COMMERCIAL WHARF EAST CONDOMINIUM ASSOCIATION v. YOVETTE MUMFORD individually and as a Member of MGM Commercial Wharf LLC, MGM COMMERCIAL WHARF LLC, BOSTON YACHT HAVEN MARINA LLC, GARRON MARKEY individually and as Manager of MGM Commercial Wharf LLC, BOSTON BOAT BASIN LLC, and CHARLES LAGASSE individually and as Manager of Boston Boat Basin LLC.

Introduction

This action, along with its associated contempt proceedings, [Note 1] is one of a long-running series of disputes between the Commercial Wharf East Condominium Association, located on the landward end of Commercial Wharf in Boston (the "Condominium"), and the successive owners of the Boston Yacht Haven Inn & Marina (the "Inn & Marina") [Note 2] located at the Wharf's seaward end, whose sole land access route is by easement over the Condominium's property. That easement runs alongside the Condominium building, through the Condominium's parking areas and driveways, and ends at the Inn building and marina boat slips.

The common thread in each of these disputes is this. The Wharf is a narrow, confined space with its buildings in close proximity to each other, and the Condominium — nearly all, and perhaps now all, residential [Note 3] — is concerned about traffic, safety, noise, and their associated disruptions, actual and potential, on and around its property. The Inn & Marina is a private, for-profit business [Note 4] — at present, a 10 room boutique hotel and boat slips, "[w]here mega-yachts sit majestically on Boston's historic waterfront in an exclusive 100-slip marina [and] newly-renovated deluxe guest suites indulge in every way" [Note 5] — which its current owner, defendant Boston Boat Basin LLC ("Boston Boat"), believes was "underutilized" in the past and is currently in the process of expanding, "focusing totally on the large boat market," boats sixty feet and larger. [Note 6] Because the Inn & Marina directly abuts the Condominium and its sole landward access is through the Condominium property alongside the condominium residences and parking spaces, its activities generate traffic and noise directly affecting the Condominium's residents.

At issue in this case [Note 7] is the interpretation and applicability of (1) various use, access and parking restrictions encumbering the Inn & Marina for the benefit of the Condominium, which were negotiated and agreed-to in resolution of prior litigation between the Condominium and the then-owner of the Inn & Marina property, Modern Continental, and are contained in three written and recorded instruments, [Note 8] (2) the limitations on the use of the Inn & Marina property set forth in the 1997 Variance and Conditional Use Permit Decision issued by the Boston Board of Appeal (hereafter, the "Variance and Conditional Use Permit Decision"), also properly recorded, [Note 9] and (3) the easement over the Condominium's property which provides the Inn & Marina's sole overland access (hereafter, the "Easement"), also properly recorded. [Note 10] Each of them applies to the entirety of the Inn & Marina property – the Inn building, its surrounding areas of the Wharf, and the boat slips and boats on the watersheet. When discussing them below, unless otherwise differentiated, I refer to them collectively as "the restrictions."

When this case was filed, the Inn & Marina was owned by the Mumford defendants. [Note 11] Most of its then-pending issues (primarily, those related to the use of the Inn building and the Inn & Marina-owned parking spaces in front of it) were addressed and resolved in the Memorandum and Order on the Parties' Cross-Motions for Summary Judgment (Sept. 28, 2009) ("SJ Mem. & Order"). The other then-pending issues, insofar as they involved Ms. Mumford or her entities, were later mooted by Ms. Mumford's imprisonment for forgery and uttering a false writing in connection with the loan she obtained to purchase the Inn and Marina, the bankruptcy of the entity in which she had titled the property (MGM Commercial Wharf LLC), the bank's foreclosure of its mortgage, and the subsequent sale at the foreclosure auction to the bank's affiliate 86-87 Commercial Wharf LLC (February 12, 2010), which then conveyed it to defendant Boston Boat Basin LLC (May 14, 2010). [Note 12] What remains are the disputes involving Boston Boat, arising once again from the use of the Inn building, the area around the building, and its parking spaces, but now also reaching to issues regarding activities either on, or associated with, the mega-yachts moored at the Marina. The Condominium has limited its requests for relief to injunctive and declaratory relief in the underlying action, and to contempt or other sanctions for violation of this court's orders in the contempt proceedings. Except for such sanctions, no monetary damages are sought in either the underlying case or the contempt.

Broadly speaking (the details are discussed below), the restrictions (1) regulate deliveries and parking at the Inn & Marina, (2) prohibit its use by ferries, party, cruise, charter, or excursion boats, boats that sell alcoholic beverages, and boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants, (3) prohibit its use as a "function hall", and (4) prohibit its use for "social events, such as, but not limited to, weddings, bar mitzvahs, school dances or holiday parties," except for up to four "special events" per year, open only to "privately invited guests or narrowly targeted audiences," for which the Condominium must be given at least thirty-days prior notice. Like all contracts, their provisions are to be construed together as a single and consistent arrangement, with the intent of the parties gathered from a fair construction of the instruments as a whole. See Crimmins & Peirce Co. v. Kidder Peabody Acceptance Corp., 282 Mass. 367 , 375 (1933). See also Patterson v. Paul, 448 Mass. 658 , 665 (2007); Weston Forest and Trail Ass'n v. Fishman, 66 Mass. App. Ct. 654 , 661 (2006) (restrictions also to be construed "beneficially, according to the apparent purpose of protection or advantage … [they were] intended to secure or promote").

Disputes regarding these restrictions continue to occur despite this court's hope that time, the parties' continuing day-to-day interactions, and the guidance contained in this court's many, many, many prior rulings [Note 13] would lead to the parties reaching reasonable, practical solutions amongst themselves. Most of these disputes arise from Boston Boat's lapses in the supervision of the activities at its site and, more fundamentally, its erroneous assertions, without support in either the restrictions or any of this court's prior rulings, that the limitations on events and functions (1) apply only to those involving the general public and do not apply to those for the owners, crews, and passengers of the yachts tied-up at the Marina slips, [Note 14] the guest-room occupants at the Inn, [Note 15] and the invitees of these individuals, so long as the food and drink provided by Boston Boat is "free", (2) do not apply (with certain exceptions that Boston Boat concedes) to gatherings on the boats moored at the Marina that are organized by the boat owners themselves, no matter how large that gathering might be, (3) do not apply (or, perhaps more precisely, should not be applied) to any gathering so long as it is not noisy or unruly, and (4) are over-ridden to the extent they restrict Boston Boat's maritime-related activities at the Wharf. Each of these arguments fails. As discussed below, the restrictions are fully valid, fully enforceable, and the lines they draw between activities that are permissible, and those that are not, are different from those that Boston Boat asserts. They are a consistent, easily understood whole and, among parties truly committed to working together, are not difficult to understand and apply.

The context in which the parties' disputes are presently before me is this.

Soon after it acquired the Inn & Marina, Boston Boat and its manager, defendant Charles LaGasse, appeared in court and stipulated that they would abide by the restrictions and the court's prior orders interpreting them (see SJ Mem. & Order and the July 23, 2010 Hearing Transcript [Trial Ex. 11] at 24-25). [Note 16] The Condominium alleges that both Boston Boat and Mr. LaGasse have failed to do so, and brought contempt proceedings. So that all of the still-active issues in this case could be brought to final judgment, this court expanded the contempt trial to include all further evidence that the parties deemed necessary to enter such judgment, and the parties offered such evidence.

Based on the testimony and exhibits admitted at the trial, my observations at the view previously taken in this case, my assessment of the credibility, weight and inferences to be drawn from the entirety of that evidence, and the undisputed facts set forth in the Summary Judgment Memorandum & Order, I find and rule as follows.

Facts

"A restriction, like a deed, is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed." Weston Forest and Trail Ass'n, Inc. v. Fishman, 66 Mass. App. Ct. 654 , 661 (2006). I thus begin with the setting, the circumstances, the prior lawsuits, and the issues in those lawsuits, from which the restrictions arose.

The Case, the Parties, and the Properties Involved

The restrictions concern Commercial Wharf in Boston, constructed in the 1830's and located on the downtown waterfront at 84 Atlantic Avenue. The plaintiff is the Commercial Wharf East Condominium Association — the multi-story residential building and surrounding outdoor driveways and parking lots on the landward section of the Wharf. [Note 17] The defendants are the current (Boston Boat) and former (the Mumford defendants) owners of the Inn & Marina at the Wharf's seaward end. [Note 18]

Lot 1 consists of the Inn building at the end of the wharf (built subsequent to the date of the subdivision plan), the small drop-off and parking area immediately in front of that building, the pedestrian areas to the building's sides and back, and the boat slips to the north, east and south of the building and on the south side of the Wharf. The "Steel Building" shown on Lot 1 on Exhibit 3 no longer exists. Both the steel building and the pier on which it was built were removed in connection with the renovation of the property in 1998 when the Inn building was constructed and the boat slips rebuilt and reconfigured. Boston Boat has since modified the interior of the Inn building and reconfigured the boat slips yet again.

At issue in the case is the interpretation and applicability of the restrictions, which are as follows:

(1) the various use, access and parking restrictions encumbering the Inn & Marina for the benefit of the Condominium, appurtenant to and binding upon those properties, which were negotiated and agreed-to in resolution of prior litigation between the Condominium and the then- owner of the Inn & Marina property, Modern Continental, and are contained in the Declaration of Covenants and Restrictions (Nov. 5, 2003), the Declaration of Agreements, Covenants and Restrictions (Nov. 5, 2003), and the Amendment to Declaration of Agreements, Covenants and Restrictions (Aug. 29, 2005), each of which is duly recorded at the Suffolk County Registry of Deeds, [Note 19]

(2) the limitations on the use of the Inn & Marina set forth in the 1997 Variance and Conditional Use Permit Decision which allowed its construction, [Note 20] and

(3) the Easement over the Condominium's property which provides the Inn & Marina's sole overland access. [Note 21]

Each of these is applicable to and binding upon the entirety of the Inn & Marina property— the Inn building, the area around that building, the Marina boat slips, and the associated watersheet, all of which are part of "Lot 1" as shown on Exs. 3 & 4. [Note 22]

At the time the case was filed, the Inn & Marina was owned by defendant Yovette Mumford and her related entities — defendants MGM Commercial Wharf LLC, Boston Yacht Haven Marina LLC, and Commercial Wharf Marina LLC — and managed by Ms. Mumford and her son, defendant Garron Markey. Now, since the bankruptcy of MGM and the subsequent mortgage foreclosure sale, it is owned and operated by defendant Boston Boat Basin LLC, which is managed by defendant Charles LaGasse.

