RICHARD SHEA and PAULA SHEA as Trustees of 24 Bass River Pkwy. Real Estate Trust v. NORTHSTAR PROPERTY MANAGEMENT LLC and STEVEN DEYOUNG, SEAN IGOE, JOSEPH SARNOSKI, DIANE MOUDOURIS, and DEBRA MARTIN, as they are Members of the Zoning Board of Appeals of the Town of Yarmouth.

The last italicized clause shall hereinafter be referred to as the "Agreement Clause."

16. The Castonguay deed conveying Lot 3 back to Curtis was dated September 11, 1935 and was recorded at the Registry on September 12, 1935 in Book 514, Page 68 (the "1935 Lot 3 Deed"). As with the other Castonguay Deeds, the 1935 Lot 3 Deed conveyed Lot 3 subject to the seven numbered restrictions imposed by the Hallowell Deed "insofar as the same are now of legal force and effect" and, additionally, subject to and with the benefit of several other "conditions and restrictions and rights, privileges and easements (imposed upon and appurtenant alike to all said numbered lots on [the 1928 Subdivision Plan])" (Emphasis added). The 1935 Lot 3 Deed contains no time limits on any of the conditions and restrictions recited therein.

17. The 1935 Lot 3 Deed also conveyed to Curtis a one-fifteenth undivided part of the River Parcel "together with one undivided fifteenth part of the pier and float now located and maintained on said Second Parcel" subject to the same "conditions and restrictions," including the Agreement Clause, and with the benefit of the same appurtenant rights, privileges and easements, as recited in the other Castonguay Deeds. The 1935 Lot 3 Deed is silent as to time limits on the conditions and restrictions recited therein.

18. Also, by deed dated September 11, 1935 and recorded on September 12, 1935 in Book 513, Page 434, Castonguay conveyed Lot 13 back to Craig, together with an undivided one-fifteenth part of the Riverfront Parcel and an undivided one-fifteenth part of the pier and float located thereon (the "1935 Lot 13 Deed"). The 1935 Lot 13 Deed conveys Lot 13 subject to the same restrictions, and conditions, and with the benefit of the same appurtenant rights, privileges and easements, as those recited in the other Castonguay Deeds, including the 1935 Lot 3 Deed. The 1935 Lot 13 Deed is also silent as to time limits on the conditions and restrictions recited therein.

19. In 1936, the common boundary between Lot 3 and the adjoining Lot 2 was modified through an exchange of land. The reconfigured lots were shown on a 1936 plan entitled "Plan Showing Proposed Revision of Lots #2 & #3 at Bass River Park, South Yarmouth, Mass.," which was recorded at the Registry in Book 62, Page 151. The reconfigured Lot 3 is shown on that revision plan as Lot 3A.

20. Following a series of conveyances by mesne owners, by deed dated November 29, 2001 and recorded at the Registry on November 30, 2001 at Book 14509, Page 192, Cape Cod Bank and Trust Company, as Trustee under the Estate of Edward L. Coughlin, conveyed Lot 3A and the one-fifteenth undivided interests in the Second Parcel and the pier and float, to William J. Marasco (the "Lot 3A Deed"). The Lot 3A Deed recites that the conveyance is "subject to and with the benefit of the restrictions and easements as set forth in [the 1935 Lot 3 Deed] insofar as the same are of legal force and effect." [Note 4]

21. On February 21, 2008, Marasco conveyed Lot 3A, together with the one-fifteenth interests in the River Parcel and the pier and float located thereon, to Defendant Northstar for nominal consideration. The 2008 deed, which was recorded at the Registry in Book 22686, Page 215, recites that the premises are conveyed subject to and with the benefit of restrictions and easements as set forth in the 1935 Lot 3A Deed, "insofar as the same are of legal force and effect." [Note 5]

22. Northstar is a Massachusetts limited liability company with a principal address of 21 Aaron's Way, West Yarmouth, Massachusetts. Marasco is the manager of Northstar.

