ASSOCIATION OF EASTERN POINT RESIDNETS, INC. and RALPH DETRA vs. JUDITH STEELE, as Trustee of AGS Realty Trust, and JOHN HOWARD, et al, as members of the Planning Board of the City of Gloucester.

This complaint brought by the Association of Eastern Point Residents, Inc. ("the Association") and Ralph Detra, as plaintiffs, against John Howard, et al, as members of the Planning Board of the City of Gloucester, and Judith M. Steele, Trustee of AGS Realty Trust ("AGS") , as defendants, originally contained two counts. In the first count, the plaintiffs appealed from a decision of the Gloucester Planning Board approving a definitive subdivision plan of land of the defendant AGS Realty Trust. By agreement between the plaintiffs and AGS the plaintiffs dismissed as defendants the members of the Gloucester Planning Board and also dismissed with prejudice their appeal from the Planning Board's decision approving the definitive subdivision plan and agreed that the plan might be endorsed and recorded with the Essex South District Registry of Deeds. The defendant AGS for its part agreed that it would "refrain from any building or construction on Lot 1 as shown on this subdivision plan until such time as the matter of the enforceability vel non of certain restrictions" was determined by this Court. The second count in the complaint, as suggested by the stipulation, concerns the proper interpretation of restrictions which appear of record in AGS's chain of title and the enforceability of such restrictions by the present plaintiffs.

A trial was held at the Land Court on November 23, 1988 at which the evidence was electronically recorded and the tapes thereafter were transcribed to preserve the records. At the trial Donald Monell, a resident of the Eastern Point section of Gloucester and an architect familiar with the restrictions, Glenn Gibbs, the Planning Director for the City of Gloucester, Barry McKay, the Fire Chief of said city, Katherine Gross-Nutbrown, who is Chairman of the Board of Health, and William Stride, President of the Association, testified. Twenty-eight exhibits were introduced into evidence by the plaintiffs and ten by the defendants, in each instance some of such exhibits having multiple parts.

On all the evidence, I find and rule as follows:

1. Eastern Point is a section of Gloucester which has been sparsely settled. It is a separate peninsula forming the eastern boundary of Gloucester Harbor. A portion of it is an Audubon Sanctuary; there are at least two beaches open to residents of Eastern Point and also to Gloucester residents when parking permits; there are private roads administered by the Association; and there is at least one salt water pond called Niles Pond, which has been adversely affected by existing septic systems.

2. Originally, one John Prentiss had a large summer house on Eastern Point located on a tract containing about 80 acres. After the death of Mr. Prentiss, the property went on the market and a group of neighbors purchased it. A parcel containing about 30 acres with a building thereon was quickly sold to a family named Thompkins and the remaining property was subdivided. Mr. Monell's father-in-law was one of the original investors, and when the architect moved to the area, he was persuaded to assist in the development plans. A corporation called Eastern Point Community, Inc. was formed to subdivide the tract. One subdivision was known as the Cove Hall Development, and this area is not concerned in the present litigation. The tract where locus is situated is known as Blueberry Shores which is the area bounding on Niles Pond and the ocean (See Plaintiffs' Exhibit No. 20).

3. Several deeds out from Eastern Point Community, Inc. were introduced into evidence. These conveyances are subject to restrictions of the same general pattern which by their terms continue until the year 2054, authorize only one family dwelling house with appurtenant buildings, require prior approval of plans for the building and sewerage disposal facilities, prohibit certain activities and include a purchase option. However, the restrictions permit Eastern Point Community, Inc., so long as said corporation continued in existence and owned land or any interest therein at Eastern Point, to enforce, waive or suspend the restrictions, stipulations and covenants "and thereafter by such grantee of any of said corporation's remaining land or interest in land to whom the power so to enforce, waive or suspend is expressly granted, assigned and conveyed by said Eastern Point Community, Inc. by an instrument duly recorded in the Essex South District Registry of Deeds . . . "

4. By deed dated December 28, 1962, Eastern Point Community, Inc. conveyed to the plaintiff Association a certain parcel of land consisting primarily of Brace's Cove Beach and all other real estate owned by Eastern Point Community, Inc. The deed specifically assigned the power to enforce, waive or suspend any or all of the restrictions imposed by Eastern Point Community, Inc. upon any land which it had conveyed by duly recorded deeds (Plaintiffs' Exhibit No. 7).

