WILLIAM R. CUMING vs. RON S. JANSSON, as he is CHAIRMAN OF THE TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, DEXTER BLISS, GAIL NIGHTINGALE, RICHARD BOY, LUKE LALLY, as they are MEMBERS OF THE TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, HELEN WIRTANEN, ELIZABETH HORTON and JAMES McGRATH, as they are ALTERNATE MEMBERS OF THE TOWN OF BARNSTABLE ZONING BOARD OF APPEALS, JOSEPH D. DALUZ, as he is BUILDING COMMISSIONER OF THE TOWN OF BARNSTABLE and ANNE G. GOULD and ANNE G. GOULD vs. WILLIAM R. CUMING and RUTH D. CUMING.

Miscellaneous Case Number 147814 was commenced as Civil Action Number 89-370 in the Superior Court by complaint filed April 10, 1989, to enforce certain restrictive covenants incorporated into Certificate of Title Number 71728, through a deed to a parcel of registered land on Hummock Lane in Cotuit ("Locus") and to enjoin the construction of a dwelling allegedly constructed in violation of said covenants thereon ("the Dwelling"). This matter was transferred to the Land Court, pursuant to G.L. c. 212, §26A, on July 6, 1990. Plaintiffs claims in Miscellaneous Cases Number 131141 and 134586 were disposed of by Summary Judgment of this Court dated August 13, 1990, however, Defendants counterclaims seeking a declaratory judgment that the construction of the Dwelling did not require the consent of William R. Cuming and for costs and attorneys' fees pursuant to G.L. c. 12, §§11H and 11I remain. [Note 1]

On October 25, 1989, Plaintiff and Defendant, Anne G. Gould ("Gould") filed a Stipulation of Uncontested Facts.

This case was tried on September 10 and November 7, 1991, at which times the trial proceedings were transcribed by a court- appointed reporter. Six witnesses testified and fifty-three exhibits and a chalk were introduced into evidence. On the second day of trial the Court took a view of Locus and the surrounding area including Plaintiff's property. All of the exhibits and the chalk are incorporated herein by reference for the purpose of any appeal.

After considering the evidence, testimony and pertinent documents, I make the following findings of fact:

1. Locus is a parcel of land in Barnstable fronting on Cotuit Bay, described in Certificate of Title Number 71728 and is shown as Lot 19 on subdivision plan Number 8516-G [Note 2], registered with the Barnstable Registry District [Note 3] in Land Registration Book 486, Page 20. Said Plan dated April 4, 1977, shows a subdivision ("the Subdivision"), containing approximately 33 acres overall.

2. By deed dated May 19, 1977, from Gerard A. and Barbara A. Fulham and recorded as Document Number 220591 ("the Gould Deed"), Gould and her husband, James W. Gould ("the Goulds") took title to Locus as tenants by the entirety. The Gould Deed states, inter alia:

3. No building shall be erected, placed or maintained on the granted premises other than one single-family dwelling with attached garage and one guest house or cottage all designed for the use of and used by a single family only. ("Restrictive Covenant Number 3")

4. No building or structure, whether dwelling, garage, guest house, cottage, fence or other improvement shall be erected, placed, maintained, altered or used on the granted premises until the complete plans, specifications and location thereof have been submitted to and approved in writing by the Grantors or a single successor or assign designated by recorded instrument which approval shall not be unreasonably withheld . . . . ("Restrictive Covenant Number 4")

5. No building or structure other than boundary line fences shall be erected, placed or maintained on said premises within fifty (50') feet of any street line or within thirty (30') feet of any other boundary line.

At the time of purchase, Lot 19 was vacant except for a 600 square foot summer beach cottage.

3. By deed dated September 7, 1977, and recorded as Document Number 225433, the Goulds conveyed Locus to Gould, individually, "subject to and with the benefit of easements, restrictions, rights and agreements set forth or referred to in" the Gould Deed.

4. By deed dated November 21, 1978, and recorded as Document 244331, the Fulhams conveyed Lot 16 to Plaintiff and his wife ("the Cumings") as Joint Tenants. Also, on that date by deed recorded as Document Number 244335, the Fulhams assigned and transferred to Plaintiff all of the rights reserved to them as grantors under the restrictions imposed in the Gould Deed. Lot 16 is a parcel within the Subdivision fronting on Cotuit Bay; it contains a large dwelling, detached garage and one or more outbuildings; it is separated from Locus by Lot 18 which contains a sunken garden.

5. With the exception of Locus, and Lots 2 and 13 (also owned by the Goulds), the Cumings own all of the lots in the Subdivision. In November 1980, the Cumings offered to purchase the Gould's property in the subdivision. The offer was rejected.

6. Plaintiff is a successful businessman with experience in real estate development.

7. On June 17, 1987, Gould notified Plaintiff in writing that of her intention to build a house on Lot 19 with construction anticipated to begin in September 1988. In August of 1987, the Goulds and Plaintiff had a discussion concerning access to the Dwelling, during which discussion Plaintiff suggested, albeit perhaps facetiously, his preference that the Goulds not build a Dwelling at all.

