This action primarily concerns the interpretation to be given certain language appearing in a deed dated December 15, 1975 from Lloyd L. Parker (Parker) to the Inhabitants of the Town of Stow, Massachusetts. For a consideration of $230,000.00, Parker conveyed an area of approximately thirty-one acres known as Pine Bluff (Parker Property / Locus), subject however, to the following language (Language):
Said land is conveyed subject to the restriction that a one hundred (100) foot buffer zone, as measured at the perimeters of the property conveyed as bound by the lands of others and Sudbury Road, expressly excepting the lake frontage on Lake Boon from any such restriction, to be kept in a natural state except as changes, modifications, alterations, construction, additions or any other actions may be necessary, required or beneficial in the judgment of the Town for access and egress for any purpose, including but not limited to maintenance and construction of ways and any or all utility easements for the intended use for recreational, playground and swimming facilities.
Plaintiffs, who own parcels abutting the Parker Property, [Note 1] initiated this lawsuit on May 8, 2007 [Note 2] by naming the members of the Stow Board of Selectmen as the Defendants (Board / Defendants) herein. The Plaintiffs sought, pursuant to G.L. c. 240, s.10A, [Note 3] to enforce a restriction on real property. Perhaps more critically, the Plaintiffs seek declaratory relief. [Note 4] To this end, they ask the court to determine, inter alia, that the language in the [Parker] Deed creates a conservation restriction pursuant to G. L. c. 184, s. 31; that the twenty-one acre undeveloped portion of the Parker Property is to remain in its natural state and to be used for no more than passive recreational purposes; [Note 5] that the installation by the Town in 1994 of soccer fields and an appurtenant parking area was a violation of a public trust, which they argue was set forth in the Parker Deed and in an Order of Taking by the Town (Order). [Note 6]
For its part, by means of the instant Motion for Summary Judgment (Motion), the Defendants seek, inter alia, declarations that:
(1) The restriction contained in the Parker Deed has expired pursuant to G.L. c. 184, s. 23; [Note 7]
(2) No conservation restriction was created under the Parker Deed; [Note 8]
(3) No public trust or public charitable trust was created under the said Deed;
(4) The Town was not in violation of the Deed when it constructed a parking lot and soccer fields on the locus;
(5) With the exception of the buffer zone referenced in the Deed, the Locus need not remain in a natural state;
(6) With the exception of the buffer zone, the Deed does not prohibit the construction of athletic fields or parking lots at the Locus; and that except for the buffer zone, the Town may construct athletic facilities, as well as appurtenant or incidental parking lots and structures, on any portion of the Locus;
(7) With the exception of the buffer zone, the Deed does not prohibit the cutting of trees, demolition, construction and alteration on any portion of the Locus;
(8) Within the buffer zone, the Town my effect any changes, alterations, construction, additions or other actions need or required for access and egress including maintenance or construction of ways and any utility easements for the intended use for recreational, playground and swimming facilities.
In their Memorandum in Opposition to Defendants Motion for Summary Judgment (Plaintiffs Memorandum), the Plaintiffs pose the following questions:
(a) Whether the grantor created a conservation restriction that complies with the statutory requirement;
(b) Whether the grantor created a restriction that expired within thirty years because it does not fall within one of the exceptions to G.L. c. 184, § 23;
(c) Whether the correct interpretation of the Parker Deed restricts use of the one hundred foot buffer zone to passive recreational use only;
(d) Whether the correct interpretation of the Parker Deed restricts the use of the entire property to passive recreational use only.
For the reasons that follow, I conclude that the Parker Deed served as the basis of a public trust for the benefit of the Inhabitants of the Town of Stow, and that, with the exception of the buffer zone, the recreational uses thereunder are not limited to those of a purely passive nature.
By Deed (Parker Deed) dated December 15, 1975 and recorded on December 18, 1975 with the Middlesex South District Registry of Deeds (Registry) at Book 12910, Page 496, Lloyd L. Parker (Parker) conveyed the subject property to the Inhabitants of the Town of Stow for $230, 000.00. The conveyance included [t]he land with the buildings and improvements thereon, situated on the Southwesterly side of Sudbury Road in Stow [Note 9] and bounded Westerly by Lake Boon by four distances, 335 feet, 326 feet, 10 feet and 922 feet respectively . This conveyance was expressly made subject to the Language quoted above. [Note 10]
While the Language in question derives from a single lengthy sentence, this court is of the view that it will admit of but a single cogent meaning, i.e. one that is fully consistent with the intent of the Grantor and other relevant parties.