5. By deed dated October 1, 1962 and duly recorded in Book 5009, Page 260 (Plaintiffs' Exhibit No. 6) Eastern Point Community, Inc. conveyed to Welch Realty Company a large parcel of land at Eastern Point which contained a provision providing that the premises might be subdivided into not more than twelve (12) lots, no one lot to have an area less than one and one-third (l 1/3) acres. This is the only deed introduced into evidence which contained a provision specifically limiting subdivision.

6. The defendant AGS's chain of title runs from Eastern Point Community, Inc. to Carlton B. Swift, Jr. to whom a parcel of land containing 4.57 acres was conveyed by deed dated October 1, 1962 and duly recorded in Book 5009, Page 265 (Plaintiffs' Exhibit No. 23). In addition to the other restrictions referred to above, this deed contained, as do most of the deeds introduced into evidence, the following restriction: "(a) No building except one dwelling house designed for the occupation of one family and the buildings usually appurtenant thereto, including a garage, shall be erected, placed, or maintained on each lot of the granted premises." (underlining added). The premises conveyed to Mr. Swift are shown on a plan entitled "Subdivision Plan of Land, Gloucester, Mass. Owned by Eastern Point Community, Inc." dated December 31, 1951 (Plaintiffs' Exhibit No. 3A).

7. Mr. Swift conveyed the 4.57 acre parcel to Margaret L. Hart by deed dated August 24, 1963 and duly recorded in Book 5016, Page 428 (Plaintiffs' Exhibit No. 10). Ultimately Mrs. Hart sought to convey a portion of her premises to her son, Peter M. Hart, Jr. and the conveyance was consummated by a deed dated December 6, 1975 and duly recorded in Book 6205, Page 428 (Plaintiffs' Exhibit No. 11). The premises in question are shown as Parcel B on a plan entitled. "Plan of Land in Gloucester, Property of Margaret L. Hart (Mrs. Peter M. Hart)" dated July 17, 1975 by Essex Survey Services, Inc. and duly recorded in Plan Book 136 as Plan No. 39 (Plaintiffs' Exhibit No. 13A). Parcel B as shown on said plan contained 2.557 acres and Mrs. Hart's remaining land, Parcel A, 2.103 acres. So far as appears, the Association was not asked to consent to the subdivision of the premises or to waive the provisions of paragraph 58 or 50 as specifically set forth in the deed to Mr. Swift, although this was done in connection with other conveyances at Eastern Point.

8. When Mrs. Hart conveyed Parcel A on the latter plan to Ralph W. Detra, et ux, by deed dated June 30, 1986 and duly recorded in Book 8363, Page 572 (Plaintiffs' Exhibit No. 12), the Association consented to the sale and waived restrictions set forth in paragraph 5B by instrument dated July 2, 1986 and duly recorded in Book 8363, Page 574 (Plaintiffs' Exhibit No. 17).

9. Peter M. Hart, Jr. conveyed locus to AGS by deed dated December 7, 1987 and duly recorded in Book 9311, Page 147 (Plaintiffs' Exhibit No. 13). The Association waived its Option to Purchase and certified in connection with this conveyance that the property was in compliance with "the construction approval provision of said restriction and that no suit to enforce any rights under said restriction has been commenced with respect to any improvement on the property." The instrument evidencing the waiver is dated December 28, 1987 and duly recorded with said Deeds on February 5, 1988 as Instrument No. 185 (Plaintiffs' Exhibit No. 19). Thereafter, the defendant AGS elected to subdivide the parcel purchased from Mr. Hart and a plan entitled "Definitive Subdivision Plan, Niles Pond Road, Gloucester, Mass. Prepared for AGS Realty Trust, Rocky Pasture Road, Gloucester, Mass." dated January 12, 1988, revised May 24, 1988 by Survey Associates was approved pursuant to the provisions of the subdivision control law by the Gloucester Planning Board. The plan pursuant to the stipulation referred to above has been recorded in Plan Book 244 as Plan No. 96 of the Essex South District Registry of Deeds. Lot 1 thereon has an area of 40,038 square feet and Lot 2, 54,464 square feet. A private way serving Lots 1 and 2 also has been created and is shown as Megan's Way on the subdivision plan (Defendants' Exhibit No. 5).

