EDWARD S. CLISH and ALLISON L. CLISH v. STEVEN E. PARADISE and HELEN M. PARADISE

I. INTRODUCTION

This action was filed by Edward S. Clish and Allison L. Clish ("Plaintiffs") pursuant to G.L. c. 240, §§ 10A-10C and G.L. c. 184, §§ 26-30, to enforce covenants in the deed to a property ("Property") [Note 1] owned by Steven E. Paradise and Helen M. Paradise ("Defendants"). Plaintiffs and Defendants own directly abutting residential properties in Uxbridge.

Plaintiffs assert that Defendants are operating a commercial dog breeding and sales operation in violation of restrictions in Defendants' deed limiting the Property to residential use. Plaintiffs ask the court to find and rule that (1) Plaintiffs are entitled to enforce the restrictive covenants in Defendants' deed, (2) those restrictive covenants prohibit non-residential activity, and (3) Defendants' housing, breeding, and selling of dogs is commercial activity prohibited by the covenants. Plaintiffs ask the court to grant injunctive relief enforcing those covenants.

Defendants assert that (1) Plaintiffs have no standing to bring this claim under G.L. c. 184, §30, (2) even if Plaintiffs do have standing, the restrictions in the deed do not limit the Property to residential use, and (3) even if the Property is restricted to residential use, the dogs are pets, the breeding activity is accessory to residential use, and there are no activities underway on Defendants' Property which are commercial in nature.

After trial, in light of the evidence I find credible and persuasive, I find and rule that Plaintiffs have standing to bring this claim as abutters under G.L. c. 186, §§ 26-30 who are intended to have the benefit of the deed restrictions in Defendants' deed. I find that, under those deed restrictions, the Property is limited to residential use. I conclude that Defendants' breeding and selling of the of dogs, in the manner and quantities shown at trial, is commercial activity, that exceeds what is allowable under the restrictive covenants which bind Defendants and their use of the Property.

II. PROCEDURAL HISTORY

This case was filed on December 11, 2014. A case management conference was held on January 20, 2015, at which both parties were represented by counsel. During that conference the court set a schedule for the case ordering discovery to close May 31, 2015, and the first dispositive motion, if any, to be filed by June 30, 2015. On June 29, 2015 Defendants filed a motion for summary judgment. On July 15, 2016 Plaintiffs filed an opposition to Defendants motion and a cross-motion for summary judgment. On August 31, 2016 Defendants filed an opposition to Plaintiffs' cross-motion. The court (Piper, J.) held a hearing on the cross-motions for summary judgment on September 4, 2015. Following the hearing, the court denied all motions for summary judgment, concluding that trial was required to resolve material disputed facts, including as to ambiguity in the language of Defendants' deed. [Note 2] Nothing in the subsequent proceedings in this case, including at trial, has led me to doubt or depart in any way from the rulings made on summary judgment.

Trial opened on March 10, 2016. Court reporter Pamela St. Amand was sworn to record the testimony at trial and produce a transcript of the proceedings. Five witnesses testified at trial: Plaintiff Edward Clish, Plaintiff Allison Clish, Plaintiffs' witness Gary Hutnak, Defendants' witness Joseph Cove, and Defendant Helen Paradise. Thirteen exhibits were entered into evidence, some in subparts, and all as reflected in the transcript. At the close of Plaintiffs' case Defendants moved to dismiss pursuant to Mass. R. Civ. P. 41 (b) (2), claiming that Plaintiffs had not presented sufficient evidence to show standing to enforce the deed restrictions as the intended or actual beneficiaries of those restrictions. The motion was DENIED, preserving Defendants' rights again to raise this argument after trial on the full record. At the conclusion of the taking of evidence, the trial was suspended to allow the parties an opportunity, after the transcript of the evidentiary portion of the trial was received, to submit proposed findings of fact and proposed rulings of law supported by memoranda of law. The court received the transcript on April 21, 2016, and gave the parties notice that all filings were to be submitted by May 23, 2016. Trial resumed for closing arguments on July 8, 2016. Following closing arguments, the parties were informed that, upon receipt of the transcript, the case would be taken under advisement. The court has received the transcript. I now decide the case.

On all of the testimony, exhibits, stipulations and other evidence properly introduced at trial or otherwise before me, and the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda, and arguments of the parties, I find the following facts and rule as follows.

III. FINDINGS OF FACT

1. Plaintiffs own the property known as 28 Kasey Court, Uxbridge, Massachusetts by deed dated July 9, 2003 from Fred Hutnak Development Corp., Inc. to Edward S. Clish and Allison L. Clish and recorded with the Registry in Book 30848, page 330 on July 18, 2003.

2. Defendants own the property known as 44 Kasey Court, Uxbridge, Massachusetts by deed dated August 12, 2003 from Fred Hutnak Development Corp., Inc. to Steven E. Paradise and Helen M. Paradise and recorded with the Registry in Book 31254, Page 170 on August 15, 2003.

3. Both Plaintiffs' and Defendants' properties are shown on a plan ("Plan") entitled "Stonecrest II, a Definitive Subdivision Plan in Uxbridge, Mass. Prepared for Fred Hutnak Development Corp., Inc., P.O. Box 263, Uxbridge Mass. 01569 Scale 1" = 100' February 2002" by Andrews Survey and Engineering, Inc., recorded with the Registry in Plan Book 791, as Plan 92 on February 27, 2003. On the Plan, Plaintiffs' parcel is shown as lot 8R, and Defendants' parcel is shown as lot 13R.

