TOWN OF SUDBURY v. DOROTHY M. BARTLETT, LAURA B. McCARTHY, and MARTHA J. BARTLETT, as they are trustees of JOC TRUST, and SUDBURY STATION, LLC.

This case is the latest in a series of actions concerning the defendants' attempt to construct an affordable housing development in the town of Sudbury (the "Town"). The present action concerns a 2011 land swap by which the defendant Trustees of JOC Trust ("JOC Trust") conveyed a parcel of land to the Town, "Parcel 1A", to be used for cemetery purposes, in exchange for the Town's reciprocal conveyance to JOC Trust of a parcel of land, "Parcel 3B", to be included in an access roadway to the land now proposed for the affordable housing development. After consummation of the transaction, the Sudbury Planning Board (the "Planning Board") approved a subdivision of JOC Trust's land with the condition that all lots in the subdivision, other than the parcel deeded to the Town, are together to be considered a single residential lot. Defendant Sudbury Station, LLC, the developer, subsequently applied for a comprehensive permit pursuant to G. L. c. 40B, to construct a 250-unit affordable housing development on one of the lots in the subdivision owned by JOC Trust; the Sudbury Zoning Board of Appeals ("Board of Appeals") approved the permit, but reduced the number of units substantially, leading to a currently pending action before the Housing Appeals Committee by the developer, and a related action in this court, also still pending. The Town subsequently brought this action, claiming that the land swap transaction created a restrictive covenant or equitable servitude burdening Parcel 3B and JOC Trust's other property for the benefit of the Town. The Town claims that this restriction limits the use of the JOC Trust property to one single-family home, not the multi-unit development that the defendants intend to construct. The parties submitted cross-motions for summary judgment.

Based on the undisputed facts in the record, the court finds and rules that the Town is not entitled to the benefit of a restrictive covenant or an equitable servitude burdening Parcel 3B or JOC Trust's other land that would restrict it to use of only one single-family home, and that the Town did not act beyond the authority granted by the Town Meeting vote in conveying Parcel 3B to JOC Trust without such a restrictive covenant.

UNDISPUTED FACTS

The undisputed facts established in the record and pertinent to the parties' Cross-Motions for Summary Judgment, are as follows:

1. JOC Trust owns a number of contiguous parcels of land in Sudbury. In 2001, in connection with developing these parcels, JOC Trust applied to the Board of Appeals for a variance from the frontage requirements of the Sudbury Zoning Bylaw. In connection with this application, JOC Trust indicated that it wished to only build one house. In a decision filed with the Town Clerk on February 11, 2002, the Board of Appeals denied this application. JOC Trust did not pursue an appeal.

2. In 2002, JOC Trust applied for definitive subdivision approval as an alternative method of creating sufficient frontage to develop its property. The minutes of the hearing before the Planning Board indicate that counsel for the applicant JOC Trust stated that it intended to build only a single house on the lot. The minutes also indicate that counsel for the applicant stated that this would be a condition for approval, not a restriction.

3. In a decision dated July 17, 2002, the Planning Board approved JOC Trust's application. The decision stated, in part, "The subdivision shall be limited to one (1) residential lot. Any further division of said property into more than one building lot shall require Planning Board approval pursuant to MGL Chapter 41 and the Town of Sudbury Planning Board Rules and Regulations Governing the Subdivision of Land."

4. In connection with this subdivision application, JOC Trust delivered to the Town a proposed deed for a parcel of land that it intended to donate to the Town. Neighboring landowners subsequently appealed the decision approving the subdivision plan, and as a consequence the plan was never recorded. JOC Trust also requested that the Town return the deed to the parcel it had intended to donate. This deed was never recorded, and the subdivision approval was never finalized. [Note 1]

5. Nearly a decade later, the parties attempted to again reach an agreement for provision of access to JOC Trust's properties. In May, 2011, the members of the Town Meeting voted on Warrant Article 27, which was proposed for the purpose of conducting a "land swap" by which the Town would convey a parcel to JOC Trust and, in exchange, JOC Trust would convey a parcel to the Town. The parcel to be conveyed to the Town was Parcel 1A as depicted on a "Plan of Land in Sudbury, Massachusetts," recorded in the Middlesex South District Registry of Deeds ("Registry") as Plan Number 907 of 2012. The parcel to be conveyed to JOC Trust was Parcel 3B as shown on the same plan.

6. Warrant Article 27 for the May, 2011 Sudbury Annual Town Meeting was entitled "Exchange of Land Off Peter's Way With Abutter," and stated its purpose as follows:

To see if the Town will vote to authorize and direct the Selectmen on behalf of the Town to execute a deed transferring a certain parcel of land owned by the Town, specifically Parcel 3B consisting of approximately 45,284 s.f. located off Peter's Way, a private way, as shown on "Plan of Land in Sudbury, Massachusetts," last revised January 24, 2011, prepared by Sullivan Connors and Associates to Laura B. Abrams f/k/a McCarthy, Martha J. Keighley f/k/a Bartlett, and Dorothy Bartlett, Trustees of JOC Trust, in exchange for a deed to the Town of Sudbury of Parcel 1A on the aforementioned plan consisting of approximately two acres, said land to be used for cemetery purposes; said exchange is to be subject to subdivision approval of said plan pursuant to M.G.L. c. 41 and the Town of Sudbury Planning Board Rules and Regulations governing the subdivision of land. [Note 2]

7. The Selectmen's Report for the May, 2011 Sudbury Annual Town Meeting described Warrant Article 27 as follows: "This Article, if passed, allows the Town to obtain two acres of land needed for expansion of the existing Town cemetery together with a permanent access easement across Peter's Way, and a landowner to obtain access to a landlocked parcel for the intended development of one house lot. The land transactions will not go forward without approval of the proposed subdivision which will be determined by the Planning Board under its Rules and Regulations for the subdivision of land and any law or bylaw relative thereto. The Board of Selectmen unanimously supports this article."