The Development of Commercial Wharf and the Origin of the Easement

Commercial Wharf is a narrow, confined area containing the Condominium and its parking lots, two restaurants on the Atlantic Avenue edge of the wharf, small office buildings on the south side of the Wharf, and the Inn & Marina at the end of the Wharf, all in close proximity to each other. Cars, trucks and delivery vehicles can only get onto, around, and off the Wharf by using the narrow driveway (owned by the Condominium) that circles the Condominium building. Traffic and parking on the Wharf (including its volume, entry, exit and circulation patterns) are thus of great importance to the Condominium and its residents. See Commercial Wharf East Condo. Ass'n, 407 Mass. at 134, n.5 (noting that Commercial Wharf has "unique circumstances" that fully justify a high degree of control over both traffic and parking).

The Wharf has been in existence since at least the 1830s, [Note 23] but its current configuration began with its purchase, in considerably dilapidated condition, by the Blue Water Trust in 1967. See Commercial Wharf East Condo. Ass'n, 407 Mass. at 125. The Trust rehabilitated the granite block warehouse on the landward side of the Wharf and, in 1978, turned the warehouse into condominium units and established the Condominium. See id. The Trust "originally intended to put only the granite building into condominium ownership and to retain the remainder of the wharf in its own name, but learned, however, that such a plan would violate the floor-area requirements of the Boston Zoning Code." Id. Accordingly, to address this issue, the Trust granted the Condominium both the granite building and the driveway and parking area immediately surrounding the building, and retained the balance of the Wharf for itself. See id. This retained portion of the Wharf (the "retained land" – basically, everything but the Condominium) could only be accessed by going over the Condominium's parking and driveway area. See id. at 127; Exs. 1, 2, 3 & 4. The Trust therefore created and recorded the Easement for such access immediately prior to recording the Condominium master deed. Commercial Wharf East Condo. Ass'n, 407 Mass. at 125.

The Easement expressly benefits all of the retained land (including Lot 1) and states that the Condominium property is subject to:

the non-exclusive right and easement to use the Condominium Land for vehicular and pedestrian access to the Retained Land for all purposes over the area shown as "Parking and Driveway" . . . including the right . . . to control and collect fees for the parking of vehicles in such area, subject to the right reserved to the owners of the Condominium Land to have adequate vehicular and pedestrian access to the Condominium building.

Easement at 1, ¶ 1(a). In 1990, the Supreme Judicial Court interpreted the scope of the rights retained by the Trust pursuant to that Easement and held that they included the right to manage and control the parking and driveway area and the power "to control and collect fees." Commercial Wharf East Condo Ass'n, 407 Mass. at 132-136.

Subsequent to the recording of the Easement and the establishment of the Condominium, the Trust subdivided and sold the retained land as individual lots, including Lot 1 (now the Inn & Marina). See id. at 126-27. Lots 4, 5 and 6, together with the right to control parking in the parking and driveway area (the Easement's "management rights"), were sold to Waterfront Park Limited Partnership. See id. at 126, 132. The Condominium subsequently purchased both Lots 4 and 5 and the Easement's management rights from Waterfront Park, and owns those lots and rights today. [Note 24] Pursuant to the Easement, the owners of Lot 1 and the other lots of the retained land have the right to pass and repass over the parking and driveway portion of the Condominium Land, subject to the Condominium's right to manage and control the parking and driveway area and collect fees for its use. See Commercial Wharf East Condo Ass'n, 407 Mass. at 132-36.

The Variance and Conditional Use Permit, the First (1997) Settlement Agreement Between Modern Continental, the Condominium, and the DEP, and the Construction of the Inn & Marina

Modern Continental purchased Lot 1 in December 1991 [Note 25] and, shortly thereafter, proposed extensive renovations to "improve and expand the existing marina facility." Variance and Conditional Use Permit Decision at 2-3. These renovations involved the removal of two existing piers and an 11,000-square-foot, metal-framed building (the "steel building" referenced in n.18, supra) and the construction of a new pier, a proposed new marina service building, and new pile-held floating docks. [Note 26] See id. Doing this required a Variance and Conditional Use Permit from the City of Boston, [Note 27] Article 31 approval from the Boston Redevelopment Authority ("BRA"), [Note 28] and a Chapter 91 license from the Department of Environmental Protection ("DEP"). See id. The Condominium, concerned about the impacts of the proposed uses of the renovated marina and its proposed new service building, [Note 29] was closely involved in each of these administrative proceedings, including filing a formal opposition to the DEP license application and a subsequent adjudicatory appeal.

The issuance of the Variance and Conditional Use Permit required a number of explicit findings by the Boston Board of Appeal, including the findings "[t]hat the granting of the variance will be in harmony with the general purpose and intent of [the Boston Zoning] Code and will not be injurious to the neighborhood or otherwise detrimental to the public welfare," "[t]he specific site is an appropriate location for such use," "[t]he use will not adversely affect the neighborhood," "[t]here will be no serious hazard to vehicles or pedestrians from the use," and "[n]o nuisance will be created by the use." Variance and Conditional Use Permit Decision at 4-5. The Board was careful to describe the subsidiary facts on which it based these findings including, most importantly, the parameters of the project as represented by Modern Continental and relied upon by the Board. These included the following findings:

A new two-story building . . . will be constructed on the new pier to provide support services for the marina facility. The building will contain a marina chandlery and supply store, marina office, captain's quarters, showers, laundry facilities, restrooms, and a marina food service facility. . . .

The marina will be accessed predominately by boat via the harbor, or by pedestrian access from Atlantic Avenue. A vehicle turn-around and parking area will be provided at the landward end of the new pier adjacent to the building as an accessory use for the convenience of marina users. Marina users will drop off guests and supplies at the pier and park off-site. Six parking spaces will be provided on the pier for transient and employee parking related to marina services.

Id. at 2-3 (emphasis added). Prior to the Mumford defendants' purchase, there were only six parking spaces on Lot 1. Aff. of Yovette Mumford at 14, ¶ 24 (Jul. 13, 2006).

Negotiations between the Condominium and Modern Continental regarding Lot 1 continued even after the issuance of the Variance and Conditional Use Permit [Note 30] and the two ultimately negotiated a Letter of Intent and a "Declaration, Covenant and Notice of Private Restriction" regarding the Lot's uses, both of which formed the basis of a settlement agreement between the Condominium, Modern Continental and the DEP in 1997 (the "1997 Settlement Agreement"). The Condominium then withdrew its DEP appeal in accordance with that settlement, and the DEP permit was issued in October 1997. Modern Continental began the renovations in 1998. The marina service building (the building now known as the "Inn"), as configured at that time, [Note 31] contained a reception desk, ten small guest rooms, a kitchen area, a first floor business conference room, a laundry room, men's and women's crew lockers and restrooms, and staff space.

The 1999 Land Court Litigation, Modern Continental's Agreement to the Restrictions Set Forth in the Instruments Recorded in Settlement of that Litigation, and the Defendants' Purchase of the Inn & Marina with Knowledge of, and Subject to, those Restrictions

On December 14, 1999, alleging that Modern Continental had repeatedly breached the terms of the 1997 Settlement Agreement in its construction and operation of the new facility, the Condominium brought suit against Modern Continental in the Land Court and sought enforcement of the terms of the agreement and other relief. Commercial Wharf East Condominium Association v. Modern Continental Marine Co, Inc., Land Court Misc. Case No. 260846 (the "1999 Land Court litigation"). That case was ultimately settled and a stipulation of dismissal was filed in accordance with an agreement between the parties. Stipulation of Dismissal (Nov. 24, 2003); Agreement between Modern Continental and the Condominium (Nov. 5, 2003) (the "2003 Settlement Agreement"). Central to the 2003 Settlement Agreement was the termination of the 1997 Letter of Intent and its associated Declaration, Covenant and Notice of Private Restriction, and their replacement with the current Declaration of Covenants and Restrictions (Nov. 5, 2003) [Note 32] and Declaration of Agreements, Covenants and Restrictions (Nov. 5, 2003), [Note 33] both of which were exhibits to the 2003 Settlement Agreement. See 2003 Settlement Agreement at 1-26, Exs. G & H. Both of these instruments were signed by the Condominium and Modern Continental, both recited that they "shall be appurtenant to and benefit the Condominium Land and shall encumber and run with Lot 1 [the Inn & Marina property]," and both were duly recorded at the Suffolk County Registry of Deeds. [Note 34] The Declaration of Covenants and Restrictions, the Declaration of Agreements, Covenants and Restrictions, and the Amendment to the Declaration of Agreements, Covenants and Restrictions (also recorded, [Note 35] and which also encumbered and ran with Lot 1), were all known to both the Mumford defendants and the Boston Boat defendants at the times of their respective purchases of Lot 1. See Deed, Modern Continental Marine Co. Inc. to MGM Commercial Wharf LLC (Sept. 9, 2005); Deed, 86-87 Commercial Wharf LLC to Boston Boat Basin LLC (May 14, 2010), and n. 16, supra.

I now turn to the specifics of their restrictions.

