Home MASSACHUSETTS PORT AUTHORITY v. PAUL BASILE

MISC 372073

March 12, 2009

SUFFOLK, ss.

Long, J.

JUDGMENT

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 Basile’s 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 Basile contends the restrictions are no longer in effect because they are more than thirty years old.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).

Both parties have cross-moved for summary judgment. For the reasons in the court’s Memorandum and Order on the Parties’ Cross-Motions for Summary Judgment of this date, as a matter of law, MassPort’s 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, MassPort’s motion for summary judgment is DENIED and Mr. Basile’s motion is ALLOWED. MassPort’s claims are thus dismissed in their entirety.

SO ORDERED.

By the court (Long, J.)

FOOTNOTES

[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.