4. Plaintiffs' parcel and Defendants' parcel abut along the length of Plaintiffs' eastern boundary.

5. I credit the testimony of Gary Hutnak, president of the Fred Hutnak Development Corp., Inc. ("Hutnak Development Corp."), developer of the Stonecrest II subdivision, that he directed that the restrictive covenants be included in the individual deeds out, to limit the improvement and use of lots within the development to residential use.

6. Restrictions were placed in the deeds to each property sold in Stonecrest II.

7. The lots that comprise Stonecrest II were, at the time of the development and initial sale of those lots, located in an agricultural zoning district.

8. Both Plaintiffs' and Defendants' lots are improved with a single-family residence.

9. The Stonecrest II Subdivision, as shown on the Plan, consists of twenty parcels.

10. The deeds to each parcel in Stonecrest II, all of which are in evidence, have similar restrictions to those found in Defendants' deed, and seven of the nine restrictions in Defendants' deed are identical for all parcels conveyed.

11. The deed to Defendants' Property restricts use of the Property with the following language: "The property as described above is conveyed subject to the following restrictions imposed by the Grantor which are not reciprocally imposed on any remaining land of the Grantor unless this Grantor specifically in writing so restricts all or a portion of his remaining land."

12. The restrictive covenants set forth in Defendants' deed are in language as follows:

(1) The property so conveyed shall be used only for residential home construction;

(2) No trailers, motor homes, mobile coaches, or log cabin type homes shall be constructed on the property;

(3) No livestock meaning cattle, swine, horses or sheep shall be maintained on the property nor shall any poultry, waterfowl, ducks and/or geese be maintained on the property;

(4) No building or other structures shall be placed upon the above-described lot closer than thirty (30) feet from the sidelines of the lot;

(5) No oriental style homes, Spanish-adobe homes, cinderblock houses, Quonset huts or geodesic dome houses shall be constructed on the property;

(6) No owner shall allow any motor vehicle to be parked on the street in front of the lot herein conveyed;

(7) No owner shall allow any dog to run unattended and off its leash;

(8) No so-called "inlaw apartment" or other separate living apartment shall be allowed in the within structure or any out structure;

(9) No commercial vehicles of any type, manufacture or design will be parked on the premises.

13. Gary Hutnak was the president and treasurer of the Hutnak Development Corp., when the Stonecrest II was subdivided, when the houses were built, and when the individual lots were conveyed to Plaintiffs and Defendants.

14. I credit the testimony of Gary Hutnak that, based on local land use rules, the lots were required, at the time they were created, to be around 2 acres in size and to have around 300 feet of frontage.

15. I credit the testimony of Gary Hutnak that he directed Joseph Cove, the lawyer representing the developer entity, to place restrictive covenants in all of the deeds in the Stonecrest II development.

16. I credit the testimony of Gary Hutnak that he intended the Stonecrest II development to be a residential development restricted to residential uses.

17. I credit the testimony of Gary Hutnak that he did not intend for any property in the Stonecrest II development to be used for commercial purposes.

18. I credit the testimony of Gary Hutnak that he placed similar deed restrictions in all of the deeds so those buying a home in Stonecrest II would know that those who had already purchased homes were subject to the same rules.

19. I credit the testimony of Joseph Cove, who practiced law as an attorney in Uxbridge, Massachusetts, that he has represented the Hutnak Development Corp. in all of its development work since its incorporation, and that he drafted the Defendants' deed restrictions in consultation with his client, Hutnak Development Corp.

20. I credit the testimony of Joseph Cove that, absent any title restrictions, the underlying agricultural zoning for the land out of which Stonecrest II was developed would have allowed for stables, cow barns, chicken houses, and, in some respects, restaurants and motels.

21. I credit the testimony of Joseph Cove that, because of the applicable agricultural zoning law provisions, his client directed him to insert the first deed restriction--that the property shall be used only for residential home construction--to prevent agricultural, horticultural, restaurant, or hotel buildings from being placed on the property. In light of all of the credible evidence, however, I do not find that this was the limit of the reach of this language.

22. I credit the testimony of Joseph Cove that the Hutnak Development Corp. was concerned about purchasers erecting barns and stables on the lots.

23. I find the statement in the letter of October 19, 2015 from Joseph Cove to Attorney Morse that "each of the lots really is intended for residential use because of the size of the lot" reflects his understanding of the use the Hutnak Development Corp. from the outset intended for each of the lots in the Stonecrest II development.

24. On March 2, 2015, Helen Paradise applied for a commercial kennel license with the Town of Uxbridge ("Town"), which was issued on March 9, 2015. The license is for nine dogs, and the kennel activity was stated to be "show dogs, breeding."

25. On March 2, 2015 Helen Paradise received a business certificate from the Town. The certificate stated that the business type was "dog breeding," and the name of the business was listed as "Paradise Dachshunds," with a Massachusetts identification number of 2900.

26. On January 4, 2016 Helen Paradise applied for a commercial kennel license with the Town, which was issued on January 7, 2016. The license is for twelve dogs and the kennel activity was stated to be "show dogs, companionship, breeding."

27. None of the dogs kept on the Property now live, or in the past have lived, in a structure separate from the Paradise home.

28. The only building constructed on the Property is a residential home with accessory structures including: a pool, a patio, raised garden beds, fences, and landscaping surrounding the pool, patio and gardens.

29. I credit the testimony of Helen M. Paradise that at the time of trial there were 12 dogs living in Defendants' house, and that the number of dogs living there varies.

30. I credit the testimony of Helen Paradise that she does not have an occupation outside of the home, nor has she had such an occupation since June of 2013.

31. I credit the testimony of Helen Paradise that she frequently is at home both day and night, where she engages in breeding miniature dachshunds and training them for dog shows.

32. Helen Paradise is on the Board of Directors of the Bay Colony Dachshund Club and a member of the Connecticut Yankee Dachshund Club.