Consequently, this court construes the Language at issue, as follows:
(a) The intended use of the Locus, as conveyed to the Inhabitants of the Town of Stow, was for recreational, playground and swimming facilities.
(b) The Locus was conveyed subject to the express restriction or condition that there is to be a one hundred foot buffer zone that is to be maintained in its natural state.
(c) There are two exceptions to the requirement that the buffer zone be maintained in its natural state:
(1) The first expressly exempts from the restriction that portion of the Locus fronting on Lake Boon.
(2) The second permits changes, modifications, alterations, construction, additions or any other actions with regard to the buffer zone, as may be necessary, required or beneficial in the judgment of the Town for access or egress for any purpose, including but not limited to maintenance or construction of ways and any or all utility easements [necessary] for the intended use of the whole, such use being for recreational, playground and swimming purposes. (emphasis added)
The foregoing construction gains support from a near contemporaneous [Confirmatory] Order of Taking (Order) dated December 16, 1975 and recorded with the Registry on December 18, 1975 at Book 12910, Page 498. On December 16th, it was voted [Note 11] that the land described in Article 2 [of a Special Town Meeting [Note 12] Warrant] [Note 13] be purchased or [in the alternative] taken by eminent domain for a Town swimming and recreational area, to include a public playground, and other recreational facilities and to conduct and promote recreation, play, sport and physical education thereon . (emphasis added)
The Order of Taking continued as follows:
[I]n accordance with said vote under Article 2 the Town has proceeded to purchase said land and to pay therefore the sum appropriated for such purpose [Note 14]
Now Therefore, the Selectmen and Recreation Commission of said Town of Stow, desiring to make a confirmatory taking Do Hereby Take In Fee, free from all easements, proposed streets or rights of way, privileges and appurtenances existing with the land here described (emphasis added)
There follows a description of the Locus which tracks that appearing in the Parker Deed, accompanied by the above quoted Language.
Summary Judgment Standard
Summary judgment is appropriate when pleadings, depositions, answers to interrogatories, and responses to requests for admission together with affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy as to material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.) ( Long, J.), citing, e.g., Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993).
To meet its burden, the moving party is not required to submit affidavits or other similar materials negating the opponents claim. Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323. The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving partys case. Kourouvacilis, 410 Mass. at 711, citing Celotex Corp., 477 U.S. at 322. Thus, regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the court demonstrates that the standard for the entry of summary judgment is satisfied. Kourouvacilis, 410 Mass. at 713, quoting Celotex Corp., 477 U.S. at 323-324. [Note 15]
A corollary to the moving partys burden is that the court is to make all logically permissible inferences from the facts in the non-moving partys favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, the right of a party facing summary decision to have the facts viewed in a favorable light, does not entitle that party to a favorable decision and reliance upon mere bald conclusions is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).
The possibility that the non-movant could elicit material evidence on cross-examination of witnesses is not grounds for denying summary judgment. Thompson v. Commonwealth, 386 Mass. 811 (1982). Once the moving party has met its burden, to withstand summary judgment the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988), citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985). In determining whether a factual dispute is genuine, the Court must determine whether the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving party. Steffen v. Viking, 441 F.Supp.2d 245, 250 (2006), citing, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The function of the court, at summary judgment, is not to determine the credibility of witnesses or weigh the evidence. Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987). However, Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, or resolution of the matter depends solely upon judicial determination of a question of law.
The record before the court reflects no genuine factual dispute, material under the relevant law, which would preclude a legal determination as to whether the Town of Stow holds the Parker Property subject to restriction, and if so, the nature and scope of such restriction(s). Consequently, the case is ripe for summary judgment.
In proceeding with its analysis, this court has determined that two decisions of the Supreme Judicial Court are instructive. The first case, that of Nickols v. Commissioners of Middlesex County, 341 Mass. 13 (1960), concerned gifts of land on the shores of Walden Pond in Concord, Massachusetts. In Nickols, by deeds recorded June 9, 1922, several parties donated land to the Commonwealth which constituted substantially all the shores of Walden Pond. The deeds in question contained language indicating that:
[the] parcels are subject to the restriction and condition that no part of the premises shall be used for games, athletic contests, racing, baseball, football, motion pictures, dancing, camping, hunting, trapping, shooting, making fires in the open, shows or other amusements such as are often maintained at or near Revere Beach and other similar resorts, it being the sole and exclusive purpose of this conveyance to aid the commonwealth in preserving the Walden of Emerson and Thoreau, its shores and nearby woodlands for the public who wish to enjoy the pond, the woods and nature, including bathing, boating, fishing and picnicking. [Note 16] (emphasis added)
In 1957, a lawsuit was filed seeking a writ of mandamus compelling the defendants to observe the terms of the deeds, and to refrain from conduct violative of those terms.