8. The Annual Town Meeting was held on May 4, 2011. At the Town Meeting, the Board of Selectmen Chairman stated: "The JOC Trust parcel, while oversized approximately 9 acres, will be limited [to] one residential lot due to the length of the road and the amount of frontage being created. Any future development of the parcel will be subject to Planning Board approval and expansion of the right of way." [Note 3]

9. At the Town Meeting, Article 27 was unanimously passed, and as voted consisted of the following language:

To authorize and direct the Selectmen on behalf of the Town to execute a deed transferring a certain parcel of land owned by the Town, specifically Parcel 3B consisting of approximately 45,284 s.f. located off Peter's Way, a private way, as shown on "Plan of Land in Sudbury, Massachusetts, last revised January 24, 2011, prepared by Sullivan Connors and Associates to Laura B. Abrams f/k/a McCarthy, Martha J. Keighley f/k/a Bartlett, and Dorothy Bartlett, Trustees of JOC Trust, in exchange for a deed to the Town of Sudbury of Parcel 1A on the aforementioned plan consisting of approximately two acres, said land to be used for cemetery purposes; said exchange is to be subject to subdivision approval of said plan pursuant to M.G.L. c. 41 and the Town. [Note 4]

10. On August 22, 2012, the Planning Board held a public hearing on JOC Trust's application for approval of the proposed subdivision, and on September 19, 2012, issued a decision approving the subdivision made possible by the land swap authorized by Article 27 of the May, 2011 Town Meeting. This approval contained the following condition: "The subdivision shall be limited to one (1) residential lot. Any further division of said property into more than one building lot shall require Planning Board approval pursuant to MGL Chapter 41 and the Town of Sudbury Planning Board Rules and Regulations Governing the Subdivision of Land."

11. On November 7, 2012, the Sudbury Board of Selectmen executed a deed to JOC Trust of Parcel 3B as shown on the subdivision plan approved by the Planning Board pursuant to the September 19, 2012 decision (the "Subdivision Plan"). The deed was recorded on December 10, 2012 at the Registry in Book 60688, Page 158. The deed was recorded together with an attested copy of the vote approving Article 27 at the May, 2011 Town Meeting.

12. On November 14, 2012, the Trustees of the JOC Trust executed a deed to the Town of Parcel 1A as shown on the Subdivision Plan. The deed was recorded in the Registry in Book 60688, Page 163.

13. On January 29, 2016, Sudbury Station, LLC applied to the Board of Appeals for a comprehensive permit pursuant to G. L. c. 40B, for a development to include 250 dwelling units on the land shown on the Subdivision Plan.

14. On September 21, 2016, the Board of Appeals rendered a decision on Sudbury Station's comprehensive permit application, approving the application, but authorizing far fewer units than had been requested.

STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Boazova v. Safety Ins. Co., 462 Mass. 346 , 347 (2012); Mass. R. Civ. P. 56 (c). "The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial." Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989). The substantive law at issue in the case determines whether a fact is material. See Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006). Material facts bear on the outcome of the case. See Jupin v. Kask, 447 Mass. 141 , 145-146 (2006). Bare assertions and conclusions regarding a party's understandings, beliefs and assumptions are not sufficient to withstand a well-pleaded motion for summary judgment. See Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 , 728 (1989). Once the moving party establishes the absence of a triable issue, the nonmoving party must respond and offer evidence of specific facts establishing the existence of a genuine issue of material fact in order to defeat the motion. Pederson v. Time, Inc., supra, 404 Mass. at 17.

"[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party's claim." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "The motion must be supported by one or more of the materials listed in rule 56 (c) and, although that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id. at 714.

DISCUSSION

The Town filed a two-count complaint, seeking to establish and enforce a restrictive covenant or equitable servitude over Parcel 3B and the land to be accessed by Parcel 3B (Count One), or in the alternative seeking to declare the conveyance of Parcel 3B void by reason of being in excess of the authority granted to the Town by Warrant Article 27 as approved at the Town Meeting (Count Two).

The Town presents two theories on which it claims the existence of a restriction burdening Parcel 3B and the land it would access for the benefit of the Town. First, it claims that the words of the deed, which reference both the Subdivision Plan and a Planning Board vote, create an express restriction. The Town argues that, in the absence of an express restriction, the court should impose an equitable servitude, and that consideration of a claim for an equitable servitude cannot be resolved on summary judgment, and instead requires a trial. The Town also contends in the alternative that should the court find neither an equitable servitude nor a restrictive covenant, the conveyance of Parcel 3B to JOC Trust should be declared void, as the Town was not authorized to convey it without such a restriction. [Note 5] The defendants have moved for summary judgment on all of the Town's claims; the Town has cross-moved for summary judgment on its claim for a restrictive covenant, and maintains that, should the court fail to find a restrictive covenant in the deed, summary judgment is nonetheless not appropriate on its alternative claims to an equitable servitude, or on whether the transaction was void for lack of authority.