33. The kennel kept by Defendants is not a "hobby kennel" which is a defined term in the Town of Uxbridge Kennel Regulations (effective January 1, 2008). "Hobby kennel" is defined as "[t]en or fewer dogs owned for personal companionship. In the event that any sale, trade, boarding, breeding or similar use is conducted, the operation shall be considered a commercial kennel."

34. Defendants have a "personal kennel" as that term is defined in G.L. c. 140, § 136A.

35. Defendants are engaged in breeding dogs, showing dogs, and selling dogs, primarily puppies, in private sales.

36. I generally credit the testimony of Helen Paradise that Defendants began breeding puppies because it is too expensive to purchase award winning show dogs.

37. I credit the testimony of Helen Paradise that she personally owns all of the dogs present on the Property.

38. Helen Paradise contracted for stud services in 2012 in which her dogs were bred to three different male dogs. These contracts included payment amounts of $600 in one contract and $750 in another. In two stud services contracts, there were limits on the resale and future breeding of offspring.

39. I credit the testimony of Edward Clish that he discovered the details of what was occurring at Defendants' home by reviewing a website for Paradise Dachshunds.

40. I credit in part Helen Paradise's testimony about her website for Paradise Dachshunds. I credit that she is responsible for the site's content, that pictures of her dogs are on the website, that she changes the content, and that she advertises puppies for sale on her website.

41. I credit Helen Paradise's testimony that she does not groom dogs at her house.

42. I give little weight to Helen Paradise's testimony that she does not know what is on her website, and that the prices listed on the website may not be accurate. Rather I find the information listed on the Paradise Dachshunds website pages introduced into evidence is generally consistent with the breeding and sale of puppies that actually was posted by Helen Paradise on the site, and that actually occurred.

43. I credit the testimony of Helen Paradise that Defendants sell all of the puppies that they do not keep as show dogs, and sell some older retired show dogs.

44. Potential purchasers of Paradise Dachshunds puppies were instructed to contact Defendants, and were encouraged to reserve a puppy in advance.

45. Potential puppy purchasers are sometimes placed on a waiting list.

46. On October 12, 2014, on the Paradise Dachshunds website, under the heading "Current Wait List depending on availability and choices:" were listed eleven potential purchasers along with the type of puppy they were waiting to purchase, two of whom were listed as having applications pending Defendants' review.

47. On October 12, 2014, on the Paradise Dachshunds website, eight puppies were shown, with a photograph of each, six of which were offered as puppies for sale.

48. On October 12, 2014, on the Paradise Dachshunds website, two upcoming litters of puppies with a description of the puppies to be born were listed.

49. On November 1, 2014, on the Paradise Dachshunds website, under the heading Special Offers, the website stated that "any puppy owner who puts a title on their dachshund (Obedience, Agility, Earth dog, Field trial, Confirmation) will receive a $50 rebate."

50. On November 1, 2014, on the Paradise Dachshunds website, under the heading Special Services, and the subheading "We offer stud services to our breeder friends:" are listed "fresh chilled, extended, shipped FedEx (provided by Slade Veterinary)" and "Natural service or Side by side AI."

51. I credit the testimony of Helen Paradise stating that Slade Veterinary helps with breeding; this fact is corroborated by a statement on the Paradise Dachshunds website, stating that Defendants work with Slade Veterinary as a reproduction specialist for breeding of the dachshunds.

52. There is no evidence I credit showing that Helen Paradise used her male dogs for breeding, but I find that she did offer them for breeding as part of a commercial transaction on the Paradise Dachshunds website.

53. On October 12, 2014, on the Paradise Dachshunds website, under the heading "Effective October 1st puppy prices are:" are listed:

(a) "$1,800 for males and are higher in certain breedings"

(b) "$1,900 for females and are higher in certain breedings"

c) "Anyone wishing to purchase a show prospect will have to contact me. Show puppies start at $2,300 based on the parents (at least one parent will always be a finished champion)"

54. I find that Defendants sell puppies for prices starting between $1,800 and $2,300.

55. I credit the statement on Defendants' website that they "carefully select each of the parents studying both their pedigree, and how they will improve each other when bred together."

56. I credit the testimony of Helen Paradise that the dogs stay in crates on the Property, but are allowed to move between three large rooms in the house.

57. Defendants have several fenced yard areas on the Property in which the dogs exercise and play.

58. I credit the testimony of Helen Paradise that the dogs are let outside four to five times per day, and that each trip outside is documented.

59. I credit the testimony of Helen Paradise that, to get them ready for shows, she walks the dogs on the front lawn of the Property and up and down the driveway.

60. I credit the testimony of Helen Paradise that she has a number of upside down plastic crates in the back yard of the Property where the dogs rest.

61. I credit the testimony of Helen Paradise that she goes to dog shows, taking certain dogs with her, almost every weekend.

62. I credit the testimony of Helen Paradise that individuals purchasing dogs sometimes come to her house to pick them up, and that sometimes she sells the dogs in other locations.

63. I credit the testimony of Helen Paradise that she generally reflects accurately in her tax filings the income received from puppy sales and activities, as well as the costs associated with breeding and showing dogs.

64. I find that the income reflected in Defendants' tax filings represents the money earned by Defendants through the sale of puppies. Based on the reported income I infer that: with $1,500 in income, Defendants sold one puppy in 2009, with $12,925 in income, Defendants sold between five and seven puppies in 2010, with $17,650 in income Defendants sold between seven and ten puppies in 2011, with $14,300 in income Defendants sold between six and eight puppies in 2012, and with $ 17,290 in income Defendants sold between seven and ten puppies in 2013.