The Declaration of Covenants and Restrictions

The Declaration of Covenants and Restrictions places explicit limitations on the use of Lot 1, including the following:

1. a. The current kitchen area on the first floor of the building on Lot 1 (the "Building") may be used as a year round catering and commissary operation to provide food to registered guests of the guest rooms in the Building (the "Rooms"), Boston Yacht Haven boating customers and their guests (collectively, said registered guests, Boston Yacht Haven boating customers and their guests are referred to herein as the "Customers") and for catering of off-site events. . . . The Declarant may provide catered meals, beverages, food, snacks, and room service to the Rooms, all of which may be prepared in the Building in conjunction with the operation of the Conference/Meeting/Office Center in the Building and the Rooms. The Rooms (the number of which will not exceed ten (10) on the second and third floor of the building) shall not be utilized by anyone for preparation or consumption of food for anyone other than the occupants. . . . Declarant [Note 36] further agrees that it will not apply for or exercise an entertainment license for the first floor of the Building or any other area on Lot 1. . . . The Declarant will not install tables on the existing pier on Lot 1 for consumption of food or beverages[.]

b. Lot 1 (including any building or structure thereon) shall not be used (i) as a function hall or (ii) for social events, such as, but not limited to, weddings, bar mitzvahs, school dances or holiday parties, provided however that up to four (4) special events per year open to privately invited guests or narrowly targeted audiences only may be conducted in the first floor and common areas of the building located on Lot 1 after notice to and approval of the Condominium Association (which approval shall not be unreasonably withheld or delayed) and which notice shall be delivered to the Condominium Association at least thirty (30) days prior to any such event. The Condominium Association agrees to notify the Declarant [defined as Modern Continental, together with its successors and assigns] of such approval or disapproval within ten (10) days after receipt of notice of such event. The Declarant agrees that the number of persons at such events shall not exceed the occupancy limits, in effect from time to time, of the first floor and common areas of the Building. . . .

c. Lot 1 (including any building or structure thereon) shall not be used for gambling or gaming activities except that any private, social game with no more than six participants will not be deemed a violation of these Covenants and Restrictions[.]

d. Lot 1 (including any building or structure thereon) shall not be used in any way, such as servicing, embarking, or disembarking, loading or unloading, for any of the following uses: (i) party/cruise/charter/excursion boats with a maximum capacity of thirty-five (35) people or more (party /cruise/ charter/ excursion boats being boats that offer access to a vessel, food, alcoholic beverages (including beer and wine) and service for a daily fee); (ii) boats with licenses to sell any alcoholic beverage, including beer and wine; (iii) boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants; or (iv) ferries or any other boats or vessels providing transportation to the public (other than unscheduled water taxies carrying not more than four passengers); provided, however, that paragraphs (d)(i) through d(iv) shall not prohibit the storage of boats described therein so long as such boats are not used, operated or moored on Lot 1 for any use prohibited by the foregoing clauses (d)(i) through d(iv)[.]

e. All loading and unloading of routine commercial deliveries to Lot 1 shall occur on Lot 1 and not on the Condominium Land[.]

f. The Declarant and all persons and entities claiming by, through or under the Declarant shall comply, in the use of Lot 1 and access thereto through and over the Condominium Land, with all rules and regulations adopted from time to time by the Condominium Association concerning the administration of parking and traffic flow on the Condominium Land, which rules and regulations shall not impose greater fees, charges or obligations on, or grant lesser rights to, the Declarant and those persons and entities claiming by, through or under the Declarant than the fees, charges or obligations imposed on, or rights granted to, other commercial entities with access to or over the Condominium Land.

Declaration of Covenants and Restrictions, ¶1 at 1-3.

Modern Continental (and its successors and assigns) [Note 37] "acknowledge[d] and agree[d] that the use restrictions and use limitations contained in [the Declaration of Covenants and Restrictions] are of actual and substantial benefit to the Condominium Association," that "any alleged breach of this Declaration or any other contract between the parties, or any alleged over burdening of any easement or right benefiting Lot 1 or the Condominium Land, as applicable, may be addressed by an action seeking monetary damages and/or injunctive relief," that "[n]o failure by the Declarant or the Condominium Association to insist upon strict performance by the Declarant of the Covenants and Restrictions shall be deemed to be a waiver thereof," and that "[t]he failure of the Declarant or the Condominium Association to exercise any right or remedy hereunder shall in no event be construed as a waiver or release thereof nor shall the choice of one remedy be deemed an election of remedies to the exclusions of other remedies." Id. at 4 ¶¶ 4.a, 4.c; 5, ¶ 8.

For its part, "[t]he Condominium Association acknowledge[d] and agree[d] that [Modern Continental and its successors and assigns]'s right to park on, to have access across, and to install, utilize and maintain utilities in, on, under and through Lot 1 and the Condominium Land, as described in the [2003 Settlement Agreement], in recorded title documents, and in the [Declaration] are of actual and substantial benefit to Modern Continental." Id. at 4, ¶ 4.b.

Importantly, "the Condominium Association and Modern Continental acknowledge[d] that parking on the Condominium Land and parking on Lot 1 will comply with applicable City of Boston and Commonwealth of Massachusetts ordinances and laws." Id. at 5, ¶ 4.d. And, as previously noted, Modern Continental explicitly declared that "Lot 1 shall be held, transferred, sold, conveyed and occupied subject to and with the benefit of" all these restrictions and limitations. Id. at 1; see also id. at 4, ¶ 3 (Declaration of Covenants and Restrictions "shall be appurtenant to and benefit the Condominium Land and shall encumber and run with Lot 1").

The Declaration of Agreements, Covenants and Restrictions

The Declaration of Agreements, Covenants and Restrictions addresses the Inn & Marina's access and parking rights on both its own property (Lot 1) and Commercial Wharf generally, modifying all previous agreements. See Declaration of Agreements, Covenants and Restrictions at 1; 2, ¶ 2. Like the Declaration of Covenants and Restrictions, it was entered into by the Condominium and Modern Continental "for themselves and their successors and assigns." Id. at 1. The parties agreed that the Declaration of Agreements, Covenants and Restrictions "shall be appurtenant to and benefit the Condominium Land and shall encumber and run with Lot 1." Id. at 6, ¶ 3. Also, like the Declaration of Covenants and Restrictions, the parties agreed "that parking on the Condominium Land and parking on Lot 1 will comply with applicable City of Boston and Commonwealth of Massachusetts ordinances and laws." [Note 38] Id. at 7, ¶ 4.d.

The Declaration also outlined, in great detail, the following relevant rights and restrictions:

1. Traffic Flow and Rules and Regulations. … During any special event described in Paragraph 1(b) of the Declaration of Covenants and Restrictions recorded herewith,[ [Note 39] ] Modern Continental will consult with the Condominium Association and provide appropriate traffic control and security on Lot 1 at its own expense as necessary. Modern Continental will comply with all rules and regulations adopted by the Condominium Association from time to time concerning administration of parking and traffic flow on the Condominium Land, which rules and regulations shall not impose greater fees, charges or obligations on, or grant lesser rights to, Modern Continental and those persons and entities claiming by, through or under Modern Continental, or conflict with the rights and obligations set forth herein, than the fees, charges or obligations imposed on, or rights granted to, other commercial entities with access to or over the Condominium Land.

2. Parking on Commercial Wharf. Modern Continental and the Condominium Association hereby agree, with regard to parking on Commercial Wharf and Lot 1 as follows:

a. Without intending to grant or create any new rights, the parties confirm and agree that the owner of Lot 1 has rights to nonexclusive licenses for eight parking spaces on the Condominium Land for the eight long term slip lessees commonly known as so-called "dockominium" owners and successor holders of these slip leases . . . and eighteen other nonexclusive licenses for parking spaces on the Condominium Land. . . . Subject to Paragraph 2(g) below, occupants of the guest rooms in the building on Lot 1 and other Boston Yacht Haven boating customers and their guests (collectively, such occupants of the guest rooms, Boston Yacht Haven boating customers and their guests are referred to herein as the "Customers") will have the right to pass and repass, at no cost, over the Condominium Land and to park private passenger vehicles on Lot 1 as set forth herein. . . . The owner of Lot 1 will give a daily list of room occupants to the guard at the parking booth on the Condominium Land and those room occupants will be subject to the access system described in Paragraphs 2(b) and 2(d) below.

b. The Condominium Association hereby acknowledges that Modern Continental has the right to park vehicles on the surface of Lot 1 (of which four (4) vehicles may be vans, minivans, station wagons, SUV's or automobiles used in connection with catering operation). In no event shall heavy construction equipment be parked on Lot 1 except as needed for repairs, reconstruction or renovation. Owners of service vehicles, repair vehicles and other vehicles related to uses permitted on Lot 1 shall not be required to pay any parking fee to the Condominium Association for said vehicles to access and park on Lot 1.

* * * *

g. In addition to its deeded rights to nonexclusive licenses for parking on Condominium Land, Modern Continental may utilize its right of access to Lot 1 over Condominium Land to the following extent and such use shall be subject to the following limitations: (i) not more than one commercial pick up and delivery at any one time plus not more than four catering vehicles (which may be vans, minivans, station wagons, SUV's or other automobiles) plus Federal Express, United Parcel Service, United States Post Office or similar delivery vehicles, (ii) for pick up and drop off of or by Customers but not to exceed six drop offs or pick ups at any one time, (iii) for rubbish removal from Lot 1, and (iv) subject to the above limitations, for other necessary purposes in connection with its operation, maintenance or ownership of Lot 1 and the improvements thereon and the minor maintenance of vessels berthed at Lot 1. Such drop offs, pickups and deliveries under subpart (ii) hereof shall not, however, remain on Lot 1 for longer than thirty (30) minutes. . . . With respect to any deliveries as permitted herein, no deliveries will be made before 8:00 a.m. on weekdays or before 9:00 a.m. on weekends and legal holidays enumerated in the Condominium Association's rules and regulations and, except in emergencies, no commercial deliveries will be made on Sunday. The parties agree to revisit and discuss the number of pick ups and drop offs allowed at any one time (six) under subpart (ii) to see if, given experience over time, such number should be increased or reduced.

Id. at 2-5 (emphasis added).

In substantially identical fashion to the Declaration of Covenants and Restrictions, Modern Continental "acknowledge[d] and agree[d] that the use restrictions and use limitations contained in [the] Declaration [of Agreements, Covenants and Restrictions] are of actual and substantial benefit to the Condominium Association," that "any alleged breach of this Declaration or any other contract between the parties, or any alleged over burdening of any easement or right benefiting Lot 1 or the Condominium Land, as applicable, may be addressed by an action seeking monetary damages and/or injunctive relief," that "[n]o failure by Modern Continental or the Condominium Association to insist upon strict performance of [the] Declaration shall be deemed to be a waiver thereof," and that "[t]he failure of Modern Continental or the Condominium Association to exercise any right or remedy hereunder shall in no event be construed as a waiver or release thereof nor shall the choice of one remedy be deemed an election of remedies to the exclusions of other remedies." Id. at 6, ¶ 4.a; 7, ¶¶ 4.c, 8. And again, for its part, the Condominium "acknowledge[d] and agree[d] that Modern Continental's right to park on, to have access across, and to install, utilize and maintain utilities in, on, under and through Lot 1 and the Condominium Land, as described in the [2003 Settlement Agreement], in recorded title documents, and in the Declaration of Covenants and Restrictions between Modern Continental and the Condominium Association recorded herewith are of actual and substantial benefit to Modern Continental." Id. at 6, ¶ 4.b.