Restrictive Covenant in the Deed.

The first question before the court is whether the deed by which the Town conveyed Parcel 3B served to impose a restrictive covenant on Parcel 3B and on JOC Trust's land for which Parcel 3B was to be used for an access road. In essence, the Town argues that the deed, when read together with the Subdivision Plan and Warrant Article 27, creates an express restriction. The deed references the Subdivision Plan for the purposes of describing the land conveyed, which in turn recites the approval condition that "[t]his Subdivision shall be limited to (1) one residential building lot." The Town argues that these, when read in light of the other documents surrounding the conveyance, created a deed restriction on Parcel 3B restricting its use to access for one single-family home.

"The basic principle governing the interpretation of deeds is that their meaning, derived from the presumed intent of the grantor, is to be ascertained from the words used in the written instrument, construed when necessary in the light of the attendant circumstances." White v. Hartigan, 464 Mass. 400 , 410-411 (2013). The longstanding rule in Massachusetts is that it only becomes necessary to look beyond the face of the deed when its language is ambiguous. See Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006); Westchester Assocs. v. Boston Edison Co., 47 Mass. App. Ct. 133 , 135 (1999); Oldfield v. Smith, 304 Mass. 590 , 600 (1939); Panikowski v. Giroux, 272 Mass. 580 , 582 (1930); Stone v. Clark, 1 Met. 378 , 381 (1840) ("When the language of a conveyance is unambiguous, no parol evidence to vary or control its import is admissible. But where the language is doubtful, especially in the description of the land conveyed, there evidence of the practical construction by the parties is admissible to explain and remove the doubt").. See also Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 131 (1972) ("In interpreting a deed, we seek, in so far as established rules of construction permit, 'to give effect to the intent of the parties as manifested by the words used'"). "Deed language can be ambiguous if 'its meaning . . . is uncertain and susceptible of multiple interpretations.'" Faneuil Investors Grp., Ltd. P'ship v. Dennis, 75 Mass. App. Ct. 260 , 267-268 (2009), aff'd sub nom. 458 Mass. 1 (2010), quoting Hamouda v. Harris, supra, 66 Mass. App. Ct. at 26. "It is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him." Estes v. DeMello, 61 Mass. App. Ct. 638 , 642 (2004). "It is well established that restrictions on land are disfavored." Patterson v. Paul, 448 Mass. 658 , 662 (2007). "Where a person's right to use his or her own property is involved, any ambiguity in an asserted restriction . . . should be construed in favor of the freedom of the property from that restriction." Boston Redevelopment Auth. v. Pham, 88 Mass. App. Ct. 713 , 718 (2015), quoting Johnson v. Keith, 368 Mass. 316 , 320 (1975).

The defendants argue first that the Subdivision Plan could not alone serve to create a restrictive covenant burdening the property. They are correct, insofar as the plan is considered solely within the context of the subdivision approval. "Subdivision approvals are not permanently etched in stone, but can be modified in accordance with the provisions of G. L. c. 41, § 81W." Samuelson v. Planning Bd. of Orleans, 86 Mass. App. Ct. 901 , 902 (2014). There is a distinction "between land use restrictions 'created by deed, other instrument, or a will,' and land use restrictions imposed as a condition to the discretionary grant of regulatory approval under the police power." Id., quoting Killorin v. Zoning Bd. of Appeals of Andover, 80 Mass. App. Ct. 655 , 658 (2011). The conditions attached to a subdivision approval fall into the latter category, not the former, and accordingly do not become restrictive covenants permanently restricting the use of the property by virtue of the approved plan alone. See id. at 658; Cf. Patel v. Planning Bd. of N. Andover, 27 Mass. App. Ct. 477 , 480 (1989) (holding approval of subdivision plan depicting easement does not alone create easement burdening land).

However, as the Town points out, this does not entirely dispose of the issue. While the subdivision approval is not itself sufficient to create a restriction, the subsequent deed that references the Subdivision Plan is an instrument capable, under some circumstances, of burdening the property with a restrictive covenant. The Town deeded Parcel 3B to JOC Trust, and that deed referred to the Subdivision Plan. "A [subdivision] plan referred to in a deed becomes a part of the contract so far as may be necessary to aid in the identification of the lots and to determine the rights intended to be conveyed." Goldstein v. Beal, 317 Mass. 750 , 755 (1945). See Oliver v. Kalick, 223 Mass. 252 , 254 (1916). See also Tattan v. Kurlan, 32 Mass. App. Ct. 239 , 245 (1992) (noting while rule allowing references to plans is not meant to determine title, it "has been held to implicate . . . the non-possessory, nonexclusive interests of abutters, such as easements and similar servitudes"). Thus, where a deed does not itself specifically describe a restriction, but incorporates by reference a plan which very explicitly does, this may be sufficient to successfully create a restrictive covenant. See Oliver v. Kalick, supra, 223 Mass. at 254-255 (finding restriction valid where present in referenced plan but not in text of deed itself). Indeed, this is often the mechanism used to expressly restrict all lots in a common scheme development, where the terms of the restrictive covenant are clearly laid out upon a plan, and that plan is then explicitly referenced by each deed. See Backman & Thomas, A Practical Guide to Litigating Disputes Between Adjoining Landowners § 3.02 [3] [a] (2016). The Town thus argues that the parties intended to create a deed restriction by virtue of the deed itself, which incorporates the Subdivision Plan and the language contained thereon.

