At issue in this case is the current validity of development restrictions placed on two lots near Logan Airport that were divested by plaintiff Massachusetts Port Authority (MassPort) and deeded to defendant Paul Basiles predecessors in title in 1977. [Note 1] Those restrictions, the goals of which were to return the land back to members of the community, preserve open space, and reduce density, [Note 2] prohibit the construction or placement of any building of any kind on those lots, except a single one or two car garage, other small accessory structures not for habitation, and, if attached to dwelling houses on adjoining parcels, such porches, steps, terraces, bay windows and other structures as will not constitute habitable quarters in their own right. Joint Statement of Undisputed Facts at 1, ¶ 3; 5, 15 (May 30, 2008) (hereinafter, the Undisputed Facts). They do not contain any limitations on the number of buildings, lot coverage, height, bulk, setbacks or other dimensions or any requirement for open space in any amount.
Mr. Basile contends the restrictions are no longer in effect because they are more than thirty years old. G.L. c. 184, § 23. [Note 3] MassPort contends the restrictions, unlimited as to time on the face of the deeds, are exempt from that thirty-year limitation for three reasons: (1) they were implemented as part of a gift for a public purpose; (2) they are contained in a deed, grant or gift of the commonwealth within the meaning of G.L. c. 184, § 23; and (3) they have the benefit of [G.L. c. 184, § 32] (conservation, preservation, agricultural preservation, watershed preservation and affordable housing restrictions held by any governmental body or by a charitable corporation or trust whose purposes include those goals). Verified Complaint at 4, ¶ 18 (Feb. 18, 2008).
The material facts are undisputed and the parties have cross-moved for summary judgment. For the reasons discussed below, as a matter of law, MassPorts arguments fail. The restrictions at issue do not fall within any of the exemptions in G.L. c. 184, § 32 and are subject to its thirty-year limitation. Since the restrictions have now expired and may no longer be enforced, MassPorts motion for summary judgment is DENIED and Mr. Basiles motion is ALLOWED.
Summary judgment is appropriately entered when there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). Material facts are those that might affect the outcome of the suit under the governing law Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The following facts, either contained in the parties joint Statement of Undisputed Facts or appearing on the face of the documents referenced therein, are undisputed. [Note 4]
MassPort is a body politic and corporate organized and existing under Chapter 465 of the Acts of 1956, as amended, with an address at One Harborside Drive, Suite 200S, East Boston. Undisputed Facts at 1, ¶ 1; see also Opinion of the Justices, 334 Mass. 721 (1956). Its functions include the ownership and operation of the General Edward Lawrence Logan International Airport in East Boston (Logan Airport). St. 1956, c. 465, § 5.
Mr. Basile is the current owner of record of the land formerly known and numbered as 371 Maverick Street, East Boston (Parcel 1), and the land formerly known and numbered as 373 Maverick Street, East Boston (Parcel 2) the properties at issue in this case. Undisputed Facts at 1, ¶ 2.
The Divesture Program
MassPort had been the owner of Parcels 1 and 2 until it sold them in 1977 as part of a divestiture program. That program involved a number of residential properties in East Boston that were located near Logan Airport, but outside the airports boundary line. Id. at 2, ¶ 6. MassPort had acquired these properties over the previous decade for future airport expansion, . . . clear zone and other purposes, but, after conducting a master planning process of its current and projected operations, MassPort determined the properties were no longer needed. Id. at 2-3, ¶¶ 5-6. The goals of the divestiture program were to return the land back to members of the community, preserve open space, and reduce density. Id.at 1, ¶ 3.
When divesting properties, the MassPort Board required that [e]ach deed from the Authority shall contain such restrictions, easements or conditions, if any, as, in the opinion of the person executing, shall most reasonably protect the Authority from the assertion of claims of injury or liability respecting the property or its use and occupancy as may arise from the Authoritys operations of Logan International Airport. Id. at 4, ¶ 11 (quoting from the 1977 MassPort Vote at 12, ¶ 4)). In addition, a 1977 MassPort staff memorandum noted the following:
The Master Plan endorsed the retention of noise easements on these properties to preclude liability for noise damages in the future. Community representatives and prospective purchasers have raised no objection to the Authoritys retention of use restrictions or easements as reasonable and appropriate protection. The divestiture therefore will not be hindered by the prospect of adverse financial consequences for the Authority resulting from a return of these properties to private use.