65. I find that Defendants, between 2010 and 2013 sold, on average, between six and nine puppies per year. The aggregate income from 2009 to 2013 comes to about $65,000.

IV. DISCUSSION

A. Standing

Defendants challenge Plaintiffs' standing to bring this action to enforce the restrictions in Defendants' deed. First, there is the question whether the Plaintiffs, next door neighbors to the Defendants, can obtain injunction from the court given that the restrictions in the Defendants' deed do not designate the Plaintiffs or their land as holding the benefit of the restrictions. Defendants also assert that, even if Plaintiffs are not flat out statutorily barred from enforcement because of the deed's failure to identify Plaintiffs' land as benefited, Plaintiffs failed to show that there was any intention in the Stonecrest II deeds that Plaintiffs be entitled to enforce the restrictions. Defendants also deny that "the restriction [was of] of actual and substantial benefit" to Plaintiffs at the time of the proceedings, as statutorily required, see G. L. c. 184, § 30.

There is the threshold question whether the statute here would under any circumstance authorize the Plaintiffs to obtain injunctive relief for violation of the asserted restrictive covenants, given that Plaintiffs and their land are not expressly identified in the seminal deeds as holding the benefit of those restrictions. The Legislature made wide-sweeping changes to the common law governing recorded restrictions in the early 1960's, and these changes, intended to clarify titles, were enacted to eliminate old and obsolete restrictions, and to be far more demanding of plaintiffs seeking judicial enforcement of most private restrictive covenants. One example of these legislative limits which I must address in this case is whether the failure to identify explicitly the land holding the benefit of the Stonecrest II lot deed restrictions rendered them unenforceable by the Plaintiffs. "At common law, if a deed or other instrument imposing a restriction on land was silent or ambiguous with respect to what other land was to be benefited by the restriction, the identity of the benefited lands could be determined by resort to inference from the situation of the property and the surrounding circumstances." Brear v. Fagan, 447 Mass. 68 , 71 (2006) (internal quotation marks removed). The legislature replaced this long-standing rule by establishing, in G.L. c. 184, §§ 26-30, which property owners or interest holders could (and could not) enforce recorded restrictions. Id., at 71-75. The legislature acted in the early 1960's to limit the reach and effect of record restrictions, including by modifying some of the common law rules allowing a court to infer who held the right to enforce restrictions. A number of exceptions to enforcement contained in these statutes do not apply to this case, but there are two relevant sections, G.L. c. 184, §§ 27 (a) and 30, which control who is able to enforce a recorded restriction.

The restrictions in Defendants' deed do not expressly benefit Plaintiffs or Plaintiffs' parcel. However, Plaintiffs assert that, as direct abutters, they can enforce the restrictions in Defendants' deed pursuant to G.L. c. 184, § 27 (a) (2), which allows enforcement if the "person seeking enforcement . . . is an owner of an interest in benefited land which either adjoins the subject parcel at the time enforcement is sought or is described in the instrument imposing the restriction and is stated therein to be benefited." The Court in Brear v. Fagan found this statutory language to be ambiguous, in that it could mean either (i) that an adjoining property owner only is able to bring an enforcement action if that owner's parcel is expressly set out as benefited under the controlling instrument, or (ii) that an owner of directly adjoining land may bring an enforcement action even if their property is not described in that instrument, at least if the intention to benefit that adjoining land is demonstrated to the court. Under this second interpretation of the statute, the legislative amendments to the restriction statutes cut off the right to enforcement by undesignated land owners who did not own adjoining land, but preserved the opportunity, long available under prior common law, for the owner of adjoining land to show that his or her parcel had been intended to enjoy the benefit of the restriction, and thus still obtain injunctive relief. The Brear court recognized, but did not resolve, this ambiguity in the statute. [Note 3]

In the wake of Brear, lower courts had grappled with this question, some concluding that the interests of certainty of record title, particularly given the restriction statutes' remedial goals of clearing titles of restrictions, argued in favor of reading the statute to require specific mention of the adjoining land as a benefited parcel if a court was to be able to enforce the restriction. See, e.g., Spencer v. Slavin, 19 LCR 17 (2011) (remanded for reconsideration in light of Rosenfeld (see infra) Appeals Court Case 2011-P-0527).

The Appeals Court, when presented with this question subsequently, concluded that "G. L. c. 184, § 27 (a) (2), should be interpreted in accordance with the latter of the two alternatives identified in Brear: that an owner of land that adjoins the restricted land is entitled to enforce a deed restriction, whether or not the instrument imposing the restriction contains an express statement that the adjoining land is intended to benefit from the restriction." Rosenfeld v. Zoning Bd. of Appeals of Mendon, 78 Mass. App. Ct. 677 , 682 (2011). Plaintiffs, then, as private, residential, directly abutting property owners, are not statutorily prevented from obtaining judicial enforcement of this deed restriction and are able to show their standing before the court under G.L. c. 184, § 27 (a). See Kelley v. Cambridge Historical Comm'n, 84 Mass. App. Ct. 166 , 174 (2013) ("Rosenfeld . . . involved an ordinary private deed restriction whose very purpose is to benefit adjoining property."). In this case, if Plaintiffs show that the intended purpose of the contested Stonecrest II restrictions was to benefit and provide enforcement rights to individual adjoining landowners, the failure to point expressly to Plaintiffs' land as benefited in the deed into Defendants does not as matter of law strip away Plaintiffs' opportunity to obtain judicial relief.