The Town argues that the intent to create such a restriction is clearly apparent in the language of both the Subdivision Plan and the Town vote recorded with the deed; the Town argues that this language functions as an express deed restriction burdening the property. Though the Town has provided substantial parol evidence concerning the intent of the parties and suggests that this should be used as an interpretive aid to the intent of the deed, such evidence only becomes relevant following a determination that words of the deed (and documents incorporated therein) are ambiguous. See Stone v. Clark, supra, 1 Met. at 381; Hamouda v. Harris, supra, 66 Mass. App. Ct. at 25. The Town primarily points to the paragraph on the Subdivision Plan that states: "This subdivision shall be limited to one (1) residential building lot. Any further division of said property into more than one building lot shall require planning board approval pursuant to MGL Chapter 41 and the Town of Sudbury Planning Board Rules and Regulations governing the subdivision of land." As the Town admits, this is a recitation of one of the conditions of approval when the subdivision was approved.

The Town thus argues, in essence, that the reference to a subdivision approval condition in a deed must necessarily be intended to create a permanent deed restriction preventing any use inconsistent with that condition. This inference is wholly unjustifiable, and is so contrary to the apparent intent of the deed as to raise no legitimate issue of ambiguity. A subdivision approval condition is inherently different from a restrictive covenant. Though these conditions functionally act as limitations on the use of land, they are fundamentally different from permanent deed restrictions, as "subdivision approvals are not permanently etched in stone, but can be modified in accordance with the provisions of G. L. c. 41, § 81W." Samuelson v. Planning Bd. of Orleans, supra, 86 Mass. App. Ct. at 902. See also Killorin v. Zoning Bd. of Appeals of Andover, supra, 80 Mass. App. Ct. at 658 (contrasting subdivision approval conditions with deed restrictions). Such conditions may be "inscribed upon the plan" in order to "be effective as restraints upon the use of land by reason of the subdivision control law." Green v. Board of Appeal of Norwood, 358 Mass. 253 , 262 (1970). The imposition of a limitation of this nature in the context of the subdivision approval process does not itself establish a restrictive covenant. A later deed which continues to describe this limitation as just such a condition does not exhibit an intent to transform it into a restrictive covenant. Even within a deed, a reference to a subdivision condition that is explicitly described as subject to Chapter 41, and is otherwise unqualified by the deed's language, communicates an intent for that limitation to retain its character as an approval condition governed by the Subdivision Control Law. There are no words in either the deed or on the Subdivision Plan which militate against this conclusion. Yet the Town suggests that, despite its straightforward language, and solely by virtue of its appearance in a deed, the parties must have instead intended this condition to effectively evolve into a manner of permanent restriction that is inherently dissimilar in nature and no longer governed primarily by the processes of the Subdivision Control Law. This inference is entirely unwarranted, as it is directly contrary to the intent apparent in the plain language of the condition as it is incorporated into the deed. The language of the condition itself contemplates future changes that might be approved by the Planning Board (or, by extension, overridden by the issuance of a comprehensive permit pursuant to G. L. c. 40B).

Furthermore, even explicit language of restriction on a subdivision plan cannot impose a restriction unless a deed referencing the plan evinces a clear intent to impose the restriction described on the plan. In Patel v. Planning Board of North Andover, the Appeals Court held that neither the approval and recording of a subdivision plan which referred to a roadway over part of a subdivision lot, nor the deeds to successive purchasers of the lot, each of which referred to the recorded plan, created any easement for the roadway in favor of abutters or members of the general public because the deeds did not contain a grant of the roadway easement shown on the subdivision plan. It was not enough to merely describe the lot in the deed by reference to the plan. Patel v. Planning Bd. of N. Andover, supra, 27 Mass. App. Ct. at 480.

The Town also cites to the vote on Article 27, which authorized the land swap, as further indicating an intent to restrict the property. To the extent that the court may consider this document due to the fact that it is referenced in the deed, it fails to provide any further indication that the parties intended to burden Parcel 3B or any other land of JOC Trust with a restrictive covenant. The vote states that "said exchange is subject to subdivision approval of said plan pursuant to M.G.L. c. 41 and the Town of Sudbury Planning Board Rules and Regulations governing the subdivision of land." In using this phrase, the vote conveyed the intention of the Town Meeting that the subdivision approval was a condition precedent to the transaction taking place. It is unclear how this would require conditions attached to that approval to become deed restrictions. The fact alone that the transaction followed this approval and conditions does not signal an intent to alter their nature. Even were the intent of the Town Meeting members to have been clearly expressed otherwise, the failure to implement that intent in the language of the deed would not necessarily invalidate the deed. See Mahajan v. Department of Envtl. Prot., 464 Mass. 604 , 616 (2013).

