of phase IV. The Lanzas have not shown the judge's findings on this subject to be clearly erroneous, Matthew Lanza's testimony to the effect that the neighborhood's aesthetics "all went right down the toilet" when the c. 40B projects were approved notwithstanding. To the extent that the judge's decision not to decline enforcement turned on matters of discretionary judgment (e.g., with regard to how to balance the equities), the Lanzas have not shown that the judge abused his discretion or otherwise acted at odds with the statute.
2. The cross appeal. Tonsberg challenges the remedy that the judge ordered. She contends that the judge, having found a knowing violation of the no-pools restriction, and given the absence of circumstances warranting enforcement forbearance, was required to order the removal of the pool. She further argues that the remedy the judge ordered is particularly odious in various respects. First, she claims it effectively allows the Lanzas to use the pool as they wish and to pay the stipulated amounts as a mere "cost of doing business." Second, she asserts that the remedy the judge chose leaves the parties in a perpetual state of conflict, while inappropriately placing the burden and costs of enforcement on her (with any penalties for noncompliance to go to the Commonwealth).
As the Lanzas point out, Tonsberg's premise that the judge limited enforcement to the payment of liquidated fines is not accurate. The judge expressly permanently enjoined the Lanzas from using their pool, and we read the judgment as retaining in the judge the full panoply of contempt of court sanctions. The Lanzas themselves concede that this is a proper reading, and they expressly acknowledged that such sanctions include the option of expanding the current injunction to require them to remove the pool. Thus, while the remedy the judge fashioned may lead to some further conflict, the availability of the sanction of a removal order should prevent a perpetual state of conflict, at least concerning the pool.
To the extent that Tonsberg argues that the judge was required to issue a tear-down order, we disagree. Indeed, even in the context of zoning violations -- which involve the enforcement of legislative enactments implementing the police power -- "[t]he case law recognizes that tear down orders do not necessarily follow every determination of a zoning violation, and that a court may consider equitable factors and the potential availability of money damages as an appropriate alternative remedy." Sheppard v. Zoning Bd. of Appeal of Boston, 81 Mass. App. Ct. 394, 405 (2012), and cases cited. By prohibiting the Lanzas from using their pool, the injunction that the judge ordered fully addressed the only direct impact that Tonsberg substantiated: noise from pool activities. The additional step of requiring the pool's removal would primarily address the pool's visual impacts, and Tonsberg expressly forswore reliance on such impacts.
We additionally note that although Tonsberg has standing to enforce the no-pools restriction, the fact that the developer -- the party with the primary interest in enforcement -- has stood on the sidelines has some relevance to the scope of the relief that a judge may deem appropriate. Cf. Sheppard, 81 Mass. App. Ct. at 405 (fact that zoning enforcement action was brought by private abutter, and not by public entity charged with enforcing zoning ordinance, is relevant to whether tear-down order should issue).
None of this is to say that we necessarily would have chosen the particular remedy that the judge crafted had we been the trial judge. However, the narrow question before us is whether he abused his discretion or otherwise committed legal error in doing so. In our view, he did not.
We deny Tonsberg's request for attorney's fees.
Amended judgment affirmed.
By the Court (Milkey, Blake & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 2, 2020.