There is a distinct inquiry required under another section of these restriction statutes, which limits broadly who is able to bring an action to enforce a deed restriction injunctively (ie., in a manner other than by award of money damages). G. L. c. 184, § 30 states "[n]o restriction shall in any proceeding be enforced or declared to be enforceable . . . unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement." The question whether Plaintiffs actually and substantially benefit from the restrictions in Defendants' deeds is one for the court to determine, and if the court finds that this is so, the court must then determine if any of the further limits on judicial enforcement set out in § 30 apply. [Note 4] See Kline v. Shearwater Association, Inc. 63 Mass. App. Ct. 825 , 831 (2005); Connaughton v. Payne, 56 Mass. App. Ct. 652 , 656-657 (2002).

I find that Plaintiffs' parcel was an intended beneficiary of the restrictions in Defendants' deed, and that Plaintiffs and their land are actually and substantially benefitted by the restrictions. I credit the testimony of Gary Hutnak that these lots were required to be quite large with a significant amount of frontage, and credit the testimony of Joseph Cove that, given the underlying zoning, the Hutnak Development Corp. was concerned that individual owners might use the parcels for agricultural or commercial purposes. I find that the developer intentionally placed the restrictions in the several deeds to allay this concern. I find that the developer placed these restrictions in Defendants' deed, and in all of the Stonecrest II deeds, to create certainty, not just for the developer during the period of initial lot sales, but for the ongoing benefit of each individual home buyer, that the neighborhood would be and would remain residential in character. The restrictions, I find and rule, were intended not only to protect the developer while it sold off lots, but, beyond that, to assure home owners that each of the other house lots next to them would remain subject to consistent rules intended to preserve and make meaningful these restrictions on the use of the nearby properties, going forward.

These restrictions are fairly uniform across the Stonecrest II deeds, and limit the type of animals and vehicles that can be kept on the properties, the manner in which they can be kept, and the types of structures that can be built on the properties. Based on the credible evidence, I conclude that these restrictions were crafted to aid individual lot owners, and not just the initial subdivider, even though the restrictions are similar but not identical in each Stonecrest II deed. See Canty v. Donovan, 361 Mass. 879 , 880 (1972) (absolute identity of restrictions not essential to creation of common development scheme). I find that the purpose of the restrictions was the orderly and predictable development of a residential neighborhood, and the ongoing preservation of that type of neighborhood for the benefit of the individual homeowners. Plaintiffs as owners of a parcel in Stonecrest II were intended beneficiaries of the restrictions in Defendants' deed, and they currently are benefited by those restrictions, including, relevant here, those that prohibit and limit a number of non-residential activities.

In drawing this conclusion, I do not decide that the Stonecrest II restrictions are entitled to enforcement as a common scheme of development restrictions. Cf. Snow v. Van Dam, 291 Mass. 477 (1935). "In the absence of express statement, an intention that a restriction upon one lot shall be appurtenant to a neighboring lot is sometimes inferred from the relation of the lots to each other. ... But in many cases there has been a scheme or plan for restricting the lots in a tract undergoing development to obtain substantial uniformity in building and use. The existence of such a building scheme has often been relied on to show an intention that the restrictions imposed upon the several lots shall be appurtenant to every other lot in the tract included in the scheme. ..." Id., at 481 (citations omitted). After Brear's interpretation of the legislative alteration of the common law rules for enforcement of restrictions, first adopted in 1961, it is difficult to see how the doctrine of common scheme development restrictions, as articulated by Justice Lummus in Snow, above, survives generally. Although prior common law allowed owners of subdivision lots, each against the others, to enforce commonly imposed restrictions, the Brear result, interpreting the statute to require explicit denomination of the land benefited by the restriction, recognized a statutory change to that common law. Were it not for the fact that Plaintiffs' lot lies alongside Defendants', the absence of an express designation of Plaintiffs' land as benefited by the restriction would be fatal to Plaintiffs' request for injunction. But G.L. c. 184, §27(a), as it has been interpreted by the Appeals Court in Rosenfeld, allows a court, on appropriate evidence, to infer an intention that an adjoining landowner holds the benefit of a restriction, even though there is no express right built into the instrument itself. Other lot owners, restricted in their deeds with the same language, but not adjoining the lot in question, would be unable to seek enforcement.

Having concluded that Plaintiffs are not statutorily prevented from obtaining judicial enforcement by injunction of the restrictions in Defendants' deed, and that there was an intention that Plaintiffs be able to seek that enforcement, I now turn to whether any of the exceptions set out in G.L. c. 184, § 30 apply in this case, and operate to deny Plaintiffs their requested enforcement. Given the facts I have found as set out above, and reviewing the exceptions in that section, I find that circumstances are not changed in the neighborhood, nor is the need for such restrictions materially reduced so as to make the deed restrictions "obsolete or inequitable to enforce." The parties' parcels continue to exist substantially as configured by the initial subdivision, and as conveyed to the parties themselves. Their lots and the houses built upon them retain the same character as when the Stonecrest II development was rolled out in the early 2000's, and the neighborhood retains the same character now as then. Nothing in the evidence convinces me that the zoning law (or other law, local or otherwise) has grown up to provide enforcement opportunities that would make the property restrictions at issue in this case superfluous or obsolete. I find enforcement of the restrictions is not inequitable due to the conduct of the Plaintiffs as the persons entitled to enforce them, and that Plaintiffs' parcel is reciprocally subject to the same restrictions. I find that enforcement would not impede reasonable use of Defendants' parcel for that which it is most suitable, contribute to deterioration of properties, or result in blight or other adverse conditions. Lastly, nothing in the evidence shows that enforcement, if indicated on the meaning of the restrictions, and appropriately tailored, would be inequitable or otherwise contrary to the public interest. I find and rule that Plaintiffs are not barred by these provisions of G.L. c. 184 § 30 from bringing this action to enforce by way of injunction the restrictions in Defendants' deed.