"Restrictions on land are disfavored," Patterson v. Paul, 448 Mass. 658 , 662 (2007), and "[i]t is a rule in the construction of deeds, that the language, being the language of the grantor, is to be construed most strongly against him." Estes v. DeMello, supra 61 Mass. App. Ct. at 642. "It is the policy of our law in regard to the recording of deeds that persons desiring to buy may safely trust the record as to the ownership of the land, and as to incumbrances upon it which are created by deed." McCusker v. Goode, 185 Mass. 607 , 611 (1904). "[T]he purpose of the recording system [is] to broadcast with some certainty restrictions to which real estate is subject." Asian Am. Civic Ass'n v. Chinese Consol. Benev. Ass'n of New England, Inc., 43 Mass. App. Ct. 145 , 148-49 (1997). Given these principles, the court may safely conclude that, had the parties intended to create a restrictive covenant applicable to Parcel 3B, "in [a] deed[] so carefully drawn it would have been so expressed." Coolidge v. Dexter, 129 Mass. 167 , 169 (1880). The plain language of the deed, the Subdivision Plan to which it refers, and even the Warrant Article vote recorded with it, would lead any reasonable individual inspecting the title to Parcel 3B to simply understand that the property is subject to a subdivision approval condition. While the deed's reference to the Subdivision Plan (and its included conditions) evinces an intent to limit the use of the property, it does so through continued application of the Subdivision Control Law, which allows for the possibility of subsequent modifications, rather than through the creation of a new property interest independently enforceable through the vehicle of the deed itself. Where the bare language of the deed so clearly communicates no apparent intent to do so, the court may conclude as a matter of law that the deed here did not expressly or implicitly create a covenant permanently restricting the use of Parcel 3B or the land it is proposed to access.

Finally, even were the Town successful in proving the existence of a restrictive covenant based on the Subdivision Plan, it still would not be entitled to the particular relief that it seeks limiting the property to use in connection with one single-family home. The condition in question limits the subdivision to a single residential lot that cannot be further subdivided without an additional approval by the Planning Board; the Town contends that this limits the use of that lot to the construction of one single-family home, as the limitation must be interpreted in light of the fact that existing zoning only allows single-family homes by right. [Note 6] This is unconvincing. The Sudbury Zoning Bylaw nonetheless allows multi-family housing in this district by special permit. There is no reason why the scope of the limitation to a single residential lot should be viewed through the narrow lens of by-right uses only: use of the property for multi-family housing, though by special permit, or even pursuant to a comprehensive permit pursuant to G. L. c. 40B, §§ 20-23, would still be entirely consistent with both zoning and the limitation to a single residential lot.

Equitable Servitude.

The Town also argues that, should the court fail to find an express restriction from the terms of the deed, summary judgment in favor of the defendants is not appropriate, as the Town claims that the property should instead be subjected to an equitable servitude, and that a claim for an equitable servitude requires the court to examine all facts after they are developed at trial.

"The requirements of an equitable servitude are: (1) The restriction must be created in a written instrument which satisfies the Statute of Frauds. (2) The original parties must have intended that the restriction be enforceable against subsequent grantees of the land burdened with the restriction by subsequent grantees of adjoining or other parcels of land benefitted by it. (3) The restriction must 'touch and concern' the burdened and benefitted land … [and] (4) [a] subsequent owner of the burdened land must have had notice of the restriction[,] actual ... [or] constructive, by virtue of the restriction being recorded in a prior conveyance in the chain of title." Sullivan v. O'Connor, 81 Mass. App. Ct. 200 , 213 (2012) (internal quotation marks omitted; alterations in original). The distinction between an equitable servitude and a covenant at law is that the former does away with the privity requirement of the latter, and instead only requires notice on the part of the owner of the burdened land. See Well-Built Homes, Inc. v. Shuster, 64 Mass. App. Ct. 619 , 626 n.13 (2005).

The defendants argue that the Town will be unable to produce any writing signed by the grantor sufficient to satisfy the Statute of Frauds, and its claim for an equitable servitude therefore must fail. "In order to satisfy the Statute of Frauds, the writing must incorporate the promise that the plaintiff seeks to enforce." Harrington v. Fall River Hous. Auth., 27 Mass. App. Ct. 301 , 306 (1989). "The form of the memorandum is immaterial, if its contents adequately set forth the agreement." Cousbelis v. Alexander, 315 Mass. 729 , 730 (1944), quoting Hurley v. Brown, 98 Mass. 545 , 546 (1868). Multiple writings by the grantor may together serve to satisfy the requirements of the Statute. See Clark v. Olejnik, 240 Mass. 215 , 217 (1921) ("Under the modern rule different papers may be so connected that taken together a memorandum sufficient to satisfy the statute of frauds is established, but there must be some evidence that the papers were connected together in the minds of the parties so that they adopted all the papers as indicating their purpose"); Brewster Wallcovering Co. v. Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582 , 600 (2007).

