IRA and JACQUELYNNE STEPANIAN v. INGEBORG E. SARACENO

Introduction

By virtue of the instant action, the defendant, Ingeborg E. Saraceno (defendant / Saraceno), has moved, pursuant to Mass. R. Civ. P. 56, for partial summary judgment on one issue of law, and for summary judgment on another. The matter at hand concerns the enforceability of a deed restriction which creates a forty foot wide buffer zone (Buffer Zone) on Saraceno’s property for the benefit of her abutting neighbors, the plaintiffs Ira and Jacquelynne Stepanian (plaintiffs / Stepanians). The Buffer Zone runs the length of the common lot line between the Saraceno and Stepanian properties and is “intended to be forever kept open and unimproved and substantially in its natural vegetative state.” As such, the restriction prohibits the placement, maintenance or construction of “buildings, additions, structures, fences, planting, or improvements” [Note 1] within the zone.

The Stepanians filed their verified complaint on November 23, 2010, seeking a declaration pursuant to G.L. c. 231A that certain improvements constructed by the defendant Saraceno within the Buffer Zone are in violation of the said restriction. [Note 2] Over a period of years, a parking area supported by a railroad tie retaining wall, wooden stairs, two lamp posts and two stone columns have been constructed within the Buffer Zone.

The defendant has moved for partial summary judgment in one motion, and for summary judgment in another. In her motion for partial summary judgment, Saraceno seeks a declaration that the restriction, created by deed dated December 9, 1985, [Note 3] is by its terms, unlimited as to time and is, therefore, subject to a thirty year term under G.L. c.184 §23. In her motion for summary judgment, the defendant contends that the Stepanian’s suit is time-barred, as her improvements within the Buffer Zone are protected by a six year statute of limitations under G.L. c. 184 §23A. Consequently, the two issues presently before this court concern the following:

(a) Whether the said restriction is unlimited as to time; and

(b) Whether the improvements in the Buffer Zone are protected by the six year statute of limitations set forth in G.L. c. 184 §23A.

Based upon the parties' oral arguments, their memoranda and relevant exhibits, this court concludes that the restriction is unlimited as to time but that the improvements in the Buffer Zone are not of the sort that are encompassed by G.L. c. 184 §23A.

Background

The material facts are not in dispute. The defendant, Ingeborg Saraceno, holds title to a waterfront parcel of registered land located at 225 Bayberry Way, in the Osterville section of Barnstable, Massachusetts. The land owned by the defendant was once part of a larger tract of land owned by Daniel and Rose Tully. In 1985, the Tullys subdivided their land into two parcels, retaining the smaller parcel improved with their residence. By deed dated December 9, 1985, they conveyed an unimproved parcel [Note 4] of almost six acres to Dominic Saraceno, the defendant’s late husband and predecessor in title.

The deed from the Tullys to Dominic Saraceno reserved a driveway easement, granted a roadway easement, and created a restriction intended to establish a Buffer Zone. The pertinent language is as follows:

“The Grantors [Tullys] reserve for themselves, their successors, heirs and assigns for the benefit of their remaining land shown as Lot 243 on said Land Court Plan 2664-119 the right to use the circular driveway shown on said plan in the shaded area for all purposes which streets or roads may be used in the Town of Barnstable, including but not limited to use for access, egress, utilities, drainage, water and sewer.

Said premises are conveyed subject to and with the benefit of a right of way in common with all others entitled thereto in and over the twenty (20’) foot wide way shown on said plan and the forty (40’) foot wide way leading therefrom to and from the Town Road known as Seaview Avenue.