The restrictions and noise easements will have to be tailored to the individual geographic locations of the properties. For example, in Jeffries Point, overflight rights are not necessary as there is no foreseeable airport configuration which would place any active approach or take-off paths over those lots. On the other hand in this same area a reservation must be made to protect the Authority from claims growing out of ground noise and other environmental impositions from ground and flight operations.
Use restrictions are contemplated for the vacant lots in order to preserve their existing non-residential character. Most of these lots are, in any case, of non-buildable size under current zoning regulations. Such restrictions on use are desired by the East [Boston] Land Use Council to help preserve for the neighborhoods the general benefits of open space, light and air. These restrictions will also benefit the airport by discouraging increased residential densities in neighborhoods where there will always be some level of incompatibility between the airport and residential uses.
Id. at 4-5, ¶ 12 (quoting 1977 Staff Memorandum at 3, 4 and 5).
As part of the divesture program, those interest[ed] in purchasing the vacant lots were informed by MassPort of the sales price based on the MassPort appraisals, the priority [status] given to abutting landowners, and that the lots may be used for side yards, vegetable gardens, off-street parking and other open space uses. Id. at 5, ¶ 13. A 1977 appraisal conducted by Minot, DeBlois & Maddison, Inc. indicat[ed] a vacant land value for land in Jeffries Point, including Parcel 1 and Parcel 2, of $0.12 per square foot, assuming that development restrictions would be imposed preventing future development. Id. at 3, ¶ 8.
The Deeds and Development Restrictions
In 1977, MassPort conveyed Parcels 1 and 2, containing 2,000 square feet each, for consideration of $240. Parcel 1 was conveyed to Mr. Basiles predecessor-in-interest, Maria Annese. Deed from MassPort to Maria Annese (Sept. 8, 1977), recorded in the Suffolk County Registry of Deeds in Book 8984, Page 280 (Verified Complaint, Ex. A) (the Annese Deed). [Note 5] Parcel 2 was conveyed to Mr. Basiles predecessors-in-interest, Walter and Lucy Jameson. Deed from MassPort to Walter J. and Lucy A. Jameson (Sept. 8, 1977), recorded in the Suffolk County Registry of Deeds in Book 8984, Page 54 (Verified Complaint, Ex. C) (the Jameson Deed). [Note 6]
Both the Annese and Jameson Deeds included the following language (hereinafter, the Development Restrictions): No building of any kind shall be constructed or placed upon the premises; except a single one or two car garage, other small accessory structures not for habitation, and, if attached to dwelling houses on adjoining parcels, such porches, steps, terraces, bay windows and other structures as will not constitute habitable quarters in their own right.
The foregoing restrictions shall be considered as covenants running with the land and shall bind the grantees, their heirs, executors, and administrators, and all future assigns of said premises, or any part or parts thereof.
Enforcement of the covenants and restrictions shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenants either to restrain violation or to recover damages.
Annese Deed; Jameson Deed; Undisputed Facts at 5-6, ¶ 15. These Development Restrictions are unlimited as to time and are not part of a common scheme applicable to four or more contiguous parcels. Undisputed Facts at 6, ¶¶ 21-22. In addition, despite the indication in both the Master Plan and the 1977 Staff Memorandum that noise easements would be acquired on divested parcels, the Development Restrictions do not include such easements. At no point were the Development Restrictions in the Annese Deed or the Jameson Deed approved by the Secretary of Energy and Environmental Affairs pursuant to [G.L.] c. 184, § 32. Id. at 7, ¶ 24.
In 2007, Mr. Basile acquired both Parcel 1 and Parcel 2 for consideration of $60,000 and $85,000, respectively. Deed from Thomas J. Fitzgerald, Trustee to Paul Basile (Aug. 7, 2007), recording in the Suffolk County Registry of Deeds in Book 42282, Page 54 (Verified Complaint, Ex. B); Deed from Robert J. Jameson to Paul Basile (Aug. 3, 2007), recorded in the Suffolk County Registry of Deeds in Book 42282, Page 56 (Verified Complaint, Ex. D). The Development Restrictions neither appear nor are referenced on the face of the two deeds.