The defendant commissioners contended that the statement of purpose in the deeds was not a restriction, condition, trust, obligation or burden with respect to the granted property. They argued further that the purpose of such language was not to preserve the pond or nearby woodlands in their natural state.
The Court observed at the outset that [p]roperty conveyed to a governmental body for a particular public purpose may be subject to an enforceable public obligation or trust to use the property for those purposes. It cited Codman v. Crocker, 203 Mass. 146 , 150 (1909) for the proposition that where property is dedicated to a public use for a particular purpose, it cannot without the exercise of eminent domain , be [put] to a use of a different character, in disregard of the trust and the rights of the donors. [Note 17]
The Court continued:
[I]t is apparent that whether a gift, subject to a condition or stating a purpose, imposes a trust or obligation is a matter of interpretation of the particular instrument and determination of the particular donors intent. The intention of these grantors is to be ascertained from a study of the instrument[s] as a whole in the light of the circumstances attending [their] execution. Search should be made for a general plan designed to express a consistent and harmonious purpose . The facts relating to the gifts and their background are of great assistance in interpreting the deeds. [Note 18] (internal citations omitted) (emphasis added)
As to those specific restrictions and conditions appearing in the Nickols deeds which precluded the use of the premises for certain athletic and other activities, the Court had this to say:
The restriction and condition of the deed against certain sports, amusements, and other activities were appropriate methods of preserving the pond as nearly as possible in its state and accomplishing the sole and exclusive purpose. That purpose we construe not only as part of the condition to which it is attached, but also as defining the terms of a public trust or obligation .. A purpose defined as sole and exclusive was not merely precatory, but was what the donors said it was. [Note 19] (emphasis added)
Lastly, the Courts holding, together with its other conclusions, bear relevance to the case at hand:
We hold that the predominant obligation imposed by the deeds was the preservation of the pond area as closely as practicable in its state of natural beauty. Nevertheless, we do not forget that the deeds authorized bathing, boating, fishing, and picnicking. These words also must be given some significance and reconciled, so far as possible, with the donors dominant purpose. Although the principal concern of the donors was the preservation of the Walden of Emerson and Thoreau, they plainly did not intend Walden Pond to be only an outdoor museum . As we read the deeds, bathing, boating, fishing and picnicking may be encouraged and facilities for such uses and for the comfort, safety, and convenience of bathers, fishermen and other visitors, may be provided and improved, so long as the physical aspect, character, and appearance of the shores and woodland, as seen from the pond and its shores are not essentially changed, and there is no interference with the dominant objective. This interpretation permits necessary maintenance, policing, removal of fallen trees, planting of new trees, repair of erosion and damage by visitors, and carefully planned and placed, well concealed, inconspicuous construction of essential structures. On the other hand, this interpretation requires that the structures, roads, vehicles, and concessions shall not be placed on the shores and adjacent woodland area in a manner inconsistent with the donors primary purpose. This interpretation of the deeds gives appropriate significance to all of the words stating conditions and purposes of the conveyances and the obligations thereby imposed. [Note 20] (emphasis added)
The second noteworthy case is that of Cohen v. City of Lynn, 33 Mass. App. Ct. 271 (1992). It too concerned the public trust doctrine and the imposition of a trust upon a 17, 238 square foot parcel adjacent to Lynn Shore Drive in Lynn, Massachusetts. The plaintiffs claimed that the conveyance of the parcel to a private developer violated the terms of a public charitable trust which, they asserted, arose in 1893 when the land was acquired by the City of Lynn to be used forever for park purposes. [Note 21] The Court determined that despite the passage of many years, the parcel was still impressed with the trust that was first established in 1893.