B. Interpretation of the Restrictive Covenants

Having determined that the statutory provisions governing the Plaintiffs' request for judicial enforcement of the restrictions in Defendants' deed do not bar Plaintiffs from obtaining that relief, I must decide whether, on all the evidence I credit, the activities of the Defendants do violate those restrictions. I am convinced and find, based on the testimony and other evidence I find persuasive, that the purpose of the restrictions was to assure Stonecrest II home buyers, such as Plaintiffs, that they would be purchasing and living in a home in a residential neighborhood with a particular residential appearance, character, and attributes, and that certain activities on, and uses of, neighboring property would not be allowed. I now turn to the issue that I did not decide on cross motions for summary judgment--the meaning of the first restriction in Defendants' deed that "[t]he property so conveyed shall be used only for residential home construction." Plaintiffs assert that this restriction ought to be read broadly to mean both that only a residential home structure may be built on the property, and that the Stonecrest II properties, once so improved, were to be used only for residential purposes. Defendants, relying on two different arguments, say that this restriction was meant to be far more narrow and short lived. Defendants argue on the one hand that this restriction only goes to what may be constructed on the Property, and that so long as no other building other than a residential dwelling is placed on the Property, there is no breach of this restriction. Defendants also point to the introductory language which comes before the numbered restrictions in the deed: "The property as described above is conveyed subject to the following restrictions imposed by the Grantor which are not reciprocally imposed on any remaining land of the Grantor unless this Grantor specifically in writing so restricts all or a portion of his remaining land." This language, Defendants assert, should be read to mean that the grantor, Hutnak Development Corp., is the intended beneficiary of the restriction, and that after a residential home was constructed on the property, this restriction no longer had any effect.

This second argument of Defendants can be dispensed with quickly. I have already found that Plaintiffs were an intended beneficiary of these restrictions. I credit the testimony of Gary Hutnak and Joseph Cove that the restrictions were placed in the deeds to make sure, at a minimum, that the underlying zoning did not alone control what occurred on the Property. I credit the testimony of Gary Hutnak that he intended to give confidence to home buyers that their neighbors were similarly restricted in the kinds of homes they could build, as well as in the uses they each could make of their property once the buildings were erected. I also credit the testimony of Joseph Cove, who stated that the underlying zoning allowed agricultural uses, hotels, and restaurants, and that the deed restrictions were written to keep these activities, otherwise allowed of right, from occurring. While I am confident that the Hutnak Development Corp. also intended to benefit by being able to sell the remaining home lots, I find that a scheme of development consistent across all the lots was what the original grantor intended to create by use of these restrictions, and that the scheme was that of a neighborhood, carefully kept residential in character, with houses on large lots.

I now turn to Defendants' first argument, that the language of the restriction only limits what can be constructed or built on the property, and does not go to use of the property. I conclude that this reading of the restriction is oppressively narrow, and would lead to an absurd result. The properties each were sold to the parties already improved with a residential structure. There would be no real purpose in including a covenant in a deed that said the property "shall be used only for residential home construction" if that language was not to mean that the deed required ongoing use of the newly constructed dwelling as a residential home. The construction of standard single-family dwelling structures on each of the lots of the parties was already accomplished at the time the two parcels were conveyed to the parties by the developer, Fred Hutnak Development Corp., Inc., weeks apart in the summer of 2003.

The deed restriction language, "[t]he property so conveyed shall be used only for residential home construction," if read literally, might mean that the property can only be used as a location upon which to construct a residence, and that any use of the property after that construction ended, as, for example, by occupying the newly built dwelling, even for residential purposes, would be prohibited. That interpretation would yield absurdity; there would be no reason to build a house only to ban residency in it. The better construction of this wording is that the construction of a residential home is to be treated as the starting point of what the restriction intended to accomplish, and that it reaches as well the use and occupancy of that home following its construction.

This conclusion, which I as the trier of fact find to be the correct one, is consistent with the testimony of witnesses Gary Hutnak and Joseph Cove. I credit the testimony of both of these witnesses in support of this finding that the language of the covenant was designed to limit the use of the property to residential use. I so find in part because the author of these restrictions, Joseph Cove, testified that the language of the covenants was selected because the underlying zoning was agricultural, and Hutnak Development Corp. wished to limit any non-residential otherwise allowed uses of the Stonecrest II properties.

This finding also is bolstered by review of the other restrictions. The third restriction states: "No livestock meaning cattle, swine, horses or sheep shall be maintained on the property, nor shall any poultry, waterfowl, ducks and/or geese be maintained on the property." Personal ownership of horses, in particular, could be deemed "reasonably related to the primary residential use" of a property. Simmons v. Zoning Bd. of Appeals of Newburyport, 60 Mass. App. Ct. 5 , 9 (2003). Horses, however, need shelter, and Joseph Cove was clear that the intent of the deed restriction was to prevent even otherwise allowable residential uses, such as keeping horses as pets, from occurring in the Stonecrest II neighborhood. This conclusion is bolstered by the language of other deed restrictions such as "[n]o commercial vehicles of any type, manufacture or design will be parked on the premises." The focus of the restrictions, considered generally, is to establish and preserve this new neighborhood into which the parties moved, of an exclusively residential (and definitely not a commercial) look, feel, and character. Even parking a commercial vehicle outside a home would run counter to this intention. All of this convinces me that these restrictions were designed, as stated by Joseph Cove, to limit the Stonecrest II properties to residential use, by prohibiting otherwise allowed commercial and agricultural uses.