The Amendment to Declaration of Agreements, Covenants and Restrictions

As noted above, the Declaration of Agreements, Covenants and Restrictions contained a provision that allowed Modern Continental to purchase up to ten daily coupons for its customers to park in the Condominium's lots. See id. at 3, ¶ 2.c. That provision was modified by the Amendment to Declaration of Agreements, Covenants and Restrictions (Aug. 29, 2005, recorded Sept. 6, 2005), which provided that, "[u]pon the sale of Lot 1 by Modern Continental to anyone other than an entity owned, in whole or in part, directly or indirectly, by Modern Continental Construction Co., Inc. or Modern Continental, Section 2(c) of the Declaration shall no longer be binding upon the Condominium Association." See Amendment at 1, ¶ 2. The remainder of the Declaration was "ratified, confirmed and approved in all respects." Id. at 1, ¶ 4. Thus, when Modern Continental sold the Inn & Marina to the Mumford defendants, the Condominium's obligation to sell these daily coupons ceased. Amendment at 1, ¶ 2.

The Mumford Defendants' Purchase and Operation of the Inn & Marina

The Mumford defendants acquired the Inn & Marina from Modern Continental on September 9, 2005, "subject to and with the benefit of all easements, restrictions, covenants and other instruments of record to the extent the same are applicable and in force and effect." Deed, Modern Continental Marine Co., Inc. to MGM Commercial Wharf LLC, Suffolk County Registry of Deeds, Book 38018, Page 217 (Sept. 9, 2005) at 1.

As described in the SJ Mem. & Order (Sept. 28, 2009), the details of which need not be repeated here, the Mumford defendants violated the restrictions on numerous occasions in numerous ways, including regularly parking more than six vehicles at a time on the Inn & Marina lot, holding wedding and museum receptions, large birthday and other parties, corporate and law firm gatherings, and other social events and functions without first seeking or obtaining the Condominium's assent, and holding more events than the four per year the restrictions permit if assent is obtained. See SJ Mem. & Order at 39-43. The SJ Mem. & Order declared them to be violations.

In light of Ms. Mumford's imprisonment and the bankruptcy of her entities, with the sole exception of the declaratory relief it was granted in the SJ Mem. & Order, the Condominium has now withdrawn all of its claims against the Mumford defendants. All damage claims by the Condominium against the Mumford defendants have thus been dropped. Of continuing importance in the case, however, for both their substance and the Boston Boat defendants' commitment to abide by them, are the court's various rulings on the interpretation and applicability of the restrictions to activities at the Inn & Marina. These are set forth, and supplemented to address the new issues presented by Boston Boat's activities, in the analysis section below.

The Boston Boat Defendants' Purchase and Operation of the Inn & Marina

Boston Boat and its Manager, Charles LaGasse, are the developers, owners and operators of a series of marinas along the East Coast of the United States and in the Caribbean. They specialize in serving the large boat market — boats 60' to 300' or larger, with crews of five, ten, or more in addition to their passengers [Note 40] — and bought the Inn & Marina in May 2010 with a five-year plan to develop and expand its "mega yacht" usage. [Note 41] They were fully aware of the restrictions encumbering the Inn & Marina, this litigation, and the rulings in this litigation, at the time of that purchase.

In accordance with its plan to serve the large boat market and the crews of those boats, [Note 42]

Boston Boat made a series of changes to the Inn & Marina. These included:

* modifications to the boat slips to accommodate more numerous and larger boats.

* reducing the size of the kitchen in the Inn building.

* installing a gym and exercise machines in the space no longer used by the kitchen for the boat crews to use.

* constructing new locker rooms and showers for the boat crews to use.

* converting the former Inn dining room into a "Captain's Lounge" where the boat crews could gather and "unwind." This involved discarding its former tables and chairs and replacing them with four or five couches, several small wooden tables and chairs, a coffee maker, internet access, and a "BYOB" bar area. [Note 43] Boston Boat provides free coffee and muffins in the Lounge each morning.

* installing locked, electronic-access only gates to all of the boat slips, and making the doors to the Inn electronic-access only.

* initiating an electronic pass system for all Inn guests and all boats at the marina.

Electronic passes are issued to each crew member and each passenger on every boat (anywhere from two to twenty passes per boat), which the computer individually monitors and are automatically de-activated when the boat's stay at the Marina is over.

* installing fourteen security cameras around the Inn & Marina, covering all gates, doors, and gathering areas.

* employing a 24/7 watchman to monitor all activities at the Inn & Marina.

Between the security cameras, the 24/7 watchman, and the other employees serving the Inn & Marina during regular business hours, [Note 44] nothing happens at the Inn & Marina that its employees and management don't immediately know about. No sub-leasing or transfers of boats between dock spaces are allowed.

Since Boston Boat began operating the Inn & Marina, up to 95 boats have docked there at a time, and over 200 over the course of the 122-day high season. [Note 45] Over 50 of those boats have been over 150' in length, with the largest over 300' (i.e, the size of a football field). The capacity of these "mega-yachts" is often more than the Inn building itself. See Ex. 6. [Note 46]

Ordinary operations in the Inn portion of the property consist of overnight stays by the room occupants, with muffins and coffee in the Captain's Lounge at breakfast time. Ordinary operations in the Marina portion consist of boats coming to, mooring at, or departing from the boat slips; their owners, crews and passengers either staying on the boats, in the Inn's guestrooms, or other places in Boston, while the boats are at the Marina; their owners, crews and passengers using the Inn's showers, locker rooms, gym equipment, and internet, and eating/drinking the breakfast time coffee and muffins as desired; and using the couches, chairs, and BYOB bar in the Captain's Lounge as a place to sit and unwind. Ordinary activities on the boats themselves are the comings and goings of their owners, crew and passengers, and, occasionally, visits by small numbers of off-site guests, all of which are monitored and controlled by the electronic security pass system and the Marina's security cameras. Boston Boat's "rules and regulations" for the Marina specifically direct that "noise shall be kept to a minimum at all times. Patrons shall use discretion, when operating engines, generators, radios and television sets so as to not create a nuisance or disturbance." [Note 47]

Although Boston Boat claims to have discarded "85%" of the outdoor-style light metal tables and chairs that were in the dining room when Ms. Mumford operated the Inn & Marina, they retained at least three of those tables, with four chairs apiece. As the testimony and the photographs admitted into evidence at the trial showed, [Note 48] these metal tables and chairs are regularly carried and placed outside on the Wharf when a function or social event occurs at the Inn & Marina, and guests routinely sit, eat and drink at them at those functions and events, often served by Inn & Marina employees. As Boston Boat well knows, [Note 49] this is expressly prohibited by the restrictions. [Note 50]

The Commonwealth has attempted to put a public Harborwalk around the perimeter of the Wharf for the public to use and view the harbor. The Condominium has constructed the sections of that Harborwalk that are on its property. Boston Boat has refused to construct any Harborwalk sections on its property, opposing all of the Commonwealth's requests to do so, on the grounds that the Harborwalk would interfere with its boat slips.

The Condominium has brought the following activities to the attention of the court as examples of what it alleges to be violations of the restrictions. Seven were the subject of its July 22, 2011 contempt complaint. The others were brought up at trial, and included in its expanded scope. See discussion at p. 7 of this Decision, supra.

August 11, 2010 [Note 51]

On August 11, 2010, Boston Boat gave a party at the Inn & Marina, which it claimed was unadvertised and limited to the boat owners and crews at the marina that day, plus their guests. The Condominium takes issue with this event because it took place without prior notice to the Condominium. Boston Boat claims that no notice was required because the party did not include any "public" (i.e. non-boat owner and crew) invitees. As discussed more fully below, Boston Boat's position is contrary to the restrictions and this event a violation. The violation is mooted, however, by the Condominium's retroactive agreement to treat it as one of Boston Boat's four "special events" in 2010. [Note 52]

March 17, 2011 [Note 53]

On March 17, 2011, with the prior knowledge and permission of Boston Boat's management, [Note 54] Jewish Vocational Services ("JVS") held a "Careers & Beers" speed networking event for young professionals at the Inn & Marina. The event was advertised many days in advance by both flyers posted at the Inn & Marina and in email and other communications by JVS to its members. Between fifty and one-hundred people attended, ages twenty-one to forty, and were there from 6:30 to 8:30 p.m. To get to and from the Inn & Marina, they either walked across the Wharf or rode in cars or taxi cabs through the Condominium parking lots and driveway to be dropped off and picked up at the front door of the Inn. Beer and snacks were served at the event. It took place in the Inn's hallway and Captain's Lounge and, as shown clearly in the photographs of the event, tables and chairs were placed outside and occupied by attendees as they ate and drank. None of the attendees were boat owners or crew, occupants of rooms at the Inn, or their guests.

As Boston Boat admitted at trial, the event was a violation of the restrictions and should never have occurred. See Declaration of Covenants and Restrictions, ¶1.a at 2 ("[t]he declarant will not install tables on the existing pier on Lot 1 for consumption of food or beverages") and ¶1.b at 2 (prohibiting use of Lot 1 as a "function hall" or for "social events", except for four "special events" per year for which the Condominium is given prior notice). The violation was mooted, however, by the Condominium's retroactive agreement to treat it as one of Boston Boat's four "special events" for 2011.

June 7 &/or 9, 2011 [Note 55]

On June 7 &/or 9, 2011, Simrad Yachting — a Norwegian-based manufacturer of autopilots and other marine electronic equipment [Note 56] — held commercial sales events at the Inn & Marina. Although the testimony was not entirely clear, it appears that a Simrad sales representative rented a room at the Inn and set up tables in the Captain's Lounge to display Simrad's products to its dealers. No prior notice was given to the Condominium. The representative also moored a boat at the Marina and, according to Boston Boat's trial testimony, took the visiting dealers on rides to demonstrate the equipment.

Boston Boat claims this was permissible under the restrictions because the events involved a boat owner and its invited guests. This is incorrect. These events were violations. First, as discussed more fully below, events are not outside the restrictions just because they only involve boat owners and their guests. Second, and most directly applicable here, the restrictions prohibit commercial events at the Inn & Marina. See Declaration of Covenants and Restrictions, ¶1.b at 2 (prohibiting use of Lot 1 as a "function hall" or for "social events", except for four "special events" per year, designated as such by the Inn & Marina for which the Condominium is given prior notice). No such notice was given.