G.L. c. 184, § 23 provides that [c]onditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed . . . creating them . . . unless the restrictions fall within four exceptions. MassPort contends that the Development Restrictions fall within three of those exceptions because (1) [they] were implemented as part of a gift for a public purpose; (2) [they] are contained in a deed, grant or gift of the Commonwealth within the meaning of G.L. c. 184, § 23; and/or (3) they have the benefit of [G.L. c. 184, § 32] because they are conservation restrictions. Verified Complaint at 4, ¶ 18. I disagree.
The Restrictions Were Not a Gift for a Public Purpose
Contrary to MassPorts argument, the Development Restrictions were not a gift for a public purpose. A gift is a thing given willingly to someone without payment; a present, Concise Oxford Dictionary at 587 (10th ed. 1999); something bestowed voluntarily and without compensation, American Heritage College Dictionary at 585 (4th ed. 2002). Public purposes are those intended to benefit the public generally. Clearly the deeds and restrictions at issue were neither.
First, the conveyances of Parcels 1 and 2 were not gifts. They were sales of property to private citizens for adequate consideration. [Note 7] The price was set to reflect the value of the parcels burdened by the restrictions as determined by an appraisal. The parties involved in the transactions all received what they bargained for and the conveyances thus could not be considered a gift.
Second, the deeds were not made for a public purpose, but rather for MassPorts own benefit. The parcels were land MassPort no longer needed. It had no desire for any further property management responsibilities in connection with those parcels, Undisputed Facts at 3, ¶ 6, or the risk of liabilities arising from their ownership. But, MassPort wanted to sell the parcels in a way that would minimize the likelihood of future claims against it arising from its nearby airport operations. It thus imposed restrictions that only prohibited structures that independently could be inhabited, thus discouraging increased residential densities in neighborhoods where there will always be some level of incompatibility between the airport and residential uses. Id. at 5, ¶ 12. While the restrictions might result in increased off-street parking, fewer and smaller buildings, and less lot coverage, these were clearly incidental benefits since the restrictions required none of them. Indeed, the entire lot could be developed with a garage or other accessory structures while still complying with the Development Restrictions.
For these two reasons, the gift for public purpose exception from the thirty-year limitation in G. L. c. 184, § 23 does not apply.
MassPort is Not the Commonwealth for Purposes of G.L. c. 184, § 23
MassPort candidly admits that it is indisputably an entity that is separate and apart from the commonwealth. Massachusetts Port Authoritys Memorandum in Support of Its Motion for Summary Judgment at 11 (June 6, 2008) (hereinafter, the MassPort Summary Judgment Memo). It can hardly do otherwise. See Opinion of the Justices, 334 Mass. at 734 (It seems therefore that the Authority must constitute an entity in itself and must have an existence apart and distinct from that of the Commonwealth). But it nonetheless argues that it falls within G.L. c. 184, § 23s definition of the Commonwealth. In support of this contention, MassPort cites its enabling act and asserts that it acts as an arm of the state in carrying out its official functions. [Note 8] MassPort Summary Judgment Memo at 11. It then argues that the Commonwealth, as it appears in G.L. c. 184, § 23, should be deemed to include MassPort because MassPort did not exist in 1887 (when G.L. c. 184, § 23 was first enacted) and the types of functions it performs are governmental in nature and were carried out by the Commonwealth at that time. Id. at 11-12. It is an interesting argument, but not a convincing one.
First, MassPort performs functions, and performs them in ways, that were never contemplated in 1887. In the nineteenth century, all such functions, including both the acquisition and operation of land for trade and transportation-related purposes and its sale when deemed no longer necessary for those purposes, were under the direct authority of the executive branch and the budgetary authority of the legislature. The notion of an independent authority, outside the normal checks and balances of the traditional branches of state government, with independent powers to acquire, hold, divest, borrow, charge and spend is distinctly modern. Indeed, this difference is likely the reason the legislature sought the Supreme Judicial Courts advisory opinion in connection with its deliberations over MassPorts enabling act. Opinion of the Justices, 334 Mass. 721 (1956). Thus, the Commonwealth, as that title was used in 1887, cannot be equated with the broad range of governmental entities that exist today.
