MARTIN S. FOX and MURIEL FOX vs. RICHARD A. SHWEDER and CAROL W. SHWEDER.

Martin S. Fox, one of the plaintiffs, is an Attorney in New Jersey. The Defendants, Richard A. Shweder and Carol W. Shweder, respectively are a university professor of anthology and a potter. With the professional status of the parties one might have expected that their legal dispute would have been resolved without judicial intervention, particularly in the light of the able counsel engaged by the litigants. However, that expectation has not borne fruition. Rather the plaintiffs sought a declaratory judgment as to Count One in their complaint that a building erected on the defendants land violates the restriction set forth in a deed from Aron Krich et al to the defendants dated January 22, 1981 and recorded with the Dukes County Registry of Deeds (to which all recording references relate) Book 381, Page 588 (Exhibits No. 2) and seeking its specific enforcement and as to Count Two that certain activities within said building would violate the restriction. The defendants counter that the plaintiffs have no standing to enforce the restriction but that if they do, the restriction a) is not violated by a garage or an artist's studio or one building combining both and b) permits a guest house on locus although it is not the present intention of the defendants so to convert it.

The gravamen of the dispute centers on the correct interpretation of the following language in the deed to the defendants: "said premises are conveyed....subject to the following restrictions:

"That at no time shall be erected or maintained on the entire premises more than one (1) single family dwelling house, together with customary out-buildings."

I have concluded that the restriction in issue was not imposed pursuant to a common scheme and therefore cannot be enforced by the plaintiffs. I also express my decision as dictum that the building erected by the defendants is a customary outbuilding permitted by the restriction. I further find and rule that since the defendants have forsworn any present intention to convert the structure into a guest house, the Court need not consider the question at the present time. However, the circumstances in Chilmark relative to guest houses certainly suggests their inclusion within the term "customary outbuildings."

The parties have entered into a stipulation of facts and exhibits (Exhibit No. 1A) pursuant to which thirty-one exhibits were admitted into evidence. During the course of the trial an additional eight exhibits were introduced. The trial was held in the Town Hall in Edgartown on May 21, 1992 and at the Land Court in Boston on August 11, 1992 at each of which sessions a stenographer was appointed to record and transcribe the testimony. After the first session a view of the premises and of other Chilmark properties with an artist's studio was taken by the Court in the presence of counsel. At the trial the following persons testified: the plaintiff, Martin S. Fox, Hugh S. Weisman, the Shweder's architect, Leonard Jason, Jr., the Chilmark zoning enforcement officer, Samuel Milstein, one of the "developers" of the area, and the defendant Carol Shweder. On all the evidence including the stipulation of the parties (Exhibit No. 1A) I find and rule as follows:

1. Aron Krich and Samuel Milstein, neither one of whom is a professional developer, purchased two tracts of land in said Chilmark, one from Mary A. Guerin (the "Guerin parcel") by deed dated October 10, 1962 and duly recorded in Book 246, Page 287 (Exhibit No. 4) and the other from E. Gale Huntington et al (the "Huntington parcel") dated March 25, 1966 and duly recorded in Book 261, Page 378. (Exhibit No. 23) Title to the properties of the plaintiffs and the defendants came to them by mesne conveyances of the Guerin parcel.

2. Other than a restriction imposed on a thirty (30) foot wide strip of land prohibiting the erection or maintenance of any structure or building thereon by a deed from Aron Krich et al to Edwin W. Salzman dated April 1, 1967 and duly recorded in Book 266, Page 122 (Exhibit No. 9) the only express restriction imposed on lots conveyed from the Guerin parcel, in addition to those set forth in the deeds to the parties, were set forth in a deed to Daniel Bell dated April 5, 1966 and duly recorded in Book 262, Page 126. (Exhibit No. 5)

3. The Bell deed conveyed a parcel of 3.25 acres as shown on a plan entitled "Plan of land in Chilmark, Mass. Surveyed for Daniel Bell" dated September 8, 1967 by Henry R. Anderson duly recorded in Book 262, Page 126 (Exhibit No. 7) subject to the restriction "that at no time shall there be erected or maintained thereon any buildings in excess of two (2) single family dwelling houses erected and maintained upon the premises which is stated in the instrument to run with the land for the benefit of the remainder of the grantors' land.