23. Northstar was the record owner of Lot 3A until October 25, 2011, when Northstar conveyed Lot 3A back to Marasco for nominal consideration, by deed recorded at the Registry in Book 25780, Page 324. Marasco was record owner of Lot 3A on the date this action commenced. [Note 6]

24. Plaintiffs Richard W. Shea and Paula Shea, as Trustees of the 24 Bass River Pkwy. Real Estate Trust ("Plaintiffs" or "the Sheas"), are the record owners of Lot 13.

ADDITIONAL UNDISPUTED FACTS MATERIAL TO COUNT I (ZONING APPEAL)

25. Under Section 102.2.2 of the Yarmouth Zoning Bylaw ("Bylaw"), the ZBA is authorized to hear and decide petitions for variances from the terms of the Bylaw, "including variances for use."

26. The Bylaw defines the term "Two-Family Dwelling" as: "[a] building containing two (2) dwelling units with not more than (3) lodgers or boarders per family." [Note 7]

27. According to the Use Regulation Table in Bylaw Section 202.5, a two-family dwelling is not a permitted use in the RS-40 District in which the Property is located.

28. According to the Table of Dimensional Requirements in Bylaw Section 203.5, the minimum lot area requirement in an RS-40 District is 40,000 square feet. Lot 3A contains only 24,275 sq. ft.

29. According to Note C in the Table of Dimensional Requirements, "[e]xcept for properties to which Section 404 applies, two-family dwellings, where allowed, require twice (2 times) the normal lot size of the district." [Note 8]

30. In 2001, when Marasco originally purchased Lot 3A, it was already developed with a single family dwelling and a separate garage structure with an apartment located on the first floor. In 2005, Marasco sought building permits from the Yarmouth Building Commissioner to replace the existing garage and apartment with a new garage and apartment.

31. Commencing in March, 2006, Marasco obtained three building permits: (1) the March 21, 2006 permit allowing the demolition of the existing apartment with garage; (2) the March 31, 2006 permit allowing the construction of a foundation; and (3) the April 19, 2006 permit allowing Marasco to "construct three car garage with 2nd floor apartment – one bath, one bedroom, 1 deck, 1 den, 1 livingroom [sic], one workshop as per plans dated 4/13/06."

32. The demolition of the original garage/apartment structure was completed in March 2006, and the new foundation was completed prior to April 19, 2006. The construction of the new garage with apartment commenced in April 2006. A Certificate of Occupancy was issued for the new garage with apartment on December 19, 2006.

33. Although no appeal was taken from the grant of the 2006 building permit allowing construction of the replacement garage and apartment, sometime subsequent to the 2006 occupancy certificate, and after Plaintiffs complained to the Building Commissioner that the building permit was not lawfully issued, the Building Commissioner questioned whether the replacement apartment was a lawful continuation and alteration of a prior nonconforming use.

34. On July 16, 2009 and August 11, 2009, the Building Commissioner issued zoning enforcement orders to Marasco, requiring him to either: (a) provide documentation demonstrating there was no interruption/lapse beyond two (2) years in the prior nonconforming apartment use; or (b) apply to the ZBA for a variance authorizing the apartment use. [Note 9]

35. Northstar thereafter applied to the ZBA for a use variance, to authorize two-family dwelling use of the Property, and for a variance from minimum lot size requirements.

36. The ZBA granted the two requested variances, and filed its written decision with the Town Clerk on December 1, 2011 (the "Variance Decision").

37. Plaintiffs timely appealed the Variance Decision on December 19, 2011.

DISCUSSION

Count I -- Appeal Under G.L. c. 40A, § 17

In its Motion for Summary Judgment, Northstar seeks dismissal of the Sheas' G.L. c. 40A, § 17 appeal of the Variance Decision ("Section 17 Appeal") on procedural grounds, whereas the Sheas, in their Cross-Motion, seek annulment of the Variance Decision on the merits. As discussed below, neither party is entitled to summary judgment in their favor.