Said premises are conveyed subject to the following restrictions imposed for the benefit of the remaining land of the Grantors shown as Lot 243 on Land Court Plan 2664-199, which said restrictions shall remain in full force and effect for a period of thirty (30) years from the date of the deed conveying the same and may be extended for successive periods of twenty (20) years in accordance with the provisions of the General Laws: [Note 5]

1. No buildings, additions, structures, fences, planting, or improvements shall be placed, maintained, erected, or caused to be allowed within the southerly forty (40’) feet of the premises conveyed in this deed, adjoining the remaining land of the Grantors and being delineated by a line running forty (40’) feet northerly of and parallel to the southerly boundary of the premises conveyed by this deed across the end of the way to eliminated; as shown in the shaded area on plan attached hereto marked Exhibit “A”, the forty (40’) foot-wide buffer zone is to be forever kept open and unimproved and substantially in its natural vegetative state. The Grantee will remove fallen limbs and maintain the same. Landscaping may be done by the Grantee with the assent of the Grantors. Trimming the tops of trees may be allowed by mutual consent of the Grantors and Grantee, which consent will not be unreasonably withheld, located within said forty (40’) foot strip to a top of the tree level not below sixteen (16’) above mean water as delineated By a dotted line marked “Trim Line” on Exhibit “A” attached hereto being, a line ten (10’) feet west of and parallel to the westerly face of the Grantors’ premises which trees are on the westerly side of the line.”

The Saracenos constructed a dwelling on their parcel in 1987. Shortly thereafter, they began to utilize an area within the Buffer Zone as an overflow parking lot. [Note 6] The parking lot, deemed by the parties as a “parking area” (Parking Area), is alongside and partially encompasses the driveway reserved by the grantors. [Note 7] It is located more than twenty feet from the rear of the Saracenos’ garage. [Note 8] The Parking Area can accommodate four motor vehicles. It is presently surfaced with crushed stone or pea stone and is bordered by a timber retaining wall on three sides. [Note 9] On the far side of the Parking Area, there is a set of wooden steps and a lamppost. [Note 10] Located a several feet from the Parking Area driveway lies a landscaped island with a lamppost. [Note 11] Shortly beyond the landscaped island, the reserved driveway merges with the circular driveway leading to Saraceno’s home, and becomes Bayberry Way, a private road over which the defendant has a deeded right of way. At that point, Saraceno has constructed two stone columns, on opposite sides of Bayberry Way [Note 12] denoting the boundary of her property. [Note 13] All of the above referenced improvements are located within the Buffer Zone.

By deed dated April 15, 1993, the Tullys conveyed 175 Bayberry Way, a waterfront parcel of registered land, to the Stepanians. [Note 14] The Stepanians used the existing residence and the reserved driveway through the Buffer Zone from 1993 to 1996. In 1996, they commenced construction of their new residential dwelling on the property. [Note 15] The said dwelling was completed in 1998, and included a reconfigured [Note 16] driveway wholly contained within the Stepanian property, traveling from Bayberry Way to the new house. [Note 17] The Stepanians own the fee in Bayberry Way. [Note 18]

Summary Judgment Standard

Summary judgment is to be granted when "pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ, P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that it deserves a judgment as a matter of law. 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. Hogan v. Riemer, 35 Mass. App. Ct, 360, 364 (1993). A corollary to the moving party's burden is that the court is to "make all logically permissible inferences" from the facts in the non-moving party's favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).

Mass R. Civ. P. 56 (c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon a judicial determination of a question of law. For summary judgment to enter. the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved.

With respect to the issues as to whether 1) the private restriction created by deed is unlimited as to time; and 2) the improvements within the Buffer Zone are protected by the statute of limitations under G.L. c. 184 §23A, the underlying facts are undisputed. As a consequence, this case is ripe for summary judgment.

Discussion

G. L. c. 184, s. 23

Saraceno argues that the restriction contained in the deed is unlimited as to time, and, as such, is subject to the thirty year limitation specified in G.L. c.184, §23.