Second, and more importantly, the legislature has amended G.L. c. 184, § 23 since MassPorts creation and has not changed the reference to the Commonwealth. St. 1969, c. 666, § 1 (Aug. 11, 1969). Rather, the amendment added a new sentence, cross-referencing a new statutory provision (G.L. c. 184, § 32), which specifically addresses restrictions imposed by governmental bod[ies] a far broader category than the Commonwealth and one that certainly encompasses MassPort. Tellingly, restrictions imposed by governmental bodies are exempt from G.L. c. 184, § 23s thirty-year time limitation only if they are for purposes of conservation, preservation, agricultural preservation, watershed preservation or affordable housing. G.L. c. 184, §§ 23, 32.
A statute is to be interpreted according to its [plain] wording . . . [so long as its] application would not lead to an absurd result. Marthas Vineyard Land Bank Commn v. Bd. of Assessors of West Tisbury, 62 Mass. App. Ct. 25 , 27-28 (2004) (internal citations and quotations omitted, alteration in original). Words and phrases shall be construed according to the common and approved usage of the language, i.e., as they are commonly understood. G.L. c. 4, § 6 (third); see also Pyle v. School Comm. of S. Hadley, 423 Mass. 283 , 286 (1996). For assistance with interpretation, we may utilize other statutes relating to the same matter as the statute being construed, and we may examine the general statutory framework in which the statute in question is located. Commonwealth v. McDowell, 62 Mass. App. Ct. 15 , 20 (2004) (internal citations omitted). Application of these principles all lead to the same conclusion. The legislature clearly sees the Commonwealth and governmental bodies as different categories. What the Commonwealth can do broadly, governmental bodies may only do more narrowly. The Commonwealth means exactly that in G.L. c. 184, § 23 (the Commonwealth itself) and does not include MassPort (a separate and distinct governmental body).
The Development Restrictions Are Not Conservation Restrictions
MassPorts final argument, and the one upon which it most heavily relies, is that the Development Restrictions are conservation restrictions within the meaning of G.L. c. 184, § 32 and thus are exempt from the thirty-year limitation in G.L. c. 184, § 23. Conservation restrictions are defined in G.L. c. 184, § 31 as follows:
A conservation restriction means a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will, or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, to permit public recreational use, or to forbid or limit any or all (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials, (c) removal or destruction of trees, shrubs or other vegetation, (d) excavation, dredging or removal of loan, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface, (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition, (f) activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or (g) other acts or uses detrimental to such retention of land or water areas.
MassPort contends that [t]he Development Restrictions at issue here which limit the construction of buildings on the two lots they cover fit squarely within the definition of conservation restriction. MassPort Summary Judgment Memo at 9. I disagree. Surely not every limitation on construction, regardless of scope or context, is a conservation restriction. Such a reading would lead to an absurd result. [Note 9] Marthas Vineyard Land Bank Commn, 62 Mass. App. Ct. at 27-28. A proper interpretation requires a reading of that phrase in the context of the entire statutory provision (i.e., it must be faithful to the purpose and construction of the statute as a whole to give effect to the intent of the Legislature as ascertained from the ordinary use of the language employed, the reasons for the enactment, and the main object to be accomplished. Commonwealth, 62 Mass. App. Ct. at 20, 21
The language of G.L. c. 184, § 31, read as a whole, shows that the goal of that statute is the retention of land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, by allowing the prohibition of acts or uses detrimental to such retention of land or water areas. G.L. c. 184, § 31 (1st para) (emphasis added). This is made clear by the structure of the relevant paragraph (the definition of conservation restriction). It begins by describing conservation restrictions as those appropriate to retaining land or water areas predominantly in their natural, scenic or open condition . . . . Id. It then lists specific examples in subsections (a) through (f). MassPort cites subsection (a), which forbid[s] or limit[s] any or all (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground . . . and argues that that provision should be read broadly to include the Development Restrictions. But (g) makes plain that (a) (f) must be read in light of the paragraphs opening clause cited above a right . . . appropriate to retaining land or water areas predominantly in their natural, scenic or open condition . . . when it states or (g) other acts or uses detrimental to such retention of land or water areas. Id. (emphasis added). In short, not just any building restriction is a conservation restriction. That would lead to an absurd result. Marthas Vineyard Land Bank Commn, 62 Mass. App. Ct. at 27-28. It must be one appropriate to retaining land or water areas predominantly in their natural, scenic or open conditions . . . . [Note 10] Id.