1. Standing

Only a "person aggrieved" has standing to challenge a decision of a zoning board of appeals. G.L. c. 40A, § 17. The Sheas, as owners of land directly across the street from Lot 3A are "parties in interest" under G.L. c. 40A, § 11, [Note 10] and therefore benefit from a rebuttable presumption that they have standing as "aggrieved persons" to appeal the Variance Decision. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 700 (2012); Marashlian v. Zonign Bd. of App. Of Newburyport, 421 Mass. 719 , 721 (1996). To rebut this presumption on summary judgment, a defendant challenging an abutter's aggrievement for jurisdictional purposes is not required to present affirmative evidence that refutes the presumption; rather it is enough that a defendant refers to material described in Mass. R. Civ. P. 56, unmet by contravening materials, demonstrating that the abutter has no reasonable expectation of proving a legally cognizable injury. 81 Spooner Rd., 461 Mass. at 702 & n.14; Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20 , 34 (2006).

Here, however, Northstar points to no materials in the summary judgment record, such as the pleadings, Rule 56 affidavits, deposition testimony, or interrogatory answers, to demonstrate that Plaintiffs have no reasonable expectation of proving a legally cognizable injury. Defendant instead asserts that Plaintiffs' undisputed failure to have brought any action challenging the legality of the garage apartment at any time after they purchased Lot 13, or to have timely appealed the building permit for the garage apartment issued in March 2006, constitute "prima facie evidence of no substantial or particularized harm." Defendant points to no legal authority in support of this proposition, however, and the court has found none. In order to successfully challenge the presumption, Defendant was required to point to credible, affirmative evidence which is "contrary to a presumed fact [of aggrievement]." 81 Spooner Rd. at 700-01; Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). Northstar's bare legal argument is not sufficient to rebut Plaintiffs' statutory presumption of standing as parties in interest under G.L. c. 40A, § 11. Therefore, Plaintiffs are not required to come forward to affirmatively demonstrate their particular aggrievement. [Note 11] Accordingly, I find that Defendant is not entitled to summary judgment dismissing Plaintiffs' Section 17 Appeal on standing grounds.

2. G.L. c. 40A, § 7 Limitations

Northstar alternatively argues that Plaintiffs' Count I zoning appeal should be dismissed because G.L. c. 40A, § 7 bars maintenance of the appeal more than six years after the garage apartment was constructed. Northstar contends that the real intent behind Plaintiffs' appeal of the Variance Decision is to require the "abandonment, limitation, or modification" of a use authorized by a building permit. They argue, therefore, that Plaintiffs' action cannot be "maintained" after the expiration of the statutory six-year time limit imposed by G.L. c. 40A, § 7. Additionally, Northstar contends that Plaintiffs' have failed to record notice of the instant action in the Registry of Deeds, as required by Section 7. Northstar's creative attempt to impose the limitations of Section 7 on Plaintiffs' Section 17 Appeal fails as a matter of law.

In relevant part, Section 7 bars actions to compel the "abandonment, limitation, or modification of [a] use allowed by [a building] permit . . . by reason of an alleged zoning violation. . . unless the action … is commenced and notice thereof recorded in the registry of deeds … within six years next after the commencement of the alleged violation of law." Count I of Plaintiffs' Complaint, however, is most definitely not an action taken to require "abandonment, limitation or modification of" the garage apartment authorized by building permit in 2006. Rather, it is an appeal under G.L. c. 40A, § 17 from a 2011 decision of the ZBA granting certain variances intended to make the apartment use lawful under the Bylaw. [Note 12] "By their very nature, variances 'are individual waivers of local legislation' that permit nonconformity." Furlong v. Zoning Board of Appeals of Salem, 90 Mass. App. Ct. 737 , 739 (2016) (quoting Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188 , 207 (2005)). An appeal under Section 17 is the "exclusive remedy" for persons aggrieved by a variance decision, and it is undisputed that Plaintiffs' Section 17 Appeal was brought within the twenty-day statute of limitations period for such an appeal.

As the Section 7 limitations on enforcement actions are quite simply inapplicable to Plaintiffs' Count I appeal of the Variance Decision under G.L. c. 40A, § 17, Defendant is not entitled to summary judgment dismissing Count I of the Sheas' Complaint.