June 18, 2011 [Note 57]

On June 18, 2011, Boston Boat gave a "welcome back" customer appreciation dinner and pre-dinner wine tasting for the owners and crews of the boats then docked at the Marina, plus their guests. No advance notice was given to the Condominium. The event was not "last minute." The evidence showed that a flyer advertising the wine-tasting and dinner, to take place from 6-8 p.m., was posted at the Inn & Marina at least five days previously. Boston Boat provided the food and drink at no charge to the attendees, who numbered between twenty and thirty-five people. The wine was delivered by truck from Cellar 55 Wine Merchants. Photographs show the guests arriving and departing both by foot and in cars and taxicabs driving across the Wharf, through the Condominium property, to the front door of the Inn. Food and drink were served both inside the Inn and at tables outside on the Wharf, which were served and cleared by Boston Boat employees.

The event was a violation of the restrictions because of the outdoor tables — expressly forbidden by the Declaration of Covenants and Restrictions, ¶1.a at 2 — and because it was a prohibited "social event" occurring without prior notice and designation to the Condominium as one of the Inn & Marina's four permitted yearly events. See Declaration of Covenants and Restrictions, ¶1.b at 2 and discussion below.

June 21, 2011 [Note 58]

On June 21, 2011, without any prior notice to the Condominium, an event took place at the Inn & Marina ("Beers, boats, and burritos"), which Boston Boat claimed was permitted because it was allegedly limited to a boat owner (Barton & Gray Mariners Club) [Note 59] and the members of its Mariners Club, alleged to be "fractional owners" of that and other B&G boats. [Note 60] This story was proved to be false. According to the testimony of its organizer, Marlo Fogelman of Marlo Marketing Communications, the event was to promote her company (not a boat owner), and the invitee list was her list — "a ‘friends' party for the agency" [Note 61] — with Boston Magazine, Boston Common, and other media representatives in attendance to give it publicity. Narragansett Brewery provided the beer, Anna's Taqueria provided the burritos, and Barton & Gray allowed the invitees to lounge on its boat. The event took place in the Captain's Lounge inside the Inn and on tables set up outdoors on the Wharf, with invitees carrying food and drink onto the tables and all over the Wharf area around the building. [Note 62] The outdoor tables were expressly set up for use, with flower pots placed on them. Fifty people came, by foot, car, and taxicab, and the food and drink were brought by truck from offsite. Barton & Gray did not supply any of the names on the invitation list, and you had to be on the invitation list to be admitted. Marlo Communications later posted pictures of the event on its Facebook page.

The event was a violation of the restrictions because of the outdoor tables — expressly forbidden by the Declaration of Covenants and Restrictions, ¶1.a at 2 — and because it was a prohibited commercial "function" occurring without prior notice and designation to the Condominium as one of the Inn & Marina's four permitted yearly events. See Declaration of Covenants and Restrictions, ¶1.b at 2 and discussion below.

July 4, 2011 [Note 63]

On July 4, 2011, Boston Boat held a Fourth of July "barbeque" for the owners and crews of the boats then docked at the Marina, plus their guests. No advance notice was given to the Condominium. Contrary to Boston Boat's testimony, the event was not "a last minute thing." The evidence showed that a flyer advertising the barbeque was posted at the Inn & Marina at least three to four days in advance. Boston Boat provided hamburgers, hot dogs, beer and side dishes to the attendees at no charge, who numbered between twenty and thirty people. The event took place in the Captain's Lounge and spilled outside. Attendees came not only from the boats, but also (presumably the "guests" — the Wharf was a perfect place to view the fireworks ) from off-site, arriving and departing both by foot and in cars and taxicabs driving across the Wharf, through the Condominium property, to the front door of the Inn.

The event was a violation of the restrictions because it was a prohibited "social event" occurring without prior notice and designation to the Condominium as one of the Inn & Marina's four permitted yearly events. See Declaration of Covenants and Restrictions, ¶1.b at 2 and discussion below.

July 13, 2011 [Note 64]

On July 13, 2011, with no prior notice to the Condominium, the owner of the Silver Cloud, a 134' mega-yacht which had recently arrived at the Inn & Marina for a multi-week stay, threw a party on his boat for fifty or more off-site guests. See Ex. 6. Catering trucks brought a tent, [Note 65] food and drink for the party (the tent was set-up on the aft-deck of the boat), and the guests came and went by foot, taxicab, and private cars, all going through the Condominium parking lots and driveways to get to the boat. At least one of the guests' cars illegally parked in the Condominium's parking spaces. Attendants held open the electronically-controlled gates to the boat slips so that the guests could come and go to the boat unimpeded. There is no evidence that the Silver Cloud left the boat slip at any time during the party, and I thus infer that it did not. In any event, the access and egress impacts would have been the same (the same number of catering vehicles, and the same numbers of cars, taxi cabs, and walkers, would have gone through the Condominium parking areas and driveways). And, with respect to impacts during the party, these would still have been significant even if the boat left the boat slip to cruise since the boat would have been at the slip for the extensive time necessary to gather, board, and disembark the 50 guests, some of whom would inevitably have been early or late, and those guests would have been on the moored boat, eating, drinking, and being entertained, during those times.

The event was a violation of the restrictions because it was a prohibited "social event" occurring without prior notice and designation to the Condominium as one of the Inn & Marina's four permitted yearly events. See Declaration of Covenants and Restrictions, ¶1.b at 2 and discussion below.

July 14, 2011 [Note 66]

On July 14, 2011, with no prior notice to the Condominium, the Silver Cloud threw another party, this time with over thirty off-site guests. Once again, the guests came and went by foot, taxicab, and private cars, all going through the Condominium parking lots and driveways to get to the boat. Once again, attendants held open the electronically-controlled gates to the boat slips so that the guests could come and go to the boat unimpeded. Once again, I infer that the boat did not leave the boat slip during the event and that, even if it did, the impacts on the Condominium were still significant.

The event was a violation of the restrictions because it was a prohibited "social event" occurring without prior notice and designation to the Condominium as one of the Inn & Marina's four permitted yearly events. See Declaration of Covenants and Restrictions, ¶1.b at 2 and discussion below.

Events Not Held by Boston Boat in Recognition That They Would Have Been Violations of the Restrictions

A potential customer approached Boston Boat with a request to hold a Harvard Business School Reunion at the Inn & Marina, and another with a request to hold a 30-40 person birthday party at the property, along with a 7-guest room rental. Boston Boat turned both of them down in recognition that the restrictions prohibit them. [Note 67] Boston Boat also recognizes that, under the restrictions, food and drink at events held at the Inn cannot be taken outdoors, nor tables and chairs upon which food and drink is served or consumed. [Note 68] Further, Boston Boat admits that a boat could not do a one or more day mooring at the Marina for the purpose of holding a wedding reception.

Agreement by the Parties

The parties agree that none of the complained-of events had music or an unruly or boisterous group of people.

Further facts are set forth in the Analysis section below.

Analysis

The Restrictions Are Valid and Applicable to the Inn & Marina

Because Boston Boat challenges the validity of the restrictions generally, and then, more particularly, any aspect of them that curtails any use of the Inn & Marine that it considers "maritime related", I begin by showing why there is no merit to those arguments.

The pending DEP proceedings [Note 69] appear to raise the question of what parts of Commercial Wharf and the tidelands beneath them are "owned" by the parties, and what they are properly "licensed" to do with them. I would have thought (I do think) that this was long-settled [Note 70] – the Wharf statutes date back to the 1830's, and the Condominium has been in residential use for nearly forty years – but it is ultimately irrelevant to the applicability and enforcement of the restrictions at issue in this case. Both the Condominium and the Inn & Marina are private parties, and entirely private uses. There are no public facilities, and certainly no public mooring or other public maritime uses, at the Inn & Marina, which is a private, for-profit, business. Indeed, as it readily concedes, Boston Boat has consistently opposed any extension of the public Harborwalk onto its part of the Wharf, and it has locked the Inn doors and fenced off all its docks, keeping everyone away except for its private, fee-paying customers. The restrictions regulate vehicular access and parking on Commercial Wharf, limit the number and type of functions that Boston Boat can have at its privately-owned Inn & Marina, and prohibits the use of the Marina by commercial party, excursion, and ferry boats. None of these affect public access to the waterfront or the public's right to fish, fowl or navigate. There is thus no "public interest" of any kind at stake in these restrictions which, in the case of the Easement (and thus in reasoning applicable to the remaining restrictions), the Supreme Judicial Court has already found fully enforceable between the parties. See Commercial Wharf East Condo. Ass'n, 407 Mass. at 133-134 (recognizing the appurtenant and binding effect of easements affecting the entirety of Commercial Wharf, including Lot 1 – the Inn &Marina). This is in keeping with long-settled law. Landowners are free to "burden or benefit their land with use restrictions." Stop & Shop Supermarket Co. v. Urstadt Biddle Properties, Inc., 433 Mass. 285 , 288 (2001). See also Patterson v. Paul, 448 Mass. 658 , 665 (2007) ("The terms and conditions under which an easement may be created and the manner of its exercise are within the control of the parties so long as no forbidding principle of law is violated."); Hertz v. Secretary of the Executive Office of Energy and Environmental Affairs, 73 Mass. App. Ct. 770 , 771-776 (2009) (abutters lacked standing "to assert claims of harm to their private property" under harbor plan and trust lands regulations).

Moreover, this argument has already been rejected not only by this court, [Note 71] but also by the Single Justice of the Appeals Court reviewing this court's July 27, 2006 preliminary injunction, who aptly stated, "What I see, as did the motion judge, is the defendants wrapping themselves in the flag of the public interest provisions of G.L. c. 91 and G.L. c. 184, §30 in order to protect a private commercial venture carried on in violation of enforceable deed and permit restrictions." Commercial Wharf East Condo. Ass'n v. Mumford, Appeals Ct. Case No. 06-J-451, Order Denying G.L. c. 231, §118 (first para.) petition from the preliminary injunction (Aug. 31, 2006) (Cowin, J.).