10. Eastern Point lies within the R-1 zoning district known as Coastal Residential where the minimum permitted lot area is 40,000 square feet (Defendants' Exhibit No. 9).

11. In 1988, residents of Eastern Point, through the Association, applied to have the zoning district changed from R-1 Coastal Residential to R-RB Rural Residential which would require a minimum lot area of 80,000 square feet. The planning staff of the city and the Planning Board recommended the rezoning (Plaintiffs' Exhibits Nos. 24 and 25). However, the City Council held a hearing on September 6, 1988 and after discussion voted to deny the Association's petition (Defendants' Exhibit No. 8).

12. As an older municipality, Gloucester has problems with its water flow capacity which are acute in the Eastern Point district. There also are sewage disposal problems since there is no public sewerage in the area in question.

The defendants raised a question as to the standing of the plaintiffs. It appears to me, however, that both plaintiffs have standing to bring this action. The Association by virtue of the deed to it from Eastern Point Community, Inc. was specifically given this right so long as it had any interest in the land at Eastern Point which it appears to have; even if it did not and thus had lost such right, it is clear that Mr. Detra, as an abutter, is entitled to enforce the restrictions. It is also my opinion that the restrictions do constitute a common scheme applicable to the Blueberry Shores portion of Eastern Point, even though not every conveyance apparently included similar limitations on the use which might be made of the premises thereby granted. As to the plaintiffs' main thesis, the contention that the restrictions prevent subdivision, I find and rule otherwise. A study of the restrictions set forth in the deed to the defendants' predecessor in title, Mr. Carlton B. Swift, Jr., strongly suggests that the premises thereby conveyed might be subdivided by the grantee and his successors and assigns. The specific language to which I refer is that which refers to "each lot of the granted premises." Such language clearly envisions a division of the original 4.57 acre parcel, and it is only the number of buildings on each lot resulting from the subdivision which is affected by the restrictions.

There are two principles of construction which are a tool in interpreting the language of the instruments. It is well settled, of course, that the deed must be construed most strongly against the grantor if indeed there should be any ambiguity. Secondly, the language set forth in the deed from Eastern Point Community, Inc. to Welch Realty Company did include a specific limitation on subdivision which makes it clear that the draftsman of the instruments at Eastern Point was aware of the correct language to be used should a limitation on subdivision be desired. There is no such express limitation in the deeds in the defendants' chain of title and indeed the language which I have quoted presupposes some division of the original large tract. Finally, it should be pointed out that a prohibition against subdivision might be considered an invalid restraint on alienation, such restraints generally being objectionable, see Fisher v. Fisher, 23 Mass. App. Ct. 205 , 207 (1986), Cf. Franklin v. Spadafora, 388 Mass. 764 (1983), so that presumably the original developer of Eastern Point Community, Inc. elected to rely on the zoning by-law to control the size of the lots in the development rather than containing specific provisions as in the Welch deed on the size of the lot or to prohibit any division thereof.

The approach which I have taken obviates a determination as to whether the provisions of G.L. c. 184, §30 mandate against the specific enforcement of the restrictions under review. Accordingly, I find and rule that the plaintiffs are not entitled to the relief they seek as to Count 2 of the complaint since the language of the restrictions does not bar the subdivision of AGS's land.

Judgment accordingly.