The Town has expressed doubt that the imposition of an equitable servitude does, in fact, require the existence of a document signed by the grantor that satisfies the Statute of Frauds. It contends that, where there is a body of evidence concerning the parties' intent, the court can simply consider its contents in the aggregate and infer the existence of a servitude, regardless of the requirements set out in Sullivan and the Statute, should the evidence taken together suggest that intent; it is for this reason that the Town argues that summary judgment in favor of either party is inappropriate on a claim to an equitable servitude, as the Town maintains that the court can only determine the intent of the parties upon all the evidence once presented at trial. The Town provides neither detailed explanation of nor support for this argument, and this court has itself found none in the jurisprudence of the Commonwealth. The test laid out in Sullivan is quite clear in its required elements. The fact that such a servitude is founded in equity rather than in law does not, as the Town seems to suggest, allow one to do away with all typically necessary formalities and cobble together an implied restriction from whatever assorted evidence one manages to muster. "[E]quity does not favor raising by implication a covenant restraining the beneficial use of property." Mutual Paper Co. v. Hoague-Sprague Corp., 297 Mass. 294 , 301 (1937). "It is settled by our decisions, that under ... [the statute of frauds] an equitable as well as a legal interest in land must be evidenced by some sufficient instrument in writing or it is unenforceable." Houghton v. Rizzo, 361 Mass. 635 , 640 (1972), quoting Sprague v. Kimball, 213 Mass. 380 , 383 (1913). In differing from a covenant at law, an equitable servitude simply omits a single requirement, that of privity, which would otherwise be necessary. See Sullivan v. O'Connor, supra, 81 Mass. App. Ct. at 213; Well-Built Homes, Inc. v. Shuster, supra, 64 Mass. App. Ct. at 626 n.13. See also Backman & Thomas, A Practical Guide to Litigating Disputes Between Adjoining Landowners §3.02 [2] (2016) ("These requirements are almost identical to the prerequisites for enforcement of real covenants running with the land, discussed previously. The major difference is that no privity is necessary"). Indeed, the Supreme Judicial Court has previously declined to find an equitable servitude where the Statute of Frauds was not satisfied. See Belmont v. Massachusetts Amusement Corp., 333 Mass. 565 , 572 (1956).

The need for meeting the formal prerequisites of the Statute is underscored by Massachusetts' treatment of the so-called "common scheme" doctrine with regard to its ability to impose servitudes on otherwise unburdened land. Many jurisdictions allow a restriction to be impliedly imposed on an otherwise unburdened lot when a preponderance of the other lots from a common grantor contain that restriction; this is the case even if these other restrictions are embodied in the deeds to the other parcels, and there is no separate writing expressly restricting the remaining lots. Massachusetts, however, has declined to allow such implication absent a writing. "Massachusetts decisions take the more limited view that the common scheme burden arises only when a seller of land binds that vendor's remaining land with restrictions by means of a writing." Popponesset Beach Ass'n v. Marchillo, 39 Mass. App. Ct. 586 , 590 (1996) See Guillette v. Daly Dry Wall, Inc., 367 Mass. 355 , 358 (1975); Gulf Oil Corp. v. Fall River Hous. Auth., 364 Mass. 492 , 501 (1974); Houghton v. Rizzo, supra, 361 Mass. at 640. The principle behind the relatively firm need for an express writing signed by the grantor in this context was expressed in Houghton v. Rizzo, stating:

"In reaching our decision we have been equally mindful of the fact that the proliferation of implied rights in or servitudes upon real estate, which cannot be readily ascertained by an examination of the records of the appropriate registry of deeds or of the Land Court, will serve only further to erode the integrity and reliability of such records and will be a subversion of the fundamental purpose for which such records are required to be made and maintained. A prospective purchaser of a lot on a plan from a developer who has not previously expressly subjected that lot to any restrictions of record should not be subjected to the nearly impossible burden and risk of deciding at his peril whether, by a series of restrictions imposed on lots previously conveyed, the developer has impliedly restricted his remaining land in the same way."

361 Mass. at 643. Indeed, in consonance with this principle, courts have been reluctant to accept arguments for the creation of restrictive covenants by implication in a number of contexts without an explicit, express, and written statement evincing the intent to restrict. See, e.g., Keats v. Hugo, 115 Mass. 204 , 216 (1874) ("The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and the use of lands, is that no right of this character [restrictions providing for light and air] can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed"); Partridge Lane Unit v. Peachey, 91 Mass. App. Ct. 1123 (2017) (Rule 1:28 Decision); McDonald v. Town of Somerset, 81 Mass. App. Ct. 1122 (2012) (Rule 1:28 Decision). .

Thus, in order to avoid summary judgment on its claim to an equitable servitude, the Town must point to documentary evidence signed by the owner of the property and satisfying the Statute of Frauds that clearly articulates the creation of the claimed restriction on the use of Parcel 3B. The Town may indeed point to multiple such documents to be taken together, but they must still clearly and expressly "incorporate the promise that the [Town] seeks to enforce," Harrington v. Fall River Hous. Auth., supra, 27 Mass. App. Ct. at 306, and "adequately set forth the agreement." Cousbelis v. Alexander, supra, 315 Mass. at 730. The defendants argue that there is no writing signed by JOC Trust expressly restricting the property. Though undisputed by the Town, this point does not entirely dispose of the issue: it would also have been possible for the Town to itself restrict Parcel 3B prior to the conveyance. However, there is in the record no such writing or combination of writings signed by the Town that at all express any agreement to permanently restrict the property.

The Town points to Article 27 and the vote taken at the Town Meeting to authorize the Board of Selectmen to conduct a land swap by which Parcel 3B, then owned by the Town, would be exchanged for Parcel 1A, as evidence of a sufficient writing. However, as is noted above, the Supreme Judicial Court has previously determined at least once that, where a town claimed that its vote to convey a parcel of property subject to a particular restriction created an equitable servitude, the vote did not satisfy the Statute of Frauds. See Belmont v. Massachusetts Amusement Corp., supra, 333 Mass. at 572. Yet even were the court to consider this to be a document satisfying the Statute, it nonetheless does not express the intent claimed by the Town. The vote states that "said exchange is subject to subdivision approval of said plan pursuant to M.G.L. c. 41 and the Town of Sudbury Planning Board Rules and Regulations Governing the subdivision of land." This does not communicate any intent to restrict the use of the property. In using this phrase, the vote established only that subdivision approval was a condition precedent to the transaction. The Town draws great import from the fact that the vote utilizes the words "subject to subdivision approval," identifying these as "classic words of restriction." However, these words do not carry the talismanic power to automatically conjure a restriction when the context in which they appear clearly signals a different function. See Restatement (Third) of Property: Servitudes § 2.2 (3d, 2011) (noting abandonment of rigid formalism in interpretation of words of restriction). Their use does not reflect the intention to create a restrictive covenant embodying the contents of the subsequent subdivision approval.