Boston Boat's attempt at narrowing this argument, contending that the restrictions are invalid insofar as they restrict the "maritime-related" use of the Inn & Marina, also fails, for two reasons. First, as between wholly private parties, the law does not prohibit agreements that eliminate particular uses that are otherwise allowed. See the cases cited above. Second, and more importantly, the restrictions do not prohibit all maritime uses, only certain ones. Boston Boat is perfectly free to moor and service boats, provide locker rooms, showers, laundry facilities, and internet service to their owners, passengers and crews, to provide breakfast muffins and a small-group lounge space where the crews can relax and play pool, and to conduct other non-prohibited activities. It is even free to host four large-scale social events per year for those customers and their privately-invited guests, otherwise prohibited under the restrictions, so long as the Condominium is given prior notice and does not reasonably object. "Maritime uses" thus remain. Boston Boat has no public-policy or other right to over-ride the restrictions for anything more. See Fitchburg Gas & Elec. Light Co. v. Dep't of Public Utilities, 467 Mass. 768 , 783-784 (2014) (discussing, in the context of "regulatory takings", that "the mere fact that owners could make a more profitable use of the property and had intended to do so is not sufficient interference with investment-backed expectations" and how regulations that "may deprive an owner of a beneficial property use – even the most beneficial such use – [do not render] the regulation an unconstitutional taking;" the economic impact "must be severe"). See also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992) (re-iterating the court's "frequently expressed belief" that a regulatory taking occurs only "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle") (emphasis in original).

To the extent there is a public interest at stake in this litigation, it is the public interest in enforcing contractual obligations, property rights, and the settlement of lawsuits. Since the defendants derive all of their rights in Lot 1 from Modern Continental (the Mumford defendants by direct deed; Boston Boat via foreclosure deed on the Mumford mortgage) and were fully aware of the appurtenant nature of the restrictions at the time of their purchase, they are fully bound by those restrictions. Commercial Wharf East Condominium Ass'n, 407 Mass. at 131-139 (construing and enforcing private access and parking easement affecting the entirety of Commercial Wharf, including Lot 1); Whitinsville Plaza, Inc., 378 Mass. at 90-99 (covenants recognized as enforceable against successor owners under both "real covenant" and "contract" analyses); Emmons v. White, 58 Mass. App. Ct. 54 , 60-62 (2003) (successor owner, on actual notice of predecessor's release of easement rights, bound by that release). This is particularly so in this case where the restrictions were the result of the settlement of a lawsuit challenging the right to build the very facility (the Inn & Marina) whose use is now at issue. That lawsuit was dismissed and the Condominium's opposition to the construction of the Inn & Marina was withdrawn in direct reliance on the covenants restricting the future use of that facility and its associated parking (the restrictions at issue here) and the parties' agreement that those covenants would be appurtenant and bind all of their successors. The Inn & Marina has now been built. To allow it to be used free and clear of the restrictions would completely undercut that carefully negotiated settlement.

Accordingly, the Declaration of Covenants and Restrictions, the Declaration of Agreements, Covenants and Restrictions, the Amendment to Declaration of Agreements, Covenants and Restrictions, the Easement, and the Variance and Conditional Use Permit Decision are all valid, appurtenant to Lot 1, and enforceable against the defendants. [Note 72]

The Meaning and Scope of the Restrictions

The SJ Mem. & Order has already discussed many of the details of the restrictions, and I need not and do not repeat that analysis here, other than to state those prior rulings. I discuss them further only to the extent that Boston Boat challenges their applicability to particular types of activities.

* The Inn building may not have more than ten guest rooms. Declaration of Covenants and Restrictions at 1-2, ¶ 1.a.

* The kitchen area in the Inn building may only be used to prepare and provide food to (a) "registered guests of the guest rooms," [Note 73] (b) boating customers, (c) the guests of those boating customers, and (d) for catering off-site events. See id.

* No food may be prepared in the guest rooms. See id.

* No one may consume food in the guest rooms unless they are the registered guests of those rooms. [Note 74] See id.

* A liquor license, a common victualler's license, or an entertainment license may not be sought or exercised for any part of Lot 1. See id.

* No tables may be installed on Lot 1's pier for consumption of food or beverages. See id.

* Lot 1 and any building or structure on that Lot shall not be used for the following:

o as a function hall, or

o for social events, "such as, but not limited to, weddings, bar mitzvahs, school dances [or] holiday parties," with only one narrow exception: "up to four (4) special events per year open to privately invited guests or narrowly targeted audiences only may be conducted in the first floor and common areas of the building located on Lot 1 [the Inn building]." See id. at 2, ¶ 1.b. However, such events can occur only "after notice to and approval of the Condominium Association (which approval shall not be unreasonably withheld or delayed) and which notice shall be delivered to the Condominium Association at least thirty (30) days prior to any such event." Id. The Condominium is required to give notice of its approval or disapproval no later than ten days after it receives notice of the proposed event. See id. at 2-3, ¶ 1.b. Attendance at these "special events" may not exceed the occupancy limits of the first floor and common areas. See id. at 3, ¶ 1.b. For each of these four "special events," the owner of Lot 1 is to "provide appropriate traffic control and security on Lot 1 at its own expense as necessary." Declaration of Agreements, Covenants and Restrictions at 2, ¶ 1.

* No gambling or gaming is permitted anywhere on Lot 1 except for "private, social game[s] with no more than six participants." Declaration of Covenants and Restrictions at 3, ¶ 1.c.

* There can be no more than six parking spaces on Lot 1. Variance and Conditional Use Permit Decision at 3-5; [Note 75] Declaration of Covenants and Restrictions at 5, ¶ 4.d (parking on Lot 1 to comply with applicable City of Boston ordinances and laws); Declaration of Covenants and Restrictions at 7, ¶ 4.d (same).

* Lot 1's owners, the occupants of its guest rooms, its boat owners, the guests of those boat owners, and Lot 1's rubbish removers and repair persons have the right to pass and repass at no cost over the Condominium land to get to Lot 1. Declaration of Covenants and Restrictions at 2, ¶ 2.a; 5, ¶ 2.g; Easement at 1, ¶ 1.a. However, such access is subject to the following limitations:

o A daily list of guest room occupants must be provided to the guard at the Condominium's parking booth. Declaration of Covenants and Restrictions at 3, ¶ 2.a.

o There can be no more than one commercial pick up and delivery, four catering vehicles, and whatever Federal Express, United Parcel Service, United States Post Office or similar delivery vehicles are engaged in making deliveries, on Lot 1 at any one time. See id. at 5, ¶ 2.g. Note, however, that the total number of these vehicles parked on Lot 1 cannot exceed six at any given time due to the parking space restriction noted above.

o There can be no more than six customer drop-offs or pick-ups on Lot 1 at any one time and none of those drop-off or pick-up vehicles can remain on the Lot for more than thirty minutes. See id.

o No deliveries can be made before 8:00 a.m. on weekdays or before 9:00 a.m. on weekends and holidays and, except in emergencies, no commercial deliveries can be made on Sundays. See id.

* Access to Lot 1 through the Condominium's driveway and parking lot and the use of parking spaces on Condominium property by those associated with the Inn & Marina must comply with the Condominium's rules and regulations regarding parking and traffic flow on the Condominium land. However, the fees, charges and obligations so imposed may not be greater than the fees, charges and obligations imposed on other commercial entities with access to or over Condominium land. Declaration of Covenants and Restrictions at 3, ¶ 1.f.; Declaration of Agreements, Covenants and Restrictions at 2, ¶ 1.

* "All loading and unloading of routine commercial deliveries to Lot 1 shall occur on Lot 1 and not on the Condominium land." Declaration of Covenants and Restrictions at 3, ¶ 1.e (emphasis added).

* Up to four of the vehicles that are allowed to be parked on Lot 1 "may be vans, minivans, station wagons, SUV's or automobiles used in connection with [Lot 1's] catering operation." Declaration of Agreements, Covenants and Restrictions at 3, ¶ 2.b. Heavy construction vehicles are prohibited "except as needed for repairs, reconstruction or renovation" on Lot 1. See id.

* Neither Lot 1 nor any building or structure on the Lot may "be used in any way, such as servicing, embarking, or disembarking, loading or unloading, for any of the following uses: (i) party/cruise/charter/excursion boats with a maximum capacity of thirty-five (35) people or more ([such boats] being boats that offer access to a vessel, food, alcoholic beverages (including beer and wine), and service for a daily fee); (ii) boats with licenses to sell any alcoholic beverages, including beer and wine; (iii) boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants; or (iv) ferries or any other boats or vessels providing transportation to the public (other than unscheduled water taxis carrying not more than four passengers); provided, however, that paragraphs (d)(i) through (d)(iv) shall not prohibit the storage of boats described therein so long as such boats are not used, operated or moored on Lot 1 for any use prohibited by the foregoing clauses (d)(i) through (d)(iv)." Declaration of Covenants and Restrictions at 3, ¶ 1.d.

These restrictions are covenants appurtenant to and running with the land, binding on the entirety of Lot 1, including the Inn building, the Marina boat slips, and the Lot 1 watersheet. [Note 76] Commercial Wharf East Condominium Ass'n, 407 Mass. at 131-137; see also Whitinsville Plaza, Inc., 378 Mass. at 90-99. They are also contractual in nature, with terms that bind Modern Continental's successors in title, like the defendants, who have knowledge of the restrictions. Whitinsville Plaza, Inc., 378 Mass. at 99. As such, their interpretation is a question of law for the court to determine. See Massachusetts Municipal Wholesale Electric Co. v. City of Springfield, 49 Mass. App. Ct. 108 , 111 (2000); Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439 , 442 (2006).

Boston Boat does not challenge these rulings, except in this respect. It agrees to the rulings regarding parking spaces, parking, deliveries, and the prohibition on outdoor tables and chairs. It agrees that party boats, cruise boats, charter boats, excursion boats, gambling boats, and boats that have licenses to sell alcoholic beverages are prohibited. It agrees that the Inn building cannot be used as a "function hall." It agrees that "social events, such as, but not limited to, weddings, bar mitzvahs, school dances or holiday parties" are prohibited everywhere on Lot 1, both in the Inn building and on the boats But that agreement comes with these caveats. It contends that these restrictions only prohibit activities that draw off-site persons to the Inn & Marina who are not "guests" of those who are occupants of the Inn rooms or the moored boats. It contends that it is completely free to hold as many events as it wants, of whatever size and duration it chooses, for its Inn-room occupants, the owners, crew and passengers of the boats moored at the Marina, and the invited guests of those persons, so long as it pays for the food and drink at those events. And it contends that the owners of the boats at the Marina may hold whatever events they choose to hold, so long as those events are limited to the owners, passengers and crews of those boats and whatever private guests they choose to invite, in whatever numbers they invite them. This is wrong, and plainly so.