4. In 1979 Messrs Krich and Milstein subdivided the Guerin land as shown on a plan dated September 18, 1978, revised on the following January 29th and recorded as Chilmark Case File 116, (Exhibit 17) Lot 2 on the plan was conveyed by Samuel Milstein et al to Aron Krich et al by deed dated May 7, 1979 and duly recorded in Book 366, Page 551. (Exhibit No. 18) About ten years earlier another piece of the Guerin parcel had been conveyed by Messrs Krich and Milstein to Mr. and Mrs. Krich by deed dated April 3, 1969 and duly recorded in Book 277, Page 201 (Exhibit No. 13) and simultaneously another piece had been conveyed to Mr. and Mrs. Milstein by deed also dated April 3, 1969 and recorded in Book 277, Page 199. (Exhibit No. 11)

5. By deed dated February 14, 1979 Aron Krich et al conveyed to the plaintiffs two parcels shown on the 1979 plan, Lot 2 and the 1.72 acre piece shown as belonging to Aron Krich and Marion Krich (Exhibit No. 1). Mr. and Mrs. Fox also were granted an easement by Aron Krich et al, Trustees of Fueling Hill Trust to draw water for ordinary household purposes (among other rights) "at the rate of one (1) dwelling house and customary outbuildings as permitted by the municipal zoning ordinances" by grant dated May 2, 1979 and duly recorded in Book 366, Page 555. (Exhibit No. 19)

6. Other owners in the area developed by Messrs Krich and Milstein also were granted easements to draw water, a) namely Professor Bell at the rate of one dwelling house for each acre of land owned by him (3.25 acres) by instrument dated April 5, 1966 and duly recorded in Book 262, Page 130, b) Joseph C. Low et al by deed dated June 16, 1969 and duly recorded in Book 278, Page 399 at the rate of "one dwelling house for each full acre of land owned by the grantee by instrument dated June 16, 1969 and recorded in Book 278, Page 399 (Exhibit No. 15) and c) the defendants "by grant dated January 22, 1981 and duly recorded in Book 581, Page 591, the language tracking that of the Fox easement. (Exhibit No. 22)

7. Martin S. Fox, as Trustee under Irrevocable Trust Agreement dated February 26, 1988 now is the owner of the Parcel conveyed by the 1979 deed (Exhibit No. 1) and Mrs. Fox of a retained interest. (Exhibit No. lA, para. 3)

8. Aron Krich, Marion Krich, Samuel Milstein and Charlotte Milstein conveyed to the defendants, as tenants by the entirety, Lot 1 on the 1979 plan by deed dated January 22, 1981 and duly recorded in Book 381, Page 588 (Exhibit No. 2). The premises were conveyed subject to the restriction "that at no time shall be erected or maintained on the entire premises more than one (1) single family dwelling house, together with customary out­buildings."

9. Paragraphs 10 and 11 of the stipulation (Exhibit lA) read as follows:

By deed dated April 3, 1969, Aron Krich and Samuel Milstein, as tenants in common, conveyed a portion of the Guerin parcel to Samuel Milstein and Charlotte Milstein, husband and wife, as tenants by the entirety. The deed is recorded in said Deeds in Book 277, Page 199. The Milstein parcel is shown as Lot 3 on the February 23, 1967 plan.

By deed dated July 27, 1989, Samuel Milstein conveyed the Milstein parcel (Lot 3 on the February 23, 1967 plan) to Norman H. Werthwein and Frances M. Werthwein. The deed is recorded in said Deeds in Book 525, Page 64.

10. The Chilmark zoning by-law (Exhibit No. 38) defines "accessory building" in Section 2.0 as "any building customarily accessory and incidental to a permitted principal building." "Guest Houses" are authorized in Agricultural-Residential Districts in which locus is situated by special permit granted by the Board of Appeals of the Town of Chilmark ("ZBA") provided the lot on which the principal dwelling and the accessory dwelling are located contain a minimum area of 1.5 acres and the maximum floor area does not exceed 800 square feet and subject also to two other provisions not in issue here.

11. Artists' studios are not directly referred to in the zoning by-law, but the Zoning Enforcement Officer considers such structures to be the type of accessory Structure permitted as of right in Chilmark. There are others in the area where the properties of the parties are situated.

12. Guest houses also are common in Chilmark. They do not represent the Nantucket Village pattern where home owners frequently rent rooms with their enterprise bearing this denomination. In Chilmark a guest house is either a) an accessory structure in which family members, including grandchildren may stay, b) a small dwelling rented to third parties for the income it might generate or c) a place for the homeowner to reside while renting his principal residence.