Nor can the Town rely on the Planning Board's decision approving the subdivision as the documentary root of an equitable servitude. First, the decision cannot alone serve as the basis for such a servitude, as the existence of a binding agreement transferring an interest in real estate through the Statute of Frauds cannot be premised on a document issued by a body not duly authorized to bind the Town in that manner. "For a town to be bound by a contract made on its behalf there must be underlying authority in the town to make the contract and the contract must be made by the town's authorized agent." Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153 , 156 (1983). "The officers of cities and towns have only such powers to bind their municipalities by contract as are conferred by the express terms or necessary implications of statutes." Dunne v. Fall River, 328 Mass. 332 , 335 (1952). A transfer of an interest in land requires a town meeting vote. See Zoning Bd. of Appeals of Groton v. Housing Appeals Comm., 451 Mass. 35 , 39 (2008); Bowers v. Board of Appeals of Marshfield, 16 Mass. App. Ct. 29 , 32 (1983); Oliver v. Mattapoisett, 17 Mass. App. Ct. 286 , 288 (1983); G. L. c. 40, § 15A. The Town has provided nothing to indicate that, when considered separately from the Town Meeting vote, the Planning Board is itself empowered to bind the Town to an agreement involving real estate. Moreover, even if the Planning Board's decision is read in conjunction with the actually-voted Article 27 (which, as noted above, does not alone contain any indication of an intent to restrict), no hint of any intent to permanently restrict the property is at all apparent in the Planning Board's decision approving the subdivision. A subdivision approval inherently lacks the intent to impose its conditions as restrictive covenants. See Samuelson v. Planning Bd. of Orleans, supra, 86 Mass. App. Ct. at 902. [Note 7] Here, the limitation in question was communicated as nothing more than such a condition subject, as are all subdivision approvals, to modification under G. L. c. 41, § 81W; furthermore, the approval contained a separate condition requiring the future execution of a restrictive covenant, yet gave no indication that the future covenant was to include any restriction on the number of building lots or the number of structures in the development. In these circumstances, the subdivision decision and plan cannot be read to express an agreement to restrict the property so as to satisfy the Statute and impose an equitable servitude.

The Town has pointed to a number of other documents, such as a report of the Selectmen's vote, the meeting minutes, and the statements made by certain Selectmen at the vote itself. As noted above, the vote itself evinces no intent to create a binding servitude; these tangential documents, even when read in conjunction with that vote, lend no further weight to the claim that the Town intended to create a servitude restricting the use of the property. The minutes of the August 22, 2012 Planning Board meeting indicate that the chairman of the Board of Selectmen stated his belief that the defendants intended to only construct a single home; however, stating an understanding of the defendants' planned construction does not communicate the intent to create a permanent servitude limiting them to that stated plan. If such a statement is to be seen as expressive of any limiting intent, it would at most indicate the intent to limit the property via a subdivision approval condition of the manner ultimately imposed, as both the ultimate vote itself and the subsequent deed reference the need for subdivision approval and attendant conditions while failing to make any mention of a permanent restriction. The same is true of the Selectmen's Report, which, in summarizing the contents of the Warrant Article to be voted upon, described the defendants' "intended development of one house lot." This is entirely in consonance with an intention to impose a subdivision condition concerning the number of buildable lots, and carries no words imputing a stricter restrictive intent. Indeed, the defendants have provided the affidavit of Robert Abrams, in which he indicates that the town planner requested that JOC Trust subject the property to a servitude concerning the intended future construction, and JOC Trust refused; the Town has not disputed that this conversation occurred, but only disputed the channels through which its occurrence was communicated to the Board of Selectmen. Furthermore, to the extent that the Town relies on documents in connection with the defendants' earlier variance and subdivision plan applications, as well as the unconsummated donation from 2002, these have no bearing on the effect of an entirely separate subdivision application and land swap transaction a decade later.

The Town has thus failed to provide any well-supported facts indicating a likelihood of producing at trial any evidence of a writing establishing a servitude that satisfies the Statute of Frauds. As this is an essential element of the Town's claim, the defendants are entitled to summary judgment dismissing this claim. The Town's contention that it is impossible to resolve an equitable servitude claim on summary judgment, either in their own favor or against them, because it involves "questions of both intent and the application of equitable principles" is unavailing. An equitable servitude has definitive requirements as articulated in Sullivan, and summary judgment will lie when the undisputed facts indicate a failure to produce evidence on one of these elements. See Kourouvacilis v. General Motors Corp., supra, 410 Mass. at 714. One of these elements is a document satisfying the Statute of Frauds that evidences the claimed servitude. Questions of intent are often inappropriate for resolution on summary judgment, but such a question of unresolved intent arises only when the terms of the underlying documents are ambiguous, uncertain, or equivocal. See Cardone v. Boston Reg'l Med. Ctr., Inc., 60 Mass. App. Ct. 179 , 186 (2003). Where the Town has instead failed to adduce any evidence indicating the existence of an equitable servitude, and all documents on which the Town relies are unambiguous in exhibiting a lack of intent to create such a servitude, summary judgment is appropriate.