The property in Cohen had been acquired by two deeds and conveyed to the City of Lynn to its own use and behoof forever for park purposes. The City argued that since the grantors had received substantial consideration for the land in 1893, the conveyance was not a gift and therefore no trust could be established. [Note 22]
The Court noted that of the $20,000.00 purchase price, $12,000.00 had been appropriated on condition that the remaining $8,000.00 was to be raised through public subscription. The Cohen decision continued:
The latter amount [the $8,000.00] was obtained from property owners and from certain public spirited citizens and included $1,500.00 donated by the grantors. We have found no authority, nor is any cited to us, to the effect that the receipt of substantial consideration prevents a grantor from conveying property to a municipality in such manner as to establish a public charitable trust. Generally, the creation of a trust may be supported by consideration in the sense that the beneficiary confers a benefit upon the settlor in order to obtain from him the creation of the trust. Moreover, the grantors monetary contribution in effect establishes that the conveyance, in part, was a gift. In any event, the record does not indicate that the payment to grantors represented fair market value. [Note 23] (emphasis added)
With the foregoing as a backdrop, this court turns to the issues raised by the Defendant in its Motion for Summary Judgment. Defendant seeks a declaration to the effect that no public trust was created under the Parker Deed, while the Plaintiffs argue that Parker intended to convey the Locus in the form of a public trust for the benefit of the public. [Note 24]
a. Public Trust Doctrine
We observed that in Nickols, supra, the restriction and condition set forth in the relevant deeds served to accomplish the underlying purpose of the public trust. For example, the Nickols Court viewed the restriction against certain sports, amusements and other activities as elements which served to define the terms of the public trust or obligation. [Note 25] In the case at hand, this court views words of restriction or condition, including the usage limitation, in a similar light. These words serve to accomplish the Grantors clear intention [Note 26] to preserve the Locus for public recreational purposes. Thus, the bulk of the property is to be preserved for active recreational use, while the buffer zone is to be preserved in its natural state, available for no more than passive recreational use.
We have seen that [p]roperty conveyed to a governmental body . . . for particular public purposes may be subject to an enforceable general public obligation or trust to use the property for those purposes. [Note 27] While public trusts may well be created through gifts of property, the grantors receipt of substantial consideration, does not prohibit the creation of a public trust. [Note 28] In Cohen, the Court noted that of the $20,000.00 acquisition price, the Town had appropriated 60% or $12,000.00 of its own funds, with the remaining sum of $8,000.00 being raised through public subscription. [Note 29] This latter amount included $1,500.00 donated by the grantors themselves. But for the specific amounts, these facts compare favorably to those in the case at bar.
Here, the purchase price was set at $230,000.00, an amount substantially less than the propertys $312,000.00 assessed value. Of the $230,000.00 total consideration, $200,000.00 [Note 30] was derived from a gift to the Town by an anonymous donor (Donor) on the express condition that it be used for the acquisition of the Parker Property. According to the Minutes of the Special Selectmens Meeting of June 12, 1975, [Note 31] the $200,000.00 gift was also contingent upon Mr. Parkers willingness to sell for $230, 000.00. To paraphrase the Cohen Court, there is no indication whatever, that the $230, 000.00 represented fair market value of the Locus. [Note 32] Indeed, these available facts, together with the reasonable inferences that may be drawn therefrom, suggest otherwise. [Note 33]
I conclude therefore, that the payment of substantial consideration for the Parker Property by the Town, does not constitute an impediment to the establishment of a public trust. In order to determine whether a conveyance of property has actually resulted in a public trust, the court should look to the particular instrument as well as the particular donors intent. Nickols, 341 Mass. at 19. The intent of the grantor should, in turn, be ascertained from a study of the instrument[s] as a whole in the light of the circumstances attending . . . [their] execution and a search for a general plan . . . designed to express a consistent and harmonious purpose. Id. (quoting Jewett v. Brown, 319 Mass. 243 , 248). If the Grantors intent was that the land be used for a particular purpose in perpetuity, it almost necessarily follows that he intended to establish a trust to effect this purpose. Salem v. Attorney General, 344 Mass. 626 , 630 (1962).
It is the view of this court that the documentary evidence appearing in the Summary Judgment record defines, in the aggregate, a general plan of the sort referenced by the Nickols Court. [Note 34] Moreover, such documentary evidence also provides a rich evidentiary base from which this court may further ascertain the intent of the Grantor.
As has been seen, the Parker Deed provided for an extensive one hundred foot buffer zone. [Note 35] That buffer is to be retained, with specified exceptions, in a relatively pristine or natural state. The remainder of the Locus is to be utilized for swimming, playground and recreation purposes. The Parker Deed contains an express, unambiguous declaration of intent to convey the Locus to the Town for such purposes. [Note 36] The circumstances surrounding the execution of the Parker Deed, which this court is free to consider, [Note 37] further support the argument that the Grantors declaration was more than mere precatory language. In Cohen, the Court relied, in part, upon an annual report of the Citys Park Commissioners in support of its conclusion that there was a general plan to create a public trust. Cohen, 33 Mass. App. Ct. at 277 (citing 1891 Report of the Lynn Park Commissioners to the effect that the owners were willing to sell land to the city if it were dedicated to public use). In the case at hand, the Plaintiffs have introduced Minutes from the Special Selectmens Meeting of June 12, 1975, undisputed by the Defendants, which indicate that both Parker and the Donor were concerned that the property be kept as strictly recreation and conservation. The Minutes recite as follows:
Mr. Parker will probably insert something into the sale agreement that it be used only for recreation and conservation. The Parkers do not wish to see the property become another Lake Walden and do not wish to tie the Towns hands, but they do wish it to be used for recreation-conservation exclusively. It was agreed at the end of the meeting that the Parkers were willing to sell to the Town under those terms .
Thereafter, on September 29, 1975, an Escrow Agreement [Note 38] was executed by the members of the Stow Board of Selectmen, and by the Donors agent. That Agreement provided in relevant part as follows:
[T]he Grantors [Note 39] intend to make a gift to the [Town] of $200,000 as a contribution toward the purchase of certain land for use as a town swimming and recreational area on Lake Boon in Stow, Massachusetts . The Grantors hereby pledge to donate to Grantee $200,000 as a contribution towards the purchase of the land for use by the Grantee as a town swimming and recreational facility. (emphasis added)
The Escrow Agreement provided further that the funds were to be paid over to the Town only in the event that certain conditions were fulfilled. Among them, that Grantee [Town] at a duly authorized special town meeting shall have validly adopted [a vote] to purchase or otherwise acquire the Land pursuant to Chapter 40, s 14, [Note 40] for use as a town swimming and recreational area. (emphasis added)
This documentary record [Note 41] discloses that Lloyd L. Parker, the Town of Stow [Note 42] and the anonymous Donor worked together on a carefully coordinated arrangement to convey the Parker Property for purposes that are clearly public in nature. The components of this plan permitted the Town to acquire the Locus with a minimum of taxpayer funding. In return, the Town contractually agreed that the Property would be used for those limited municipal purposes stipulated in the Parker Deed. By all indications, the parties understood and intended not only that that the Locus be put to a specific use, but that such use was to remain in perpetuity for the benefit of the Inhabitants of the Town of Stow, to whom the Locus was explicitly conveyed. There is nothing on the record that remotely suggests otherwise.
Moreover, the acceptance of the purchase money on the terms set forth by the Donor evinced a willingness and intent on the part of the Town to abide by the requirements [Note 43] enumerated in the Deed. Indeed, in the Order of Taking issued by the Town the day following the execution of the Parker Deed, the Town declared that the Locus was to be dedicated as a swimming and recreational area, to include a public playground, and other recreational facilities . . . and to conduct and promote recreation, play, sport, and physical education thereon . . . .
Based upon the Summary Judgment record and the relevant decisional law, I find that the conveyance of the Parker Property to the Town of Stow established a public trust with contractual obligations arising therefrom upon acceptance of the Deed by the Town. [Note 44] Moreover, the language in the Parker Deed together with surrounding circumstances amply demonstrate an unequivocal intent that the Parker Property be retained and used by the Town of Stow for the purposes enumerated therein. I conclude further that the acceptance of the Parker Deed by the Town of Stow constituted a contract between Parker and the Town which must be observed and enforced. [Note 45]
b. Additional Issues
Notwithstanding this courts determination regarding the existence of a public trust, significant questions remain as to the permissible use of the Locus under that trust. This court turns now to the specific issues raised by the Defendants in their Motion for Summary Judgment, to the extent such issues have not previously been addressed herein.
The Defendants first seek a declaration that the restriction referenced in the Parker Deed has expired pursuant to G.L. c. 184, § 23. However, this court has determined that such restriction constituted a condition of the public trust which had been established upon the Towns acceptance of the Parker Deed. [Note 46] Consequently, I conclude that any restriction or condition in the Parker Deed became part and parcel of the trust at the time of its formation, and is not therefore subject to expiration under § 23. [Note 47]
Defendants next seek a ruling that the Town was not in violation of the [Parker] Deed when [in 1994] it constructed a parking lot and soccer fields on the locus. Beyond that, the Defendants seek a declaration that would, with the exception of the buffer zone, permit the Town to construct athletic fields, parking lots and appurtenant structures on any portion of the locus. The Plaintiffs, for their part, argue that any recreational use at the Locus must be wholly passive in nature. [Note 48]
There is no language, however, either in the Parker Deed or in other relevant documents in the Summary Judgment record, that would in the view of this court, limit the Locus [Note 49] to purely passive uses. In this regard, the Order of Taking [Note 50] may be likened to the Commissioners Report relied upon by the Cohen Court. The Order of Taking comprises one of the circumstances that, in the aggregate, constitute a plan that is of assistance in ascertaining the Grantors purpose and intent. [Note 51] The so-called confirmatory Order of Taking [Note 52] is virtually contemporaneous with, and so is of value in construing the Parker Deed. At the same time, it provides useful insight into the parties understanding and intent. Thus, the Town wished to purchase or take the property for a municipal swimming and recreation area, to include a playground as well as other recreational facilities to conduct and promote recreation, play, sport and physical education. Given such language, one would be hard pressed to sustain an argument that athletic fields lie beyond the realm of permissible uses under the Parker Deed. Further, it is well to note that the Parker Deed provides that the buffer is to be kept predominantly in a natural state. If the Plaintiffs were correct that the Locus, as a whole, is to be maintained in a predominantly natural state, suitable for passive athletic uses at best, that fact would likely obviate the need for a buffer zone. Moreover, the Grantor indicated that he did not wish to see the property become another Lake Walden and [did] not wish to tie the Towns hands . [Note 53] This sentiment cuts heavily against the Plaintiffs argument that the use of the Locus was to be limited to passive recreational activities that would not affect the natural state of the land. This court explicitly finds that the public trust places no such constraints upon the recreational use of the Locus by the Town.
Predicated upon the foregoing, this court concludes as follows:
(1) A public trust was created by the Parker Deed for the benefit of the Inhabitants of the Town of Stow. Said trust limits the use of the property [Note 54] described therein to recreational purposes and facilities, including playground and swimming facilities, together with any incidental parking areas and structures. Any such facilities, appurtenant parking areas and structures, are to be reasonable in relation and scope to the said recreational uses;
(2) For the reasons set forth above, any restriction contained in the Parker Deed is neither subject to, nor has it expired pursuant to M.G.L. c.184, s. 23;
(3) No conservation restriction was created by the Parker Deed; [Note 55]
(4) Within the buffer zone, the said public trust does not prohibit changes, modifications, alterations, construction, additions or any other actions that may be necessary, required, or beneficial in the judgment of the Town, for access and egress for any purpose, including but not limited to maintenance or construction of ways and any or all utility easements, but only however, in furtherance of the recreational, playground and swimming purposes that are permitted pursuant to the public trust;
(5) Beyond the buffer zone, the Town may take such reasonable measures as necessary for the implementation of the recreational, playground and swimming uses permitted pursuant to the public trust. Such measures may include the cutting of trees to the extent required, as well as the construction, alteration or replacement of appropriate facilities.
(6) With the exception of the buffer zone, [Note 56] the said public trust does not limit recreational activity to that of a purely passive nature or that which is incidental to swimming;
(7) With the exception of the buffer zone, it is not necessary that the Locus be maintained in its natural state;
(8) The Town did not violate the Parker Deed or the resultant public trust by previously constructing soccer fields and an appurtenant parking lot on the property;
(9) With the exception of the buffer zone, and in furtherance of the recreational uses permitted under the public trust, the Town is not precluded from constructing athletic fields, together with appurtenant or incidental parking lots and structures, on the Locus. [Note 57]
In view of the foregoing, it is hereby
ORDERED that Defendants Motion for Summary Judgment be, and hereby is, ALLOWED IN PART, and DENIED IN PART.
Judgment to issue accordingly.
By the Court (Grossman, J.)
[Note 1] The Parker Property, in turn, abuts Lake Boon.
[Note 2] A First Amended Complaint was filed on June 1, 2007.
[Note 3] G.L. c. 240, § 10A: The land court shall have jurisdiction of a civil action by any person or persons claiming a an estate of freehold, or an unexpired term of not less than ten years, in land subject to a restriction described in [c.184, § 26], to determine and declare whether and in what manner and to what extent and for the benefit of what land the restriction is then enforceable, whether or not a violation has occurred or is threatened.
[Note 4] See Plaintiffs First Amended Verified Complaint, ¶ 105: A declaration of the parties rights and interest in the Pine Bluff property will resolve the entire conflict.
[Note 5] Plaintiffs also seek a reformation of the Parker Deed by stating that all recreational use be strictly passive in nature . Additionally, they seek declarations that the Parker Property is not to be converted into an athletic complex, and that no further athletic fields are to be constructed thereon.
[Note 6] On December 16, 1975, the Town of Stow, through its Board of Selectmen and Recreation Commission executed a document styled Order of Taking with regard to the Parker Property. It included the Language recited in the Parker Deed.
[Note 7] G.L. c. 184, § 23: Conditions or restrictions, unlimited as to time, by which title or use of real property is affected, shall be limited to a term of thirty years after the date of the deed or other instrument creating them, except in the case of gifts or devises for public, charitable or religious purposes. This section shall not apply to conditions or restrictions having the benefit of section thirty-two [of chapter 184].
[Note 8] See G.L. c. 184, §§ 31: A conservation restriction means a right whether or not stated in the form of a restriction, easement, covenant or condition, in any deed 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 to permit public recreational use, or to forbid or limit any or all construction or placing of buildings, roads, signs utilities or other structures on or above the ground . (emphasis added)
See also, G.L. c. 184, § 32: No conservation restriction... as defined in section thirty-one, held by any governmental body or by a charitable corporation or trust whose purposes include conservation of land or water areas shall be unenforceable on account of lack of privity of estate or contract or lack of benefit to particular land on account of the benefit being assignable or being assigned to any other governmental body or to any charitable corporation or trust having received the right to enforce the restriction by assignment, provided in the case of a restriction held by a city or town or a commission, authority or other instrumentality thereof it is approved by the secretary of environmental affairs ..
[Note 9] As shown as Lots 1,2,3 and 4 on a plan of land entitled Plan of land Stow, Mass., owned by Emma M. Scott et al, Survey by Clyde R. Wheeler, Inc., Bolton, Mass., dated January 5, 1975, revised August 25, 1975, which plan is to be recorded herewith .
[Note 10] See supra, pp. 1-2.
[Note 11] The Order of Taking was adopted by vote of both the Board of Selectmen and the Recreation Commission of the Town of Stow, on December 16, 1975.
[Note 12] The Special Town Meeting was held on November 10, 1975.
[Note 13] Described as approximately thirty-one (31) acres of land, more or less, bounded generally by Lake Boon and Sudbury Road in Stow . Article 3 of the Special Town Meeting Warrant established a $12,000.00 fund for purposes of developing the Lake Boon swimming and recreational land .
[Note 14] The $230,000.00 expended by the Town for acquisition was derived in large measure from a gift of $200,000.00 to the Town for the purchase or taking thereof.
[Note 15] One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purposes. Kourouvacilis, 410 Mass. at 713, citing Celotex Corp., 477 U.S. at 323-324.
[Note 16] Nickols, 341 Mass. at 15.
[Note 17] Nickols, 341 Mass. at 19.
[Note 18] Id., pp. 19-20.
[Note 19] Id.
[Note 20] Id., pp. 23-24.
[Note 21] Cohen, 33 Mass. App. Ct. at 272.
[Note 22] Id., p. 276.
[Note 23] Id.
[Note 24] Plaintiffs Memorandum, p. 8-9.
[Note 25] Nickols, 341 Mass. at 23. The restriction and condition of the deed against certain sports, amusements and other activities were appropriate methods of preserving the pond in its then state and of accomplishing the sole and exclusive purpose. That purpose we construe not only as part of the condition to which it is attached, but also as defining the terms of [the] public trust or obligation
[Note 26] Indeed, the Grantor uses the phrase intended use.
[Note 27] Nickols, 341 Mass. at 18.
[Note 28] Consideration may be given to induce the grantor to create the public trust. Cohen, 33 Mass. App. Ct. at 276.
[Note 29] Cohen, 33 Mass. App. Ct at 276.
[Note 30] An amount comprising in excess of 85% of the purchase price.
[Note 31] Plaintiffs Supplemental Opposition, Exhibit A.
[Note 32] See Cohen, 33 Mass. App. Ct. at 276.
[Note 33] I.e. that the $230,000.00 represented an amount less than the fair market value.
[Note 34] See Nickols, 341 Mass. at 19. See also, Cohen 33 Mass App. Ct. at 275. Drawing upon the language appearing in Nickols, the Court in Cohen observed as follows:
Whether a trust or obligation is imposed is a matter of interpretation of the particular instrument and determination of the particular donors intent [,] and is to be ascertained from a study of the instrument[s] as a whole in the light of the circumstances attending [their] execution. Search should be made for a general plan designed to express a consistent and harmonious purpose. (internal citations omitted)
[Note 35] See Parker Deed, p.1: [A]s measured at the perimeters of the property conveyed as bound by the lands of others and Sudbury Road.
[Note 36] Id.
[Note 37] See Nickols, 341 Mass. at 19.
[Note 38] Plaintiffs Supplemental Opposition , Exhibit C.
[Note 39] The term Grantors as used in the Escrow Agreement, is used to describe the Anonymous Donor of the $200,000.00 gift to the Town. At the same time, the term Grantee, is a reference to the Town itself.