I turn now to the question whether Defendants' activity on the Property is commercial in nature, and if so, whether their activity is incompatible with the residential use of the Property and violative of the intention and purpose of the restrictions. The restrictions themselves aid me in determining where the boundary lies between commercial activity and residential activity. Certain deed restrictions focus on the visual character, the "look and feel," of the neighborhood–including those banning "oriental" style homes, Spanish-adobe homes, cinderblock houses, Quonset huts and geodesic dome houses. Other restrictions limit even certain kinds of residential use, for example having "in-law apartments." All motor vehicles are required to be parked in driveways, and parking any kind of commercial vehicle on the property is prohibited. Just as it is conceivable for horses to accompany residential use, and in-law apartments to be built within a dwelling used for residential purposes, it also is conceivable that parking commercial vehicles (which might be used by residents as an adjunct to their daily work elsewhere) in the driveway outside their home is consistent with residential use. Taken together, I find that these restrictions are intended to limit uses that might in some regards be treated as residential in nature, by insisting that the properties be used in a manner that customarily promotes and protects traditional distinctive characteristics of a single-family residential neighborhood that exclusively contains large and attractive twenty-first century single-family homes on substantial lots.

Defendants have at least twelve dogs in their house. These dogs are bred regularly and several litters of puppies (between six and nine puppies per year on average) are sold. Certain puppies are kept for show purposes, and older show dogs are sold. The dogs are let outside four to five times a day, have a specific and extensive exercise schedule, and have a specific training regime. On many weekends Helen Paradise takes some dogs to dog shows. Defendants have a website that describes the dogs and their parentage, and advertises them for sale in the open market. Defendants give members of the public the opportunity to be on a waiting list to buy puppies before they are born. Certain of Defendants' customers come to the house to view and to take delivery of puppies they have purchased. There is a connection between the price a puppy will fetch and whether it has had success, or likely will have success, in a dog show; these dogs are not raised, kept, or marketed just as ordinary pets. Defendants have a business license to sell dogs, and have reported material income from dog sales on their tax returns for the last several years. Helen Paradise testified that purchasing a show quality dog is an expensive proposition.

Based on all of this evidence, I find that the Defendants are engaged in a commercial canine breeding and sales operation. I do not find this only because the operation brings in material amounts of income, but because of the structure of the operation, which has regular puppy litters and ongoing well-marketed sales. I find that while Defendants may not profit in a very substantial way from selling dogs, they also generate enough money to defray what otherwise would be the significant expense of purchasing show quality dogs and training them for dog shows. I find that Defendants' commercial operation is designed to make money for the Defendants, and to make showing dogs at the very least a "break-even" proposition. Having found that Defendants are engaged in a commercial dog breeding operation, the next question is whether this activity is consistent with residential use of the Property, as controlled by the deed restrictions.

Plaintiffs brought this case to enforce the restrictions placed by deed on the Defendants' title. Plaintiffs did not resort to the zoning laws and seek enforcement of them in the town; it is not clear whether there would have been a valid basis for Plaintiffs to have proceeded in this alternative way. I recognize that, as a result, I must apply the law as it governs the interpretation and enforcement of private property servitudes in deciding whether, and to what extent, the Defendants are violating these restrictions, and, if they are, what remedies would be appropriate. Nevertheless, I find it helpful and appropriate to look, at least in part, at cases which arise under the zoning laws. Instructive are those which treat the somewhat analogous issues that arise in zoning districts allowing only residential use, where certain activities are said to exceed that allowed use.

I find helpful, for example, the reasoning in Hume v. Building Inspector of Westford, 355 Mass. 179 (1969), which involved facts not that distant from the case at bar. In Hume the question was whether the keeping in a kennel of fourteen dogs raised for show purposes was accessory to a residential use under the town zoning bylaw. Id. at 179-180. The bylaw in that case allowed only accessory uses "of a type 'customarily incident to' an expressly permitted use," which meant a use that would customarily accompany residential use. Id. at 182. The court found that this number of dogs kept in this manner was not customarily incidental to residential use. In Hume the owner had not sold puppies for some time, but rather had given away over thirty puppies. In the circumstances of that case, the Supreme Judicial Court concluded that "a kennel for a substantial number of dogs does not constitute a permissible [use] accessory or incidental [to the permitted residential] use." Id. at 182. Similarly, in the case now before this court, I accept that some accessory or incidental keeping of dogs as pets certainly would be proper under the deed restrictions. Given the magnitude of the commercial activity engaged in by the Defendants, and the impact that that activity has on the neighborhood and the Plaintiffs, however, I conclude that what the Defendants have been doing over a number of years is keeping and regularly breeding (as well as offering for sale) a large enough number of dogs to make that activity neither a customary residential use, nor accessory or incidental to residential use.

It also makes sense to measure whether or not the restrictions are being violated by looking at the impacts that the Defendants' activities produce on the surrounding neighborhood, in general, and on their next door neighbors, the Plaintiffs, in particular. I credit their testimony that the extended presence of so many dogs on the Defendants' property has led to intrusive noise heard by the Plaintiffs regularly that goes beyond what one would experience living next to a home with a small number of dogs kept as pets. I also accept that, while not a constant occurrence, there have been a number of times that the street shared by Plaintiffs and Defendants is used by paying customers of the Defendants, at times driving around looking for their destination, who are in search of the Defendants' property so they can view prospective dogs to purchase, and also to consummate the sale of a puppy. There is no doubt that the Defendants' dog activities increase somewhat traffic to the area; none of these customers would otherwise have any reason to be there. The activities of the Defendants intrude on the immediate neighborhood shared by the parties in a manner different than would a purely residential use.