3. Validity of the Variance Decision

Plaintiffs have cross-moved for summary judgment, seeking annulment of the Variance Decision on the ground that Northstar will be unable, at the de novo trial, to sustain its burden to prove that the mandatory prerequisites under G.L. c. 40A, § 10 for the grant of a variance are met, i.e. that:

owing to the circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting the zoning district in which it is located, a literal enforcement of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.

G.L. c. 40A, § 10. Plaintiffs contend that "it is apparent from the Board's Decision that the facts and circumstances upon which the Board relied do not meet the statutory criteria for the grant of a variance."

Plaintiffs are correct that Northstar will have the burden at trial of demonstrating the validity of the granted variances. See The 39 Joy Street Condominium Ass'n v. Board of Appeals of Boston, 426 Mass. 485 , 488 (1998). In moving for summary judgment, however, Plaintiffs took on the burden of demonstrating by reference to the materials prescribed in Mass. R. Civ. P. 56 that Northstar has no reasonable expectation of proving at trial that all of the prerequisites for a variance are met. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 716 (1991). Plaintiffs have failed to meet this burden. Without reference to any supporting Rule 56 materials, the Sheas simply assert that the "facts" recited by the ZBA in the Variance Decision, even if eventually found by the court after trial, do not satisfy the statutory criteria for a variance, and that "the undisputed facts demonstrate that North Star [sic] will not be able to prove any of the essential elements necessary to support issuance of the variance." Such bare assertions are insufficient to support summary judgment annulling the Variance Decision.

The court's de novo review of a variance decision accords no special weight to the findings made by a board of appeals. It is ultimately the trial judge's duty to make his or her own findings of fact, "independent of any findings of the board" and, then to determine the validity of the board's decision on the basis of the facts found by the court. Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 559 (1954). In making those findings of fact, the court is not restricted to the evidence introduced before the local board. Id. at 558. Because Plaintiffs' claim that proof of the necessary facts to support the validity of the Variance Decision is unlikely to be forthcoming at trial is unsupported by any Rule 56 materials, summary judgment on this issue is not warranted.

For the reasons stated, the Parties' Cross-Motions for Summary Judgment as to Count I are accordingly DENIED.

Count II – Declaratory Judgment Claim

Northstar further seeks summary judgment that the single-family use restriction originally imposed in 1925 as Restriction No. 5 in the Hallowell Deed, and referenced in the Lot 3A Deed, has expired by operation of law, under G.L. c. 184, § 28, where there have been no Notices of Restriction recorded to extend its enforceability beyond fifty years. Northstar also argues that Count II should be dismissed because Plaintiffs have no right of action to enforce payment of taxes, or construction and maintenance costs for the new dock built on the riverfront parcel in 2009. Northstar acknowledges it is obligated to pay one fifteenth of the "upkeep and repair" costs for the then-existing pier as set forth in the Agreement Clause, but argues that this obligation does not extend to sharing the construction costs of the new dock. [Note 13]

In their Opposition and Cross-Motion for Summary Judgment, Plaintiffs argue that the circumstances surrounding the 1935 Joint Deed to Castonguay and the subsequent Castonguay Deeds of the subdivision lots back to the original owners, created a new set of restrictions as part of a "common scheme" for the development and use of the lots and the River Parcel, which re-imposed the seven numbered Hallowell Deed restrictions. Citing Guillette v. Daly Dry Wall, 367 Mass. 355 , 358 (1975), the Sheas argue that, as intended beneficiaries of these common scheme restrictions, they have the right to enforce the restrictions against any other lot owner in the Bass River Park Subdivision. Thus, Plaintiffs argue, they are entitled to bring an action to enforce the deed restrictions contained in the Lot 3A Deed which, they contend, limit the use of the River Parcel, and the pier and float thereon, to owners and occupants of the principal, single-family residential structure on each lot who have paid their proportionate share of the taxes and maintenance fees.

Plaintiffs further argue that, as applied to the facts of this case, application of Section 28 to prevent enforcement of the restrictions would violate the "contracts clause" of the United States Constitution [Note 14] and Article 10 of the Massachusetts Declaration of Rights, [Note 15] and would constitute an unconstitutional taking of the Sheas' property interest in the deed restrictions.

Lastly, Plaintiffs appear to argue, in the alternative, that the Lot 3A deed restrictions prohibit use of the River Parcel except by those lot owners who are current in their obligations to contribute to the taxes and maintenance costs, and that such restrictions are "equitable servitudes" which are not subject to expiration. Plaintiffs also invoke the rationale of Sullivan v. O'Connor, 81 Mass. App. Ct. 200 (2012), which found that although certain deed restrictions had expired pursuant to G.L. c. 184, § 28, an implied obligation of the lot owners in a common scheme development to pay assessments to the homeowners' association was an equitable servitude which was not subject to such expiration. Plaintiffs argue that so, too, the recited agreement in the Lot 3A Deed that each lot owner will contribute to the taxes on the River Parcel and maintenance of the pier and float does not expire.

As a preliminary matter, I determine that Northstar is not entitled to summary judgment dismissing the Count II Declaratory Judgment claim on the grounds that it fails to state a claim upon which the requested relief may be granted. Count II plainly sets out a claim for declaratory relief under G.L. c. 231A with respect to an actual controversy over the continuing enforceability of Restriction No. 5, and whether the provisions of the Lot 3A Deed prohibit the owner and occupants of Lot 3A from using the River Parcel and the dock now located on it unless they are current in their obligations to contribute to the taxes and repair and maintenance costs. As owners of one of the subdivision lots, which is subject to and benefitted by the rights and restrictions set forth in the Lot 3A Deed, Plaintiffs have a right to bring a G.L. c. 231A claim to resolve an actual controversy concerning the scope and applicability of mutual covenants such as those set forth in the Lot 3A Deed. Guillette, 367 Mass. at 358.

Accordingly, Northstar's Motion for Summary Judgment dismissing Count II is

DENIED.

Proceeding to the substantive arguments, I find that the undisputed facts in this case make summary judgment appropriate under Count II. However, I have determined that those facts do not entitle Plaintiffs to the particular declarations they seek. More specifically, I determine that Restriction No. 5 has expired and is no longer of any force and effect. Further, the uniform language in the 1935 Castonguay Deeds, granting to each lot owner in the Bass River Park Subdivision appurtenant easements and rights to use the River Parcel, does not make such appurtenant easements and rights contingent on a benefitted lot owner's compliance with any restrictions on use of the lot itself (such as Restriction No. 5) or payment of the one-fifteenth share of the taxes and maintenance of the pier and float.

1. Restriction No. 5

I find that Restriction No. 5 is no longer in effect and enforceable, but not for the reasons Defendant argues. That is, I do not find that Section 28 applies in this circumstance. Because Restriction No. 5 was "unlimited as to time" when it was originally imposed by the Hallowell Deed in 1925, that restriction expired by operation of G.L. c. 184, § 23 on September 2, 1955, thirty years after the date it was created, and was not capable of extension by recorded notices under Section 28. Section 23 of G.L. c. 184, provides that, with certain exceptions not applicable here,

[c]onditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument … creating them….

Section 23 thus "sets a 'term' of thirty years in the absence of any stated time frame" in a private restriction on use of land. The Stop & Shop Supermarket Company v. Urstadt Biddle Properties, Inc., 433 Mass. 285 , 288 (2001). The same thirty-year statutory time limit on land use restrictions without stated time limits, has been in effect since 1887. See St. 1887, c. 418. The law was in effect in 1925 when Restriction No. 5 was first imposed by the Hallowell Deed on the land ultimately developed as the Bass River Park Subdivision. Since the Hallowell Deed did not state any time limits for the restrictions recited therein, they were made subject to the thirty-year time limit imposed by statute – a time limit that cannot (unlike stated time limits) be extended by periodic recording of notice. Brear v. Fagan, 447 Mass. 68 , 76 (2006); Apfel v. Miller, 85 Mass. App. Ct. 450 (2014) (holding that where the expiration date of a restrictive covenant is established by operation of Section 23 because the parties have not agreed upon one, the filing of a notice of restriction prior to the statutory expiration cannot extend the enforceability of the restriction); see also The Stop & Shop Supermarket Company, 433 Mass. at 288 (holding that restrictions unlimited in time are governed by Section 23 and cannot be extended through periodic recording under G.L. c. 184, § 27(b), which applies only if there is an express term stated in the instrument imposing the restriction). [Note 16]