13. The defendants applied for a special permit for a guest house in 1987, and several persons appeared in opposition to their application. The ZBA voted to deny the petition "without prejudice against a direct-reapplication to this Board when they have a declaratory judgment from the court stating that the restriction in the deed to their property does not exclude the construction of a guest house."

14. The defendants then caused their architect to redo the plans for the contemplated guest house to an artist's studio. The changes included the deletion of the exterior deck, a masonry fireplace (with an area for a wood stove in lieu thereof) the bathroom with a washer, dryer and bathtub (a lavatory with toilet and sink substituted) the master bedroom closet, the kitchen, the stairs to the second floor, the dormer which originally provided head room for second floor bedroom, second floor closet, the partition and door dividing the latter bedroom from the remainder of the floor. In addition, the second floor windows were changed, the lavatory first became a glaze room for the pottery and then was eliminated. A toilet and sink seems to the Court to be a necessary appurtenance to a work area and question this decision. The screened porch remains for drying pottery as do the ground floor garages.

15. The septic system design approved for the original contemplated guest house was installed, the plans having been paid for and the sink needing an outlet. The square footage of the artist's studio is 720 square feet.

16. The Building Inspector issued a building permit for the construction of the artist's studio, and the building was well on its way to off season completion when the plaintiffs learned of it. This action followed.

17. During May when foliage has leafed out, the artist's studio is barely visible, if at all, from the plaintiffs' home. In November the building might be more easily seen.

18. The defendants have no present plans to seek a special permit for a guest house, but they prudently do not rule out ever seeking such permission. Admittedly the physical changes necessary to accomplish this would not be difficult if sufficient moneys were available. The plaintiffs, however, imbued with a paranoia similar to some political figures argue that the Structure, if not now a guest house, will be or has the potential to be one almost immediately.

19. When asked by the Court why he sought relief (which includes asking the Court to order the "offending" structure removed) Mr. Fox, an attorney, contrasted the environment in New Jersey, his domicile, to the secluded Chilmark lifestyle. A very integral part of such lifestyle, however, and of the Vineyard as a whole, is an accommodation for artists such as Mrs. Shweder.

The law of this Commonwealth is clear that the owners of property such as the plaintiffs have standing to enforce the restrictions on owners who acquire their land thereafter only if there is a common scheme to impose on all lots in the development the same restrictions. Gulf oil corp. v. Fall River Housing Authority, 364 Mass. 492 , 496 (1974). Here there is no common scheme. The grantors to the plaintiffs and defendants are not identical. Only one other conveyance of the premises acquired by Messrs. Krich and Milstein included restrictions, and they were not the same. It is true that the Bell restrictions equalled one dwelling house to a building lot, but the restriction is not so phrased. And the limitations imposed on those entitled to draw water indeed were limited in number but were not restrictions.

It is true that in Snow v. Van Dam 291 Mass. 477 (1935) the leading case in the field it was said at Page 481, "In the absence of express statement, an intention that a restriction upon one lot shall be appurtenant to a neighboring lot is sometimes inferred from the relation of the lots to each other." If such is the intention, however, the restrictions as drafted should have stated that the restriction was imposed for the benefit of the grantors' remaining land with an agreement by the grantor to impose a like restriction on his remaining land for the benefit of the granted premises. This was not done here, although the deed to Bell shows that the grantors' draftsman knew how to impose the restrictions for the benefit of the remaining land if he so elected. The conclusion is inescapable that the plaintiffs cannot enforce the restriction which I find and rule is personal to the grantors named in the deed to the defendants.

Even if the restriction on the lands of the parties were found to have been imposed for their mutual benefit as adjoining lots, there seems no doubt that an artist's studio in Chilmark is a customary out-building. A garage clearly is as well, and I agree with the Building Inspector and Zoning Enforcement Officer that combining the two is appropriate both for the zoning by-law and the interpretation of the restriction.

I accept the defendants' statement that they do not presently intend to request the ZBA to grant them a special permit to convert the artist's studio to a guest house. Should they elect to do, the restriction, so long as it remains in effect, would not bar a true guest house, i.e. that is, temporary living quarters for family members and other guests since the single dwelling house referred to in the restrictions is the main Shweder home. Any use of the guest house for long term paying guests or the Shweders themselves might well violate the restriction but that is a question for another day.

Judgment accordingly.