Unlike the defendant in Hume, Defendants do sell a more than small number of puppies, garnering material sums of money. Defendants extensively advertise the dachshunds online, and maintain a waiting list of people wishing to buy puppies, including "show prospect" dogs. Defendants' sales, amounting to an average of six to nine dogs per year for the past several years, indicate to me, as trier of fact, that the Defendants have crossed the line, going beyond subordinate, occasional, incidental dog breeding and selling activities. Defendants have been engaged in commercial activity directly in conflict with a primarily residential use of their property. This also is reflected in the kennel license that Defendants have from the Town, which distinguishes between a hobby kennel and a commercial kennel based on whether sale and breeding are occurring. I find that neither Defendants' breeding operation and ownership of around twelve dogs, nor Defendants' advertisement and regular sale of dogs while holding a commercial kennel license, are customary uses of a single-family residential home in a neighborhood restricted against use for non-residential purposes. What the Defendants have been doing therefore violates the restriction by which their residential property is bound.

This conclusion certainly does not mean that Defendants, or anyone in the Stonecrest II neighborhood, is prohibited from owning dogs. The restrictions themselves contemplate that dogs will reside there, because they limit dogs from running unattended off-leash. And having a dog as a pet in a home is without doubt a quintessential residential activity. The court does not read the restrictions involved here to mean that Defendants are forbidden from having an occasional litter of puppies. What goes beyond incidental residential use, though, is both the large and variable number of dogs, and the regular breeding of dogs in the home for profit. The total number of dogs moving through the home are too great. "Keeping elephants is different than keeping a dog . . . . Activity of a certain magnitude is no longer incidental." Garabedian v. Westland, 59 Mass. App. Ct. 427 (2003). I conclude that the boarding of around twelve dogs in the home, many of which regularly are bred and advertised publically for sale, and then sold, exceeds what is allowable under the restrictions in Defendants' deed.

I conclude that the court, acting in equity to give meaning to the restriction, and to balance the competing interests of the parties, needs to establish limits on the type and magnitude of the activities Defendants conduct on their Property. To be faithful to the restrictions, and to provide meaningful relief to the Plaintiffs against violation of those restrictions, several types of controls are indicated. First, there can be no sales activity marketed and transacted in any way that allows any in person sales functions with third parties to take place at the Property. Defendants cannot receive prospective or actual buyers at the Property. All showing of prospective dogs to be sold, and the delivery of them to the buyers, must take place elsewhere. Similarly, no breeding contracts are to be pursued or consummated in person on the Property. The dogs involved in potential or actual stud services, and their owners and handlers, must conduct all their in person interactions away from the Property.

There also need to be limits on the numbers of dogs, both puppies and adults, kept at any one time on the Property. Only in this way will the intrusive effects of keeping too many dogs, including, particularly, the noise they generate, be kept reasonable. First, while Defendants ought not be prohibited from having a littler of puppies in their home, once the number of those litters multiplies, the use certainly becomes improperly commercial, and the noise and other impacts on the Plaintiffs rise too high. The judgment that enters in this case will prohibit Defendants from keeping on the Property at any one time more than one litter of puppies under the age of a year, and more than six puppies in total, whichever is greater. The number of adult dogs--a year in age or more--also must be limited. The judgment will provide that no more than four adult miniature dachshunds of either sex are to be kept on the Property. (These prohibitions assume that miniature dachshunds, and no other breeds, are being kept on the Property; if the Defendants propose to alter the breeds of dogs involved, that certainly could affect the maximum number of dogs allowed, something the Defendants and Plaintiffs would need to address among themselves, or, failing that, have the court resolve.)

I do not find any need to enjoin Defendants from training dogs. Plaintiffs introduced no evidence that I credit to show that the training of the Defendants' own dogs, by itself, including for dog show success, is intrinsically commercial in nature, or, standing alone, causes actual and substantial harm to the Plaintiffs. I find training dogs may be a common part of dog ownership, and in appropriate cases incidental to residential use of the Property. This is on the understanding, of course, that any training is only of the dogs owned by the Defendants and permitted to be kept by them on the Property. Training of any other dogs, or of a larger number of dogs, and any paid training services for others, would be prohibited by the restrictions. Nor do I find it necessary for Defendants to remove or alter structures or fences on the Property. Plaintiff introduced no evidence that I credit to show that Defendants' fences and other outdoor structures are inconsistent with residential use of their home. It is common for residential owners to fence in areas and create small ancillary structures for their pets to use. While I accept that having dogs outside allows more of their barking and other noises to be audible off the Property than if the dogs are confined at all times inside, that would be a harsh and unworkable remedy, and is not indicated to achieve compliance with the restrictions. By limiting the number of dogs allowed on the Property, the noise impacts will be addressed. [Note 5]

Finally, I see no need to bar Defendants from advertising for sale to the public and others dogs and puppies, including by way of a website. I am not convinced that running this sales operation out of the home on the Property is a use genuinely residential in character, but neither do I see the need, to protect the Plaintiffs' legitimate interests, for an injunction which bans that activity. This is based on the fact that the limits the judgment will impose, including on the number of dogs on the Property, and preventing any visits to the Property by any actual or prospective dog purchasers or breeders, will sufficiently mitigate the adverse effects of that operation as they most tangibly affect the Plaintiffs.

I think it best that the parties, through counsel, confer to see if and how much they may be able to agree on the language of the judgment that will enter in this case; that judgment is to be consistent with the findings and rulings I have made in this decision. Within fourteen days after the date of this decision, Plaintiffs are to file and serve on the Defendants a draft of a proposed judgment. Within fourteen days after service on their counsel of Plaintiffs' draft judgment, Defendants are to file and serve either an assent to that form of judgment (subject, of course, to any appellate rights) or, alternatively, to file and serve a competing form of proposed judgment. The court will settle the form of judgment based on those submissions without further hearing unless otherwise ordered.