The pertinent language of Section 23, is as follows:

Conditions or restrictions, unlimited as to time, by which title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument…creating them…. Under the Saraceno interpretation, the restriction would expire on December 9, 2015, after a term of thirty years. For their part, the Stepanians contend that the restriction contains an express limitation and may not therefore be construed as unlimited as to time. Such an interpretation would implicate the extension provisions of G.L. c. 184, §27. [Note 19]

“A ‘restriction on the use of land’ is a right to compel the person entitled to possession of the land not to use it in specified ways. The restriction may be imposed by a negative easement, by an equitable servitude or by a covenant running with the land. But the holder of such a restrictive right has no right to use the land on which he holds the restriction as he would if he held an affirmative easement.” Labounty v. Vickers, 352 Mass. 337 , 347-348 (1967) (internal citations omitted). Restrictions on land are disfavored, and the “Legislature has maintained this policy by limiting the duration of restrictions that are unlimited as to time.” Stop & Shop v. Urstadt Biddle, 433 Mass. 285 , 290 (2001).

“The evident purposes of the statute [G.L. c. 184, s. 23] was to terminate restrictions that have been in force thirty years, unless it appeared in the instrument creating them that they were to run for a definite term of years, or until the happening of an event certain to occur. The word ‘unlimited’ means without confines, unrestricted, boundless.” Flynn v. Caplan, 234 Mass. 516 , 520 (1920). Correspondingly, restrictions, unlimited to time, have a set duration of thirty years under §23, and cannot be extended under §27. Stop & Shop v. Urstadt Biddle, 433 Mass. at 288-289.

G.L. c. 184 §27 allows an extension of the period of enforceability up to twenty years at a time, so long as the “ instrument imposing the restriction provides for a period of enforceability in excess of thirty years, and the specified period is not ‘unlimited.’ ” E.C. Mendler, Massachusetts Conveyancers’ Handbook §15:14. (4th ed. 2008).

As noted supra, the relevant language in the deed is as follows: “said restrictions shall remain in full force and effect for a period of thirty (30) years from the date of the deed conveying the same and may be extended for successive periods of twenty (20) years in accordance with the provisions of the General Laws.” In the case at bar, while the extensions are defined in terms of twenty year periods, there is no limitation on the number of extensions that may be secured. It follows then, that the length of the restriction is without limitation.

The above cited case of Flynn v. Caplan, 234 Mass. 516 (1920) is instructive. In Flynn, the Supreme Judicial Court had occasion to apply the then current iteration of §23 [Note 20] to determine the enforceability of a private restriction for the benefit of the City of Boston. The restriction there at issue prohibited certain types of business and set specifications for any buildings constructed on the land which abutted a City roadway and walk alongside a park. The relevant language in Flynn is as follows: “The restrictions above set forth shall continue in force so long as such roadway and walk be maintained by said City of Boston…” The Court concluded that “[t]he city of Boston may maintain the roadway and walk forever or for a lesser period, in accordance with the determination of the city. The restriction may therefore be unlimited as to time because the city may never cease to maintain the roadway and walk; and in any circumstance it is terminable upon the happening of an event not certain to come to pass and hence it is not protected against termination at the expiration of thirty years prescribed by the statute.” Id. at 521.

The facts in the present matter are analogous to those in Flynn. The restriction in the Saraceno deed is not terminable upon a particular date or an event certain to occur. Rather, the termination of the restriction is dependent primarily upon the failure to seek an extension, a wholly indeterminate factor “that is not certain to come to pass.” Consequently, it is not protected against termination “at the expiration of the thirty year period….” Id. Insofar as such circumstance are as likely as not to occur, such scenarios do not rise to the level of certainty discussed by the Court in Flynn. Happenstance is not to be equated with certainty. As there is no express limitation on the duration of the restriction nor is there any stated endpoint, this court is satisfied that the restriction is unlimited as to time and therefore subject to §23. The restriction will cease to be enforceable as of December 9, 2015, thirty years from the date of its creation. It may not be extended thereafter.

G.L. c. 184 §23A

General Laws c. 184 §23A sets forth a six year statute of limitations made applicable to certain types of restrictions. Section 23A provides in relevant part as follows:

No action, suit, or proceeding shall be maintained either at law or in equity in any court to recover damages or to compel the removal, alteration, or relocation of any structure by reason of any violation of any private restriction or condition in the nature of a restriction by which the use of real property is affected in regard to: (a) building set-back requirements from front, side, or rear property lines, (b) the size, type, number of dwelling units, or number of stories of any structure, (c) the addition of any porch, garage, sign, bay window or similar addition, or the location or construction of any driveway, fence or wall, or (d) the materials used or the expenditures made for construction, unless such action, suit, or proceeding is commenced within six years next after the completion of such building, addition, or other construction.

Saraceno argues that the improvements within the Buffer Zone are subject to the six year limitation of G.L. c. 184 §23A inasmuch as (a) they are all structures, (b) that the Buffer Zone is a building set-back from front, side, or rear property lines, or alternatively (c) that the Parking Area is a driveway within the meaning of the statute. The defendant further argues that all of the improvements were constructed more than six years prior to the inception of this litigation. However, the court finds the defendant’s arguments in this regard, unpersuasive. Moreover, there are contested issues of fact regarding the construction completion date of the improvements at issue. For reasons to be discussed infra, the said completion dates are not material for the purposes of this analysis.

The language of a statute "is the principal source of insight into Legislative purpose." Commonwealth v. Lightfoot, 391 Mass. 718 , 720 (1984); Hoffman v. Howmedica, Inc., 373 Mass. 32 , 37 (1977). "Where the language of a statute is clear, courts must give effect to its plain and ordinary meaning and the courts need not look beyond the words of the statute itself." Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640 (2000); LeClair v. Norwell, 430 Mass. 328 , 335 (1999); Pyle v. School Committee of S. Hadley, 423 Mass. 283 , 286 (1996). Nevertheless, a court may consider the “cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Moloney v. Boston Five Cents Savings Bank FSB, 422 Mass. 431 , 433 (1996); Telesetsky v. Wight, 395 Mass. 868 , 872-873, (1985).

The structures encompassed under section 23A are of a highly circumscribed nature. That section precludes the maintenance of any legal action to compel the removal, alteration or relocation of any structure six years after its construction so long as the said structure falls within the following explicitly described parameters. Thus, the relevant restriction must relate to the “use of real property… affected in regard to” (1) building set back requirements, (2) dwelling units or the number of stories “of any structure,” [Note 21] (3) a violation of the restriction through the addition of any porch, garage, sign, bay window or similar addition, or the location or construction of any driveway, fence or wall, or (4) the expenditures made for construction.

The Saracenos contend that the restriction falls within the statute because the Buffer Zone is tantamount to a building set back. The Stepanians, in turn, maintain that the restriction at issue is a conservation restriction, meaning that it sets aside an area of land to be left in its natural state, and is not a restriction creating a building set-back within the meaning of §23A (a). This court concurs with the plaintiff, insofar as it concludes that that the primary purpose of the restriction is not to establish a building setback, but rather to maintain the buffer zone in a natural and open state.

A set back is “[t]he minimum amount of space required between a lot line and a building line.” Black’s Law Dictionary (7th ed. 1999). Here, the restriction creates a forty foot wide buffer zone which is “to be forever kept open and unimproved and substantially in its natural vegetative state.” There is prohibited in the Buffer Zone “buildings, additions, structures, fences, planting, or improvements” within the “southerly forty (40’) feet of the premises conveyed in this deed, adjoining the remaining land of the Grantors and being delineated by a line running forty (40’) feet northerly of and parallel to the southerly boundary of the premises conveyed by this deed across the end of the way…”

While the restriction does indeed proscribe structures within forty feet of the lot line, it is evident that the restriction was not intended as a dimensional provision but rather as a use restriction. The prohibition on structures within the Buffer Zone is purely incidental to its primary purpose. See, in this regard, Stampfl v. Zoning Board of Appeals of Norwood, 33 Mass. App. Ct. 354 , 356-357 (1992). The defendants may not, therefore, avail themselves of the protections afforded by section 23A (a).

Saraceno further contends that all of the improvements within the Buffer Zone are structures, and are as such, protected by the statute of limitations. The term “structure” is not defined in the statute. The American Heritage College Dictionary (4th ed. 2002) defines structure as “[s]omething made up of a number of parts that are held and put together in a particular way.” Black’s Law Dictionary (7th ed. 1999) defines structure as “[a]ny construction, production, or piece of work artificially built up or composed of parts purposefully joined together.” The State Building Code 7th defines structure as “that which is built or constructed”. 780 Code Mass. Regs. §202.0. It is clear that “structure,” under any of the definitions supplied, is a broad term, encompassing any number of things “made up of a number of parts that are held and put together in a particular way.”

However, this court is obliged to construe the term “structure” in the context within which it appears. Haas v. Breton, 377 Mass. 591 , 595 (1979) (“A general term in a statute or ordinance takes meaning from the setting in which it is employed.”); Scott v. Board of Appeal of Wellesley, 356 Mass. 159 , 161 (1969). Here, the term is used in a sense that may be easily discerned when read within its contextual setting.

Arguably, the improvements here at issue may be deemed structures in a general sense. The parking area, the lampposts, the stairs and the stone columns [Note 22] may be items “made up of a number of parts that are held and put together in a particular way.” However, the issue is whether these are structures [Note 23] for purposes of a particular statute. This court concludes that they are not. Section 23A section alludes to structures affecting real property by virtue of: (1) building setbacks; (2) the number of dwelling units or building stories; (3) the addition of porches, garages, signs, bay windows or similar additions, i.e. additions accessory to or made directly part of a building; (4) the location or construction of a driveway, fence or wall. Putting aside the parking area for the moment, it is clear that the items at issue simply do not fall within the ambit of section 23A. The foregoing are all related directly to buildings in a way that stairs, lampposts or columns simply are not.

Lastly, the defendant argues that the Parking Area constitutes a driveway for purposes of section 23A (c) Here again, as the term “driveway” is nowhere defined in the statute, the court is directed to principles of statutory construction and must give effect to the plain and ordinary meaning of the words used. Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640 (2000); LeClair v. Norwell, 430 Mass. 328 , 335 (1999); Pyle v. School Committee of S. Hadley, 423 Mass. 283 , 286 (1996). The American Heritage College Dictionary (4th ed. 20002) defines a driveway as a “private road that connects a house, garage, or other building with the street.”

Saraceno reasons that the Parking Area qualifies as a driveway under the statute because a portion of the Parking Area was once part of the original reserved driveway to the Stepanians’ home. [Note 24] The Parking Area is located in the Buffer Zone, a little over 20 feet from the back of the Saraceno’s garage, at the closest point. From there it connects with Bayberry Way, and as the original reserved driveway passes through the Parking Area, it encompasses a portion of it. [Note 25] The Parking Area is separate and distinct from the driveway that connects Saraceno’s home and garage to Bayberry Way. The said Area does not connect the Saraceno dwelling, garage or other building with the street. The Parking Area effectively connects Bayberry Way to itself, and is what it purports to be, a parking lot. Parking lots are separate and distinct from driveways. [Note 26] Therefore, I find that the six year statute of limitations not applicable to the improvements presently at issue.

Conclusion

Based upon the foregoing, this court concludes as follows:

1) The restriction, created by the deed of December 9, 1985, is of unlimited duration. As a matter of law, therefore, is limited to a term of thirty years and may not be extended or enforced beyond December 9, 2015.

2) This action is in no way time barred by the operation of the six year statute of limitations laid out in G.L. c. 184 §23A.

The remaining issues raised by the parties including, for example, enforcement of the restriction under G.L. c. 184 §30; obstruction of the reserved driveway easement; and the overburdening of the roadway easement involve genuine issues of material fact that must await resolution at trial. Accordingly, it is hereby

ORDERED that the defendant’s motion for Partial Summary Judgment as to the expiration of the restrictions is hereby ALLOWED. It is further

ORDERED that the defendant’s motion for Summary Judgment as to the statute of Limitations is hereby DENIED.

SO ORDERED

By the Court (Grossman, J.)