Following the reasoning in the above cited cases, I find that Restriction No. 5 terminated, by operation of G.L. c. 184, § 23, on September 2, 1955 – thirty years after its original imposition. In making this determination, I reject Plaintiffs' contention that Restriction No. 5 was "re-imposed" on each of the subdivision lots by the 1935 Castonguay Deeds. Although the Woodruff and Thomas restrictions were expressly released and waived in the 1935 Joint Deed, the numbered restrictions in the Hallowell Deed were not. Rather, the 1935 Joint Deed expressly made the conveyance of the subdivision lots to Castonguay subject to those numbered restrictions. The 1935 Castonguay Deeds conveying the subdivision lots back to the original lot owners, although adding some new restrictions, also made the conveyance of the subdivision lots subject to the existing numbered restrictions. [Note 17]

Accordingly, summary judgment shall enter declaring that Restriction No. 5 is no longer enforceable because it expired by operation of law thirty years after it was originally imposed by the Hallowell Deed. [Note 18]

2. Obligations for Taxes and Maintenance Costs for the River Parcel and Pier

In their Cross Motion for Summary Judgment, Plaintiffs request a declaratory judgment that "the use of the pier and float on the river parcel is appurtenant only to those lots which are in compliance with restriction no. 5, and are current in their financial obligations for taxes, maintenance and repair of the pier and float, including all improvements thereto." In response, Defendant "categorically agrees" that it is responsible for one fifteenth of the real estate taxes due on the River Parcel, and for a one-fifteenth share in the costs of the upkeep and repair of the then-existing pier and float described in the 1935 Castonguay Deeds. Defendant contests Plaintiffs' assertion that the right to use the River Parcel and said pier and float is contingent upon compliance with Restriction No. 5 and on being current in the payment of the taxes and maintenance costs. So the controversy is not over whether the owner of Lot 3A is obligated to pay a one-fifteenth share of the taxes on the River Parcel and a one-fifteenth share of maintenance and repair costs for the pier and float. Rather the dispute is whether the owner and occupants of Lot 3A are prohibited from using the River Parcel and the pier and float unless (a) that Lot is used for single-family use in accordance with Restriction No. 5, and (b) the owner of Lot 3A is current with its payment obligations for the taxes and maintenance under the Agreement Clause. [Note 19] As will be discussed below, I find that the plain language of the pertinent Deeds does not make use of the River Parcel, or the pier which existed in 1935, contingent upon either of these circumstances. [Note 20]

When Castonguay conveyed each of the fifteen numbered lots in the Bass River Park Subdivision, together with a one-fifteenth undivided fee interest in the River Parcel, he made the conveyance of the partial, undivided interests in the River Parcel subject to certain "conditions and restrictions" [Note 21] expressly granted as "rights, privileges and easements" in and over the River Parcel, appurtenant to the conveyed lot and also appurtenant to each of the other lots in the Bass River Park Subdivision. I construe the Castonguay Deeds as creating an affirmative easement which subjects the servient estate (i.e. the commonly-owned River Parcel) to the rights of the owners of the dominant estates (i.e. the subdivision lots) for free, exclusive and unobstructed use of the River Parcel for bathing and recreation purposes. See Patterson v. Paul, 448 Mass. 658 , 662 (2007) ("An affirmative easement 'creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.'") (citing the Restatement (Third) of Property (Servitudes), § 1.2(1) (2001)). [Note 22]

According to the plain language of the Castonguay Deeds, such appurtenant rights are not contingent on any requirement that the benefitted lots be in compliance with Restriction No. 5 (a restriction which, as discussed above, is no longer enforceable in any event). Nor do I construe the Agreement Clause as making the appurtenant rights and easements in the River Parcel contingent on contributing to the real estate taxes and the upkeep and repair of the pier and float.