[Note 40] G.L. c. 40, § 14: [T]he selectmen of a town may purchase, or take by eminent domain under chapter seventy-nine, any land .within the town not already appropriated to public use, for any municipal purpose for which the purchase or taking of land is not otherwise authorized or directed by statute; but no land shall be taken or purchased under this section unless the taking or purchase thereof has previously been authorized by vote of the town.
[Note 41] Including, without limitation, the language appearing in the Parker Deed itself, in the confirmatory Order of Taking, in the Escrow Agreement and the Selectmens Minutes. When viewed in the aggregate, these resources serve to elucidate the collective intent of the relevant parties, including that of the Grantor, Lloyd L. Parker.
[Note 42] Through its Board of Selectmen, Town Meeting and Recreation Commission.
[Note 43] See, for example, terms of the Escrow Agreement referenced above at p. 15.
[Note 44] It is well to remember that even if there were no public trust, the Locus in its entirety, would be subject to Article 97 of the Articles of Amendment to the Constitution of the Commonwealth. As a consequence, the Locus could not be used for other purposes or otherwise disposed of, absent a two-thirds roll call vote of each branch of the General Court.
[Note 45] Cohen, 33 Mass. App. Ct. at 277. The Cohen Court observed that the contractual obligation of the parties was such that it could not be disturbed by the Legislature itself without violating Article 1, § 10 of the Constitution of the United States. [No state shall pass any Law impairing the Obligation of Contracts .] Id. at 279.
[Note 46] See in this regard, Nickols at p. 23. The restriction and condition of the deed against certain activities were appropriate methods of preserving the pond and of accomplishing the sole and exclusive purpose. That purpose we construe not only as part of the condition to which it is attached, but also as defining the public trust or obligation . (emphasis added)
[Note 47] In somewhat similar fashion, Plaintiffs have argued the presence of a statutory conservation restriction. Even if this issue had not been rendered moot, however, it would appear that as a matter of law, no conservation restriction has been created under the Parker Deed. See in this regard, G. L. c. 184, §§ 31 & 32. Moreover, while there is little relevant discussion or analysis in the Summary Judgment record, to the extent a right as contemplated under § 31 has been conveyed, it is not clear that plaintiffs are the appropriate parties to seek enforcement of same under § 32.
[Note 48] The meaning of the term passive is not made abundantly clear by the Plaintiffs. Suffice it to say that they do not believe that athletic fields and a parking area of the sort that currently exist or that may be contemplated at the Locus, constitute a passive use.
[Note 49] With the exception of the buffer zone.
[Note 50] Together with other documentary evidence in the Summary Judgment record, cited herein.
[Note 51] See Cohen, at 277. In speaking of the 1892 Annual Report of the City Park Commissioners, the Cohen Court stated as follows:
In their annual report, the commissioners stated the land was to be secured for public enjoyment forever. The general plan and expression of a consistent and harmonious purpose are evident.
[Note 52] It is should be noted that the Locus had been deeded to the Town on the day prior to the Order of Taking, and that the Parker Deed was recorded immediately prior to the recordation of the Order. Given theses circumstances, this court believes that the taking came at a time when the Town had already acquired the Locus by purchase from Lloyd Parker. It is relevant in this regard that the authorizing Town Meeting vote permitted the acquisition by purchase or taking, not both. Moreover, the Order itself speaks in terms of a confirmatory taking. It is presumed that this term is an implicit reference to the earlier acquisition by purchase. Critically, the second WHEREAS clause of the Order, recites as follows:
[I]n accordance with said vote under said Article 2 [of the special town Meeting Warrant] the Town has proceeded to purchase said land and to pay therefore the sum appropriated for such purpose.
Thus, the Order of Taking itself expressly acknowledges a previous acquisition of the Parker Property by purchase.
[Note 53] See supra, p. 14. See also references to Nickols, supra, p. 8 where donations were made of land constituting substantially all the shores of Walden Pond .subject to the restriction and condition that no part of the premises shall be used for games, athletic contests, racing, baseball, football .. (emphasis added)
[Note 54] With the exception of the buffer zone.
[Note 55] Refer to Note No. 47, supra.
[Note 56] The buffer zone is to be maintained in a natural state and is thus may be rendered suitable for purely passive recreational pursuits that are not inconsistent with its natural state.
[Note 57] See Nickols, 341 Mass. at 23-24, quoted above at p.10. As per the Nickols Court it appears that concessions may be among those permitted structures. Presumably, public restrooms would also count among such appurtenant or incidental structures.