The rules governing the interpretation of restrictions are clear and well-known. "A restriction, like a deed, is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed." Weston Forest and Trail Association, Inc. v. Fishman, 66 Mass. App. Ct. 654 , 661 (2006) (internal citations and quotations omitted); see also Patterson, 448 Mass. at 665 (meaning to be "ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances"). "In addition, the restriction must be construed beneficially, according to the apparent purpose of protection or advantage . . . it was intended to secure or promote." Weston Forest, 66 Mass. App. Ct. at 661 (internal citations and quotations omitted, alteration in original). Words are given "their plain meaning if they are unambiguous," but "[a]n ambiguity is not created simply because a controversy exists between the parties. . . . Nor does the mere existence of multiple definitions of a word, without more, suffice to create an ambiguity, for most words have multiple definitions. Furthermore, difficulty in comprehension does not equate with ambiguity." Sullivan, 67 Mass. App. Ct. at 442-443 (citations and quotations omitted). Finally, and most importantly here, in interpreting restrictions, the words are to be given "the fair meaning of the language used, as applied to the subject matter," construed in the context of "the contract as a whole, in a reasonable and practical way, consistent with its language, background and purpose" and "to give reasonable effect to each of its provisions." Id. at 442 (quotations and citations omitted, emphasis added); see also Patterson, 448 Mass. at 665 ("the grant or reservation must be construed with reference to all its terms and the then existing conditions so far as they are illuminating") (emphasis added, internal quotations and citations omitted).

The importance of the restrictions to the Condominium is obvious from their origin. They were the product of the Condominium's challenge to the initial building permit for the Inn & Marina, which resulted in the limitations contained in the 1997 Variance and Conditional Use Permit Decision, and then the lawsuits brought by the Condominium, whose settlement terms were incorporated into the Declaration of Covenants and Restrictions, the Declaration of Agreements, Covenants and Restrictions, and the Amendment to Declaration of Agreements, Covenants and Restrictions.

Their intent from that origin, and from construing their provisions as an integrated whole, is also obvious. The Condominium, concerned about traffic, noise, safety, and their associated disruptions on the Wharf, particularly since everything needing landward access to the Inn & Marina passes directly alongside the Condominium residences and through its parking lots and driveways, wanted to ensure that "functions" would not take place, [Note 77] and that "event"-type [Note 78] activities at the Inn & Marina— activities outside the normal scope of day to day life at the Inn & Marina (i.e., those other than persons sleeping overnight in the Inn rooms, and boats coming and going to the Marina boat slips) — were small and confined. Thus is shown by the outright prohibition on the obtaining or exercise of a liquor, common victualler's, or entertainment license, the outright prohibition of weddings, bar mitzvahs, school dances, and holiday parties, the outright prohibition of outdoor tables for food and drink, and the repeated use of "six" or "ten" as permitted numbers — no more than ten guest rooms at the Inn, no more than six cars to be parked on Lot 1 at any given time, no more than six customer drop-offs or pickups on Lot 1 at any one time, and no more than six persons participating in card games.

Modern Continental, the then-owner of the Lot being burdened, was agreeable to this — none interferes with the ordinary, day to day operations of the Inn & Marina — so long as the Inn & Marina could hold up to four "special events" [Note 79] each year for "privately invited guests or narrowly targeted audiences," exactly the types of "social events" Boston Boat now wants to hold: a welcoming event for its Marina customers at the beginning of the season, a Fourth of July barbeque for its boaters and Inn guests, and an end of season celebration for those boaters. [Note 80] The conditions under which these "special events" could take place — none of which interfere with the ordinary operations of the Inn & Marina — were that (1) the Condominium must be given thirty-days advance notice of each such event, and the right to withhold approval so long as that withholding was reasonable, (2) there could be no more than four such events per year, (3) they could only be held indoors, and (4) their total attendance could not exceed "the occupancy limits of the first floor and common areas" of the Inn.

There is nothing anywhere in the restrictions, or in any reasonable interpretation of them, that supports Boston Boat's contention that any event it holds for its boaters, its Inn-room occupants, and their invited guests is exempt from the restrictions so long as Boston Boat pays for the food and drink itself. [Note 81] These are plainly "social events" — "public or social occasions" within the dictionary definition — and fit clearly into the four "special event" category, which the restrictions permit if the conditions are followed. Those conditions do not unreasonably interfere with Boston Boat's ability to hold the events. And Boston Boat's contention that the restrictions cannot fairly be seen as applying to events involving persons "already at the Inn & Marina" cannot bear even a moment's scrutiny. First, not everyone attending would "already be at the Inn & Marina," since Boston Boat also includes the families and guests of those persons. Second, even if the group excludes those families and guests, an organized gathering of everyone "already at the Inn & Marina," with free food and drink, guarantees a large turn-out, concentrated in one place, at one time, eating and drinking for hours, with impacts precisely the same as the gatherings Boston Boat concedes are prohibited. Persons who might otherwise be scattered on their boats or elsewhere in Boston will now gather in a concentrated group at the Inn & Marina, at the same place, at the same time. Moreover, they will not all simply be walking from their boats and Inn rooms. As the photographs of these events as they took place in 2011 show, numerous attendees also come by taxicab, car, and foot across the Wharf.

Events organized and held by the boat owners themselves are also not exempt from the restrictions, and are subject to their limitations. This applicability to the boats is plain, for at least three reasons. First, the restrictions expressly prohibit "the servicing, embarking, or disembarking, loading or unloading, for any of the following uses: (i) party/cruise/excursion boats with a maximum capacity of thirty-five (35) people or more … (ii) boats with licenses to sell any alcoholic beverages … (iii) boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants, [and] (iv) ferries or any other boats or vessels providing transportation to the public." Second, the restrictions expressly state that they apply to the entirety of Lot 1, which includes the Marina boat slips and the surrounding watersheet. Third, excluding the boats makes no sense in light of the intent of the restrictions. Such an exclusion would simply be too big a loophole. As shown by the incidents involving the Silver Cloud, the impact of a large, organized, catered event on board a large boat has precisely the same impacts as events in the Inn building. They effectively become the "party" boats that are expressly banned. Indeed, events on the boats may have even greater impacts than those inside the Inn since many of them are larger than the Inn, [Note 82] and there can be as many as 95 boats at a time at the moorings. Even the Boston Boat witnesses conceded that a wedding ceremony and reception on a moored boat is prohibited.

What is allowed on the boats, and what is prohibited, are governed by the same guidelines as activities on the Wharf itself. Ordinary activities are permitted — small gatherings of friends for visits, a meal, a card game, or a ride on the water. "Events" — large, organized, and catered social occasions — are not permitted, unless they are one of the four "special events" per year. "Mega-yachts" do not just appear at the Inn & Marina. They make reservations in advance. If their owners want to hold "events" while at the Marina, they can make advance arrangements with Boston Boat, which can then give the requisite notice to the Condominium. Fitting them within the four event per year limit is not unduly burdensome. Boston Boat's ability to police this restriction is also easy and straightforward. As previously noted, the dockways to the boats are gated and locked, accessible only by electronic key. There are cameras at every gate and, during the season, numerous dockhands and a 24/7 watchman present. Nothing occurs at the Inn & Marina without Boston Boat's knowledge. A prohibition on "events" can be placed on the mooring rental contracts, just as the prohibition of "noise" presently is. [Note 83] Indeed, given the crowded moorings during high season, with boats literally right next to each other day and night (see Ex. 1), such a prohibition of "events" would seem to be to everyone's advantage.

The impacts of an event on a boat are much the same whether the event takes place while the boat is moored, or during a cruise on the water. The same numbers of people will still embark and disembark, and the boat will be hosting and serving guests at the dock while waiting for everyone to gather and disembark. The same rules thus apply. Having the boats comply with the rules is not onerous. As Boston Boat's submissions recognize, boats holding events can embark and disembark their guests from public docks elsewhere, and then hold their on-board social functions away from the Marina docks on Lot 1 unless the Condominium has first given its approval for the function to occur at the Marina docks. [Note 84]

Relief in the Underlying Case

For the reasons set forth above, the following Judgment shall enter in the underlying case, with its declarations and orders applicable to the entirety of Lot 1, including the interior and exterior of the Inn building, the parking and other areas around that building, the Marina boat slips, and the boats moored at those slips and on its watersheet:

* The Inn building may not have more than ten guest rooms.

* The kitchen area in the Inn building may only be used to prepare and provide food to (a) registered guests of the guest rooms, [Note 85] (b) boating customers, (c) the guests of those boating customers, and (d) for catering off-site events.

* No food may be prepared in the guest rooms.

* No one may consume food in the guest rooms unless they are the registered guests of those rooms.

* A liquor license, a common victualler's license, or an entertainment license may not be sought or exercised for any part of Lot 1.

* No tables may be installed, placed, or used on Lot 1's pier for consumption of food or beverages. Since the outdoor-style, light metal tables and chairs presently at the Inn & Marina [Note 86] (as opposed its indoor-style, heavy wooden couches, chairs and tables currently in the Captain's Lounge) are being routinely carried outside for the consumption of food and drink in clear and admitted violation of this restriction, Boston Boat is ORDERED immediately to remove them from Lot 1 and not replace them with anything similar or similarly easy to move.

* Lot 1 and any building, structure or boat on that Lot shall not be used for the following:

o as a function hall, [Note 87] or

o for social events, such as, but not limited to, weddings, bar mitzvahs, school dances [or] holiday parties, [Note 88] with only this exception: up to four (4) special events per year open to privately invited guests or narrowly targeted audiences only may be conducted in the first floor and common areas of the Inn building or on boats mooring at the Marina. However, such events can occur only after notice to and approval of the Condominium Association (which approval shall not be unreasonably withheld or delayed) and which notice shall be delivered to the Condominium Association at least thirty (30) days prior to any such event. The Condominium is required to give notice of its approval or disapproval no later than ten days after it receives notice of the proposed event. Attendance at these "special events" may not exceed the occupancy limits of the first floor and common areas. For each of these four "special events," the owner of Lot 1 is to provide appropriate traffic control and security on Lot 1 at its own expense as necessary.