Authority of the Board.

The Town finally argues that the summary judgment motion should be denied, because, in the event no restrictive covenant or equitable servitude is found, the court should evaluate whether by conveying Parcel 3B without such a restriction, the Selectmen exceeded the authority conferred upon them by the Town Meeting. The Town argues that, if the conveyance did not adhere to the terms of the Warrant Article, it should be declared void. Pursuant to G. L. c. 40, § 4, "A city or town may make contracts for the exercise of its corporate powers, on such terms and conditions as are authorized by the town meeting in a town . . . ." G. L. c. 40, § 4. "The law does not expect or require [a] town meeting to involve itself in micromanagement of real estate transactions… However, the board may not include a provision that differs in substantial respect from that which the town meeting approved." Faneuil Investors Grp., Ltd. P'ship v. Dennis, supra, 458 Mass. at 9. Any additional, unauthorized term or provision is invalid. See id. This principle likewise logically prohibits the omission of a term expressly required by the vote. A conveyance that clearly and directly contravenes the authority granted by the town vote will result in a void deed, and the property must be conveyed back to the municipality. See Lawrence v. Stratton, 312 Mass. 517 , 522 (1942).

The court first notes that the grantee of land conveyed by a Town may nonetheless be able to enforce that deed against the Town, even in the event the deed omitted terms required by the vote. G. L. c. 40, § 3A, states, in pertinent part:

"Any recordable instrument purporting to affect an interest in real estate, title to which is held by a city, town, district or regional school district, executed in the name of a town by its selectmen… shall be binding on the city, town, district or regional school district in favor of a purchaser or other person relying in good faith on such instrument notwithstanding inconsistent provisions of general or special law, the city or town charter, by-laws, resolutions or votes."

G. L. c. 40, § 3A (emphasis added). This deed was executed by the Selectmen, and the deed thus is binding against the Town notwithstanding the requirements set forth by the vote, to the extent that the defendants rely on the deed in good faith. [Note 8] However, neither party has addressed the applicability of this particular statute, and lacking the positions of the parties, the court declineson summary judgment to make the necessary determination that the defendants have acted in good faith.

Even so, the plaintiff's claim of lack of authority may nevertheless be disposed of, as it is altogether clear that the Town's failure to include a restrictive covenant in the deed did not derogate from the authority vested in it by the Town Meeting vote. For precisely the same reason that the language of Article 27 does not serve as the basis for an equitable servitude, discussed above, the vote likewise does not communicate any mandate to execute a deed containing a restrictive covenant when conveying the property. Looking to both the Warrant Article and the text of Article 27 itself as voted, neither includes any express requirement for the Town to incorporate within the conveyance a restrictive covenant limiting the subdivision to the use of one single-family dwelling. The Warrant Article, as voted on and as approved, simply required subdivision approval. Contrast Faneuil Investors Grp., Ltd. P'ship v. Dennis, supra, 458 Mass. at 9 (holding town authorized to insert reverter clause where vote stated: "Any deed transferring the property shall provide that in the event the property ceases to be used for [affordable housing], the title . . . shall revert to the [t]own…"); Elbe File & Binder Co. v. Fall River, 329 Mass. 682 , 684 (1953) (holding town not authorized to insert additional covenant into lease requiring tenant to make repairs and improvements when repairs and improvements not mentioned in Warrant).

Though the Town again points to other sources, such as the text of the "Selectmen's Report," which describes the developer's intention to access "one house lot," this again provides no more support than the argument addressed above that this language itself created an equitable servitude. "It has long been settled that the records of proceedings of a town meeting are conclusive as to all business transacted." Zaskey v. Whately, 61 Mass. App. Ct. 609 , 614 (2004). Accordingly, extrinsic evidence is only available to interpret the intention of the vote when the terms of the vote are ambiguous. See id. (describing "narrow line of authority that permits use of parol evidence to elucidate the meaning of an ambiguous or otherwise unclear vote"). [Note 9] It is thus typically unnecessary to look beyond the words of the vote itself to determine the extent of authority vested in the Board of Selectmen. See, e.g., Faneuil Investors Grp., Ltd. P'ship v. Dennis, supra, 458 Mass. at 9; Elbe File & Binder Co. v. Fall River, supra, 329 Mass. at 685; Lawrence v. Stratton, supra, 312 Mass. at 521. Nevertheless, the courts of the Commonwealth have on occasion looked to the warrant article in conjunction with its attendant circumstances and extrinsic evidence in making this determination. See Harris v. Wayland, 392 Mass. 237 , 241 (1984) (whether vote to acquire property "for school purposes" placed it in control of School Committee); Niles v. Patch, 13 Gray 254 , 260-261 (1859) (where vote adopted report but did not explicitly act on its recommendation); Dennis v. Lighthouse Inn, Inc., 6 Mass. App. Ct. 970 , 970 (1979) (where bounds of property conveyed by vote were not clear).

Here, as noted above, there is no ambiguity in the vote. It plainly does not require the imposition of a restrictive covenant in the conveyance. The court therefore need not look to these extraneous sources to ascertain whether its omission derogated from the Town's authority. