PAUL K. EISENHAURE and KATHERINE R. EISENHAURE vs. THE ZONING BOARD OF APPEALS OF THE TOWN OF TEWKSBURY and RUTH HANSON.

Plaintiffs' complaint seeks relief on two counts. In Count I, Plaintiffs appeal the decision of Defendant Tewksbury Zoning Board of Appeals, which granted variances to Defendant Hanson, enabling subdivision of her property into two lots. This Court dismissed Count I after hearing Plaintiffs' motion for Summary Judgment on April 26, 1991, finding the appeal not seasonably filed under G. L. c. 40A, §17. In Count II, Plaintiffs seek enforcement of recorded restrictive covenants which would preclude Defendant Hanson from subdividing her property.

On August 19, 1991, the parties filed an Agreed Statement of Facts.

A trial was held on August 19 and August 29, 1991. The sole issue presented was whether the recorded restrictive covenants are enforceable against Defendant Hanson to prevent her from subdividing her lot into two lots, and constructing a house on the second lot. A stenographer was appointed and recorded the testimony. Thirty-seven Exhibits were introduced into evidence (these are numbered 1 through 34, with three Exhibits lettered A through C); all of them are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Kevin J. Donnelly, Plaintiffs' next door neighbor to the north, Ann Conlin, a licensed Real Estate Broker residing in Plaintiffs' neighborhood, and Plaintiff Paul K. Eisenhaure; all for Plaintiffs; and Richard J. Hanson, Defendant Hanson's husband.

I find and rule as follows:

1. Plaintiffs, husband and wife, live at 6 Westland Drive in Tewksbury ("Plaintiffs' property"). Defendant Hanson lives diagonally across the street at 5 Westland Drive ("Defendant Hanson's property").

2. The population of Tewksbury (the "Town") is approximately 28,000 persons.

3. Plaintiffs and Defendant Hanson derive title to their properties from a common grantor, Louis M. Marion & Sons, Inc. ("Marion").

4. Plaintiffs' property and Defendant Hanson's property are shown on a plan entitled "Cedar Springs II, Subdivision of Land in Tewksbury, MA" dated December 10, 1963 and recorded at Middlesex North District Registry of Deeds (all recording references in this Decision are to that Registry) at Book of Plans 99, Plan 162 (Exhibit 7). That plan provides for an extension of an earlier subdivision, shown on a plan entitled "Westland Subdivision of Land in Tewksbury Mass" dated August 7, 1963, recorded at Plan Book 99, Plan 67. The two plans together provide for Westland Drive leading off North Street to the west in the shape of a flat horseshoe, that is leading off North Street and then leading back to it. The two plans together provide for 21 lots, each having at least an acre; I refer to the 21 lots as the "Subdivision".

5. Marion imposed "Restrictions and Protective Covenants" on all the lots in the Subdivision by instrument dated October 1, 1964, recorded at Book 1667 Page 295 (Exhibit 3). Plaintiffs' and Defendant Hanson's properties are subject to these Restrictions and Protective Covenants, which run with the land for thirty years, through October 1, 1994. There are provisions for automatic extensions thereafter, as to which I do not comment.

6. The Restrictions and Protective Covenants include the following (the "Restrictions"):

LOT AREA AND WIDTH. No dwelling shall be erected or placed on any lot having a width of less than 150 feet at the minimum building setback line nor shall any dwelling be erected or placed on any lot having an area of less than 43,000 square feet.

LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one half stories in height and a private garage for not more than two cars.

7. Plaintiffs' and Defendant Hanson's properties are located within a general residence district as defined by the Town's Zoning By-Laws. The minimum lot size requirement in this district is 1.0 acre. The frontage requirement for building is 150 feet.

8. Defendant Hanson was granted a variance from the lot size and frontage requirements of the Town's By-Laws on July 10, 1989 (Exhibit 6). The variance allows her to subdivide Defendant Hanson's property into two lots of 21,977 and 21,978 square feet, and to construct a single family dwelling on the newly created rear lot, while maintaining her present home on the front lot (Exhibits 5 and 6).

9. Plaintiffs and Defendant Hanson stipulated that this subdivision would violate the Restrictions (uncontested facts paragraph 11).

10. Plaintiffs claim the Restrictions are enforceable under G. L. c. 184, §30 (a copy of which is attached) because they are of actual and substantial benefit to Plaintiffs and because Defendant Hanson has failed to demonstrate any of the situations specifically enumerated in the statute which would render the Restrictions unenforceable.

11. Plaintiffs have the right to enforce the Restrictions and the Restrictions are of actual and substantial benefit to Plaintiffs. The Subdivision is a pleasant area with substantial homes on lots of an acre or more, having attractive vegetation and landscaping. The Subdivision is in the North Tewksbury section of the Town, where substantial homes on acre lots predominate. Only one lot in the Subdivision has been subdivided, a peculiar shaped lot at the far end of the Subdivision away from Plaintiffs and Defendant, the layout of which is such that its subdivision would not have a substantial impact on the overall character of the Subdivision.

12. Subdivision of Defendant's property, and the construction of a house on the new lot, as proposed, would have a substantial negative impact on Plaintiffs. There would be an immediate change in the character of the neighborhood, the introduction of a crowded feeling as compared to the rest of the Subdivision. The value of Plaintiffs' property would decrease. Plaintiffs' real estate broker expert witness testified that the impact would be a decrease in value in the range of $10,000 to $15,000 and I find that credible.

13. Since Tewksbury has a population of well under 100,000, the considerations raised by the second sentence of G. L. c. 184, §30 do not come into play.

14. The third sentence of Section 30 provides that no restriction shall be enforced, except by money damages, if any one of five circumstances exist. I find and rule that none of them does.

15. The neighborhood has not changed materially from its establishment. Public sewer has been introduced, but there is no real suggestion that the need for septic systems was behind the establishment of acre lots. It was not clear from the testimony when acre zoning was imposed, although there is some suggestion that it predated the Subdivision. In any event, the facts of this situation (Defendant obtained a variance) suggest the continued need for the Restrictions, notwithstanding zoning controls. There have been no other changes of the type set forth in clause (1) of the third sentence of Section 30.

16. Plaintiffs have done nothing to render their enforcement of the Restrictions inequitable. Plaintiffs' property still benefits from the Restrictions and Defendant's property is part of a group of lots still subject to them. Far from impeding reasonable use of the land in the neighborhood or impairing growth or contributing to blight, the Restrictions are a factor in maintaining a desireable, established community. Finally, there are no other factors making enforcement inequitable or not in the public interest.

17. The Restrictions are enforceable against Defendant by Plaintiffs. Defendant and Defendant's agents, servants, employees and attorneys, and any other persons having actual notice of this Decision, are hereby enjoined from subdividing Defendant's property; this order shall remain in effect for the Term of the Restrictions as set forth in the "Restrictions and Protective Covenants," provided that the Court makes no determination hereby as to the extension of that Term after October 1, 1994.

Judgment accordingly.

exhibit 1