If a boat owner wishes to hold a social event on his or her boat and has not received permission to do so from the Condominium (either as one of the four "special events" per year or otherwise), he or she must embark and disembark the off-site guests from a public dock elsewhere and then hold the event itself on the water away from Lot 1's watersheet.

* No gambling or gaming is permitted anywhere on Lot 1 except for private, social games with no more than six participants.

* There can be no more than six parking spaces on Lot 1.

* Lot 1's owners, the occupants of its guest rooms, its boat owners, the guests of those boat owners, and Lot 1's rubbish removers and repair persons have the right to pass and repass at no cost over the Condominium land to get to Lot 1. However, such access is subject to the following limitations:

o A daily list of guest room occupants must be provided to the guard at the Condominium's parking booth.

o There can be no more than one commercial pick-up and delivery, four catering vehicles, and whatever Federal Express, United Parcel Service, United States Post Office or similar delivery vehicles are engaged in making deliveries, on Lot 1 at any one time. Note, however, that the total number of these vehicles parked on Lot 1 cannot exceed six at any given time due to the parking space restriction noted above.

o There can be no more than six customer drop-offs or pick-ups on Lot 1 at any one time and none of those drop-off or pick-up vehicles can remain on the Lot for more than thirty minutes.

o No deliveries can be made before 8:00 a.m. on weekdays or before 9:00 a.m. on weekends and holidays and, except in emergencies, no commercial deliveries can be made on Sundays.

* Access to Lot 1 through the Condominium's driveway and parking lot and the use of parking spaces on Condominium property by those associated with the Inn & Marina must comply with the Condominium's rules and regulations regarding parking and traffic flow on the Condominium land. However, the fees, charges and obligations so imposed may not be greater than the fees, charges and obligations imposed on other commercial entities with access to or over Condominium land.

* All loading and unloading of routine commercial deliveries to Lot 1 shall occur on Lot 1 and not on the Condominium land.

* Up to four of the vehicles that are allowed to be parked on Lot 1 "may be vans, minivans, station wagons, SUV's or automobiles used in connection with Lot 1's catering operation. Heavy construction vehicles are prohibited except as needed for repairs, reconstruction or renovation on Lot 1.

* Neither Lot 1 nor any building or structure on the Lot may be used in any way, such as servicing, embarking, or disembarking, loading or unloading, for any of the following uses: (i) party/cruise/charter/excursion boats with a maximum capacity of thirty-five (35) people or more (such boats being boats that offer access to a vessel, food, alcoholic beverages (including beer and wine), and service for a daily fee); (ii) boats with licenses to sell any alcoholic beverages, including beer and wine; (iii) boats that permit or provide gambling or gaming activities except for private, social games with no more than six participants; or (iv) ferries or any other boats or vessels providing transportation to the public (other than unscheduled water taxis carrying not more than four passengers); provided, however, that this shall not prohibit the storage of such boats so long as they are not being used, operated or moored on Lot 1 for any of these prohibited uses.

The Contempt and Associated Relief

With respect to the contempt part of these proceedings, I start with Boston's Boat's contention that it is not subject to contempt because it was not a party to this action at the time the relevant injunctive orders were issued, was not an officer, agent, servant, employee or attorney of a party, and was not "in active concert or participation" with a party. See Mass. R. Civ. P. 65(d). It concedes three things, however. It is a successor owner to the party against whom the injunctive orders were originally issued. It was fully aware of those orders at the time of its alleged violations (they were recorded in its chain of title, and distributed — at least in the parts it selected — to its on-site agents and employees. And it represented to this court, at a hearing in open court, that it would abide by those restrictions and orders, with this court relying on that representation. [Note 89]

As the recent case of DeGiacomo v. City of Quincy, 476 Mass. 38 (2016), slip op. at 9-12 makes plain, Boston Boat is in sufficient "privity" with the parties against whom the injunctive relief was granted to be bound by those orders for contempt purposes. While that case discussed res judicata, its reasoning is equally applicable to contempt. "Privity", the court said, "is best understood simply as a legal conclusion that follows from an analysis of the relationship between the parties to a prior adjudication and the party to be bound." Slip op. at 10. "[W]hether a nonparty is in privity with a party depends on the nature of the nonparty's interest, whether that interest was adequately represented by a party to the prior litigation, and whether binding the nonparty to the judgment is consistent with due process and common-law principles of fairness." Slip op. at 11. There is a presumption that successors in interest are in privity with their predecessors, slip op. at 9 (citing Willett v. Webster, 337 Mass. 98 , 101 (1958) and Leslie v. LaPrade, 726 A.2d 1228, 1231 (D.C. 1999), and the key question is "whether there are special circumstances or due process considerations which make it unfair to bind the [nonparty] to that judgment." Slip op. at 12. Here there is nothing unfair. Boston Boat was fully aware of the restrictions and the court's prior orders interpreting and applying them, and said that it would abide by them. Not a single disagreement was raised on that occasion, on any basis.

Even if Boston Boat is not subject to contempt, I find that the doctrine of judicial estoppel makes it subject to the same sanctions. As stated in Correia v. DeSimone, 34 Mass. App. Ct. 601 , 604 (1993):

The primary concern of the doctrine of judicial estoppel is to protect the integrity of the judicial process. That concern would be ill served if those intimately involved in that process, litigants, attorneys, and judges, could not rely on declarations of settlement made to the court. The force of oral agreements made in open court and acted on by the court, even in the face of statutory requirements of formality, has long been recognized. It defies logic and fundamental principles of fairness to allow a represented party who has sought justice in a forum to contradict and undermine an agreement it reached and acknowledged in that same forum, especially when the judge and other litigants appear to have relied on that acknowledgement.

(internal citations and quotations omitted). See also Dalton v. Post Publishing Co., 328 Mass. 595 , 599 ("Where a party causes the judge to understand that certain facts are admitted or that certain issues are waived or abandoned he cannot object to the judge's conducting the trial on the basis of that understanding."); Savage v. Blanchard, 148 Mass. 328 , 349 (1889) (Holmes, J.) (enforcing substantive stipulation made by counsel in open court). The same principles apply here.

That said, and even though violations of the restrictions clearly occurred, [Note 90] contempt or other sanctions do not automatically flow. Since they were not part of the contempt complaint, I cannot consider the August 11, 2010 or June 7 &/or 9, 2011 incidents, and I find that contempt is not appropriate with respect to the March 17, 2011 Jewish Vocational Services "Careers & Beers" event because the Condominium retroactively agreed to treat it as one of the four permitted "special events" for 2011. That leaves (1) Boston Boat's June 18, 2011 "welcome back" customer appreciation dinner and pre-dinner wine tasting, (2) the June 21, 2011 "Beers, boats and burritos" promotional event by Marlo Marketing Communications, thrown by Marlo for its "friends," (3) Boston Boat's July 4, 2011 Fourth of July barbeque, and (4) the July 13 & 14, 2011 events on the Silver Cloud.

"[A] civil contempt finding [must] be supported by clear and convincing evidence of a clear and unequivocal command." In re Birchall, 454 Mass. 837 , 838-839 (2009). Neither good faith, nor absence of willful disobedience, nor lack of intent to violate a decree are defenses to contempt. Judge Rotenberg Educ. Center, Inc. v. Comm'r of the Dept. of Mental Retardation (No. 1), 424 Mass. 430 , 453 (1997).

By this standard, I cannot find that the Silver Cloud events were a contempt. I have spoken clearly and unequivocally to events on boats now, and the Silver Cloud events are a clear violation of my current rulings, but I had not done so then for the simple reason that there had been no complaints about events on boats to that date and no one had raised the issue.

By this standard, I also cannot find that the June 18, 2011 "welcome back" dinner and July 4, 2011 barbeque were contempts. They are clear violations of my current rulings, and their like cannot happen again unless within the four allowed "special events" per year. But the evidence at trial showed confusion on the lines of communication between the Condominium and Boston Boat on what was approved, and what not. The restrictions are clear that at least thirty days prior notice must be given for the "four", but the Condominium's correspondence regarding the "welcome back" dinner and its retroactive approval indicated that formalities might not always be necessary. Moreover, the Condominium property manager's comments to Boston Boat in June 2011 that there would be no objection to "customer appreciation" events such as 2010's "end of season" gathering were such that Boston Boat was not unreasonable in relying on them. [Note 91] The Condominium has since made clear that its property manager has no authority to give approvals, and that it will insist on strict adherence to the notice and approval provisions in the restrictions.

I can, however, and do, find that the June 21, 2011 "Beers, boats and burritos" promotional event by Marlo Marketing Communications, thrown by Marlo as a "'friends' party for [that] agency," was a clear and unequivocal violation of the restrictions and the Preliminary Injunction entered in this case on July 27, 2006 and recorded at the Suffolk County Registry of Deeds in the Inn & Marina's chain of title on September 7, 2007. This is because it was a commercial function, by an entity (Marlo Communications) with no connection whatsoever to the Inn & Marina other than obtaining permission to use that facility for its event, and thus a clear use of the Inn & Marina as a "function hall" for a "function." The person who organized and hosted that event, Marlo Fogelman, testified unequivocally that its purpose was to promote her agency, that the invitee list was her list (including media representatives to give it widespread publicity), that only those who were on her list were admitted to the function, and that over fifty people came by foot, car, and taxicab, with the food and drink brought from offsite. Worse, it spilled out of the Inn building onto tables set up outdoors for eating and drinking, in clear, unequivocal violation of the restrictions and the Preliminary Injunction. What makes it beyond any possible excuse is that Boston Boat's witnesses testified falsely about it at trial, falsely claiming that it was an event by Barton & Gray for the fractional owners of its boat (an event that would also be a violation of the restrictions). Boston Boat cannot rely on Mr. Federspiel's statements that no objection would be raised (see testimony cited in n. 91, supra) because the description they gave him of the event was false, as they either knew or should have known.

The Condominium does not claim damages for this event, other than its associated attorneys' fees. I award those fees, to be set after the Condominium makes a submission regarding them, careful to limit them to this incident and its associated court proceedings.

Conclusion

Final Judgment shall be entered in the underlying case, and a separate Judgment in the contempt proceedings, in accordance with the findings and rulings in this Decision.

SO ORDERED.

exhibit 1

exhibit 2