8. On July 9, 1988, Gould provided Plaintiff with a copy of the preliminary plans ("July 1988 Plans") for the proposed dwelling ("the Dwelling") and, in a cover letter, explained that they were "about 80% satisfied" with those plans. The July 1988 Plans included depictions of the site, the four elevations and the first and second floor plans.

9. On July 27, 1988, Plaintiff and his wife replied to Gould and her husband explaining that they "intend [ed] to have the matter look into by professionals" and "when [they had] considered the matter fully, [they would] be in touch with [Gould] as to whether or not the plans met with [their] approval."

10. Around July of 1988, Plaintiff received from the Barnstable Conservation Commission ("the Commission") a Notice of Intent filed by Gould with the Commission for permission to construct the Dwelling. In August of 1988, Plaintiff and his wife attended the hearing before the Commission relating to Locus. Plaintiff also attended the Zoning Board meetings concerning Gould's application for a foundation and building permit.

11. On August 15, 1988, Mr. Gould sent Plaintiff a second set of plans, which plans were marked "Not for Construction" ("the August 1988 Plans") and a cover letter stating:

Enclosed are our completed plans.

. . . We would be happy to have you walk the site with us and our architect. Our architect has consulted with our builder, Charlie Rogers. Either of them could discuss our plans with you if that would be helpful.

We leave for California Sept. 1 and would appreciate having your written acceptance before our departure.

In the architectural profession it is not unusual that plans given to anyone other than the general contractor, including plans that are being disseminated for informational purposes only, are stamped "not for construction."

The August 1988 Plans included a site plan, elevation plans and first and second floor plans, all similar to the July 1988 Plans. The only significant changes were the removal of a cupola and the shifting of the footprint from twenty-five feet to thirty-five feet from the boundary line of Locus. That relocation was consistent with the restrictions in the Gould Deed and reduced any negative impact of the Dwelling on the surrounding area. In addition the plans removed a proposed deck outside the second story study. There were also additional minor changes made to the doors, windows, etc. of the Dwelling.

12. On August 29, 1988, the Cumings sent a reply letter explaining that they would turn the plans over to their attorney and would develop a response to the proposed Dwelling but would not be able to so by September 1, 1988.

13. On September 9, 1988, an attorney for Gould wrote Plaintiff claiming that there were no reasonable grounds for his withholding approval for the Dwelling requesting a written response to the plans and stating that if no reply were given by September 16, 1988, Plaintiff would be responsible for damages caused to Gould by the delay.

14. On September 12, 1988, Plaintiff sent a letter to the Goulds explaining:

We have been advised [by our attorney] that inasmuch as your submission is incomplete we are not obligated to respond to you. The failing is that you have not submitted to use "completed plans" and "specifications" as required by Restriction and Agreement #4. Until we have those documents we are not able to respond to your request for acceptance.

However, on a preliminary basis we do note that Restriction and Agreement #5 prohibits any structure being placed within 30 feet of a boundary line other than a street line.

The letter also alleged that the Plans violated the Barnstable Zoning By-Law; as noted above, the August Plan had corrected sideline setback problems.

15. On September 28, 1988, Counsel for the Goulds sent a third set of plans ("the September 1988 Plans") to counsel for Plaintiff along with a cover letter explaining that he believed he was providing Plaintiff with all the necessary plans and disputing any zoning violations. On October 13, 1988, Plaintiff's Attorney indicated to Gould's Attorney that the Dwelling would be too large. There were a number of relatively minor changes from the August 1988 Plans to the September 1988 Plans, none of which changed the general profile of the building, one of which lowered the foundation by approximately two feet. Plaintiff made no comments on the changes.

16. In the fall of 1988 construction began of the Dwelling on Locus. On December 1, 1988, after the foundation for the Dwelling was well under way, Gould sent Plaintiff a letter expressing her desire that her home have as little impact as possible on the Cummings and her hope that Plaintiff would approve the plans for the Dwelling.

It does not appear that Mr. Cummings ever replied to that letter. He did file Land Court Case Number 131141 which challenged the issuance of a foundation permit based on a zoning issue, alleging that the beach house constituted a separate dwelling not accessory building. That matter was resolved in Gould's favor by summary judgment. That action did not raise any objections to the proposed Dwelling other than the zoning issue. On February 21, 1989, Gould was granted a building permit for construction of the Dwelling which was appealed by Plaintiff in Land Court Case Number 134586 wherein arguments similar the those in 131141 were raised. Again Plaintiff made no objection to the Dwelling itself. This matter was also decided in Gould's favor under Mass. Rul. Civ. P., Rule 56. The determination of these issues, on August 13, 1990 in Gould's favor resolved all zoning questions. On April 10, 1989 as noted Plaintiff commenced this action.

17. On August 31, 1989, the Goulds sent Plaintiff a fourth set of plans ("the August 1989 Plans") referred to in a cover letter as a "complete set of the plans of [their] house as it [was] being built as well as a landscape plan." On August 31, 1989, the Dwelling was approximately 70% complete.

There were a number of relatively minor changes from the September 1988 Plans to the August 1989 Plans, again none of which changed the profile, area or size of the Dwelling and none of which have ever been challenged by Plaintiff.

18. Plaintiff has never given his approval to any set of plans for the Dwelling and until February of 1991 when he showed them plans to an architect in preparation for trial he had not shown any of the plans to building or design professionals, nor has Plaintiff made any specific objection to any Plans other than the general comment that the structure was too large.

19. There is a two-car garage ("the Garage") connected to the Dwelling by a breezeway approximately 16 feet long. The sides of the breezeway are open except for supporting columns for the roof. The issue is whether or not under the circumstances, Mr. Cuming unreasonably refused to approve the plans and if so is his consent necessary.

The supreme Judicial Court has held that restrictions such as those in the present case are to be strictly interpreted in favor of limiting the restraint on use of the granted premises. Donoghue v. Prynnwood Corp, 356 Mass. 703 , 707 (1970) and that such refusal based on personal dislike is arbitrary and that "grantee's construction of a costly house was excusable because of grantor's unreasonably refused to approve the plans."

As noted Plaintiff has never given any specific reason or reasons for not approving the plans other than a general comment through counsel that the house was too large, the fact that the plans were stamped "not for construction" and that he was never specifically asked for his comments. I find those arguments to be wholly without merit, particularly in view of Plaintiff's letter of July 27, 1988, wherein he "would be in touch" as to whether or not the plans met his approval. Plaintiff is an experienced businessman who has known since shortly after he purchased Lot 19 that Gould was interested in building a residence thereon and was informed of the specific intent in June 1987. Further, Gould, in good faith, sent Plaintiff four sets of plans, charting the progress of her construction of the Dwelling, explaining the August 1989 Plans were a "complete" set.

The Court has commented that while proceeding to build before obtaining necessary approval pursuant to a restrictive covenant is certainly not wise, it may be excusable if there is an unreasonable refusal to approve. Donoghue at 707. Under the present circumstances, I find that Plaintiff's refusal to comment except in generalities was arbitrary. While building without approval in view of such covenant, may not under many circumstances be wise, neither is it wise for the beneficiary of such covenant who has been previously notified of the Defendant's intent to build to withhold comment when presented with an obvious detailed set of plans. Had Plaintiff approved, or objected to specific features Defendant would, most likely be bound by such plans or reasonable objections thereto. A general objection that the structure is "too large" is insufficient without some explanation of what is acceptable. Where approval shall not be unreasonably withheld grantee should be required to give some reason for withholding consent and such objection must be reasonable.

Having viewed Locus, it is apparent that the Gould residence is more of a contemporary design than is Plaintiff's, but even in November foliage it is apparent that the Gould residence is well screened from, and situated so as to have minimum impact on Plaintiff's residence. The argument that it will devalue other lots of Plaintiff's would no doubt apply to any structure whatsoever, on lot 19. Moreover, I find what little evidence of devaluation as may be in the record to be speculative as to time or amount and insufficient to support such argument.

At trial, Plaintiff raised the point that the Garage to is not "attached" to the Dwelling as required by Restrictive Covenant Number 3 as there is no common wall between the Garage and the Dwelling. While it may be that technically the Garage is connected rather than attached, I find that, under the facts of this case, there has been a waiver of the provision of that covenant. From the on-set, it was obvious that the Garage would be connected by a breezeway, a point which could have been raised seasonably and certainly prior to the completion of construction. Moreover, such covenants must serve a purpose and I find no credible evidence to support Plaintiffsallegations that an "attached" garage would have had less impact on the surrounding lots than the Garage as constructed. In any event, were I to hold such objection valid Gould could probably resolve the matter by enlarging the breezeway into a room, thereby making the Garage "attached".

In summary, I find that as Plaintiff unreasonably refused to approve any of the plans of the Dwelling submitted by Gould, that therefore such approval is no longer required and that under the facts of this case neither the Dwelling nor the attached garage violate the restrictive covenants in the Gould Deed.

Plaintiff submitted Findings of Fact and Defendants submitted a Post-Trial Memorandum. I have not attempted to rule on each of Plaintiff's Requests as I have made my own findings on the questions of fact which I deem material and on the law which I believe is applicable.

Defendant has raised the issue of costs pursuant to G.L. c. 12, §§11H and 11I. While Plaintiff's acts give credence to his statement of preferring no house at all on Locus, he has followed statutory appellate procedure. While such actions may well have been designed to discourage or prevent the construction of the Gould residence, I do not find sufficient evidence of threats, intimidation or coercion to support a claim under those sections. This finding however, is not intended to negate any other section so of the General Laws under which certain costs may be recovered.

Judgment accordingly.