So viewed, MassPorts Development Restrictions allowing garages, accessory structures, and additions to dwellings on adjoining dwellings so long as they would not constitute habitable quarters in their own right, with no limitation on lot coverage, height, bulk or setbacks and no requirement for the preservation of any open space or vegetation are not conservation restrictions at all. They may prevent the increase of population density (and such was clearly their purpose), but that is not conservation within the meaning of the statute. Since the Development Restrictions are not conservation restrictions within the scope of G. L. c. 184, § 32, they are not exempted from the thirty-year limitation in G. L. c. 184, § 23. [Note 11]
For the foregoing reasons, the Development Restrictions are currently of no force or effect and may not be enforced by MassPort. Judgment shall enter accordingly.
By the court (Long, J)
[Note 1] The first property is located at 371 Maverick Street in East Boston, and the second at 373 Maverick Street. Joint Statement of Undisputed Facts at 1, ¶ 2 (May 30, 2008) (hereinafter, the Undisputed Facts).
[Note 2] In a 1977 Staff Memorandum, MassPort also noted that [t]hese restrictions against development will also benefit the airport by discouraging increased residential densities in neighborhoods where there will always be some level of incompatibility between the airport and residential uses. Id. at 5, ¶ 12.
[Note 3] Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes. This section shall not apply to conditions or restrictions existing on July sixteenth, eighteen hundred and eighty seven [the date the statute was first enacted], to those contained in a deed, grant or gift of the commonwealth, or to those having the benefit of [G.L. c. 184] section thirty-two [conservation, preservation, agricultural preservation, watershed preservation and affordable housing restrictions held by any governmental body or by a charitable corporation or trust whose purposes include those goals]. G.L. c. 184, § 23.
[Note 4] Mr. Basile sought to include an additional document in the summary judgment record a memorandum drafted by Lori Sullivan (represented to have been a non-lawyer summer intern) to MassPorts then-Chief Legal Counsel, Douglas MacDonald regarding the then-under consideration Development Restrictions, which discussed them as if they were subject to the thirty-year time limitation in G.L. c. 184, § 23. I disregard and strike the memorandum for three reasons. First, it is hearsay. Second, it is irrelevant since it was never adopted or referenced by MassPort in any of its votes or decisions (and thus cannot fairly be seen as reflecting MassPorts intent in any way). Third, on the point for which it is cited, it reflects solely a legal conclusion which is ultimately for this court to decide. I would thus not give Ms. Sullivans opinions on this issue any evidentiary weight even were she a fully qualified lawyer giving her opinion as a witness at trial.
[Note 5] According to the deed, Ms. Annese was a resident of Brookline.
[Note 6] According to the deed, the Jamesons were residents of East Boston. Their address on that deed (375 Maverick Street) indicates that they were the owners of the abutting property.
[Note 7] The parties have not contested the appraisal and adequacy of consideration.
[Note 8] The enabling statute states that MassPort is hereby constituted a public instrumentality and the exercise by [MassPort] of the powers conferred by this act shall be deemed and held to be the performance of an essential governmental function. St. 1956, c. 465, § 2.
[Note 9] MassPorts interpretation, for example, would make a covenant restricting construction to parking decks or fifty-story skyscrapers a conservation restriction since it would be a limit.
[Note 10] The two cases cited by MassPort Parkinson v. Bd. of Assessors of Medfield, 398 Mass. 112 (1986) and Wolfe v. Gormally, 2006 WL 3246467 (Mass. Land Ct.) involve precisely such restrictions, in stark contrast to the situation here. The restriction in Parkinson involved eighty-two acres of land, allowed only the existing single-family home with garage and barn to remain, and prohibited the construction of all other buildings or structures and the cutting, removing or destroying of trees. The restriction in Wolfe precluded the building of structures within 100 feet of wetlands and the disturbance of wetland boundaries.
[Note 11] This ruling moots the other two questions addressed by the parties, (1) whether the Development Restrictions are exempt from the carry-forward filing requirements of G. L. c. 184, §§ 26-30, and (2) whether they needed the approval of the Secretary of Energy and Environmental Affairs.