In light of the undisputed circumstances surrounding the Castonguay Deeds, which indicate an intent on the part of the lot owners and Castonguay to create a common development scheme for the Bass River Park Subdivision (including common rights to access and use the beach along Bass River), I treat the Agreement Clause as creating a continuing and mutual obligation among the owners of the fifteen numbered lots in the Bass River Park Subdivision to contribute equally to the real estate taxes for the River Parcel and the costs of maintaining the pier and float that existed at the time. [Note 23] And Indeed, Defendant does not dispute this continuing obligation. But the payment obligation is not, as Plaintiffs contend, a "restriction" on use of the River Parcel.

"'A 'restriction on the use of land' is a right to compel the person entitled to possession of the land not to use it in specified ways.'" Patterson, 448 Mass. at 662 (quoting Labounty v. Vickers, 352 Mass. 337 , 347 (1967) (emphasis added)). The agreement and understanding that each lot owner is to assume a proportionate share of the taxes and upkeep costs is not such a restriction. Rather, it reflects an affirmative obligation imposed on each of the benefitted lot owners and their successors to contribute equally to the costs associated with use of the land, pier and float for bathing and recreational uses.

Even without the Agreement Clause, the Lot owners, as co-tenant owners of the fee interest in the River Parcel, are already obligated to pay taxes on, and to maintain, the commonly owned riverfront land and facilities. [Note 24] Moreover, "[t]he duty of maintaining an easement in such condition and repair as may be necessary to its exercise normally rests upon the holder of the easement." Shapiro v. Burton, 23 Mass. App. Ct. 327 , 333 (1987); see also Sullivan v. O'Connor, 81 Mass. App. Ct. 200 , 211 (2012) (quoting Sea Gate Ass'n v. Fleischer, 211 N.Y.S.2d 767, 778 (N.Y. Sup. Ct. 1960)). [Note 25] By expressly allocating equal shares of that obligation to the owners of the subdivision lots who have been granted the exclusive rights and easement to use the River Parcel, the Agreement Clause is simply an equitable means of ensuring that those who share equally in the exclusive rights to use the River Parcel will share equally in the costs. The arrangement is not dissimilar to a homeowner agreement requiring assessment of common charges or association dues, although in this case there is no evidence of any formal homeowners association or regulations for the assessment, collection and disbursement of the shares. [Note 26]

For the foregoing reasons, summary judgment under Count II of the Complaint is appropriate, declaring that Lot 3A has appurtenant to it the mutual rights and easement for free, exclusive and unobstructed use of the River Parcel for bathing and recreational purposes as shared among the owners and occupants of each numbered lot in the Bass River Park Subdivision, and further declaring that the exercise of such mutual rights and easement is not conditional on (1) said Lot being in compliance with the single-family dwelling restriction originally imposed by Restriction No. 5 in the Hallowell Deed, or (2) the owner(s) of said Lot being current in their obligations to pay a one-fifteenth share of taxes on the River Parcel and a one-fifteenth share of the upkeep and repair costs for the pier and float thereon. [Note 27]

CONCLUSION

For the foregoing reasons, I have determined as to the Cross Motions for Summary Judgment under Count I that Defendant is not entitled to summary judgment dismissing Plaintiffs' Section 17 Appeal either on the ground that Plaintiffs lack standing, or on the ground that maintenance of said Appeal is now barred by G.L. c. 40A, § 7. Additionally, I have determined that Plaintiffs are not entitled to summary judgment invalidating the Variance Decision, as they have not met their burden under Mass. R. Civ. P. 56 to show that proof of the necessary facts to support the validity of the Variance Decision is unlikely to be forthcoming at trial.

As to the Cross Motions for Summary Judgment under Count II, I have determined that summary judgment is appropriate, declaring that Restriction No. 5 has expired by operation of law and is no longer enforceable; and further declaring that the appurtenant rights and easement to use the River Parcel granted to the owner(s) of Lot 3A is not conditional on compliance with said Restriction No. 5, nor on being current in the obligations under the Agreement Clause. Final Judgment in Count II will not enter at this time, however, as the Count I claim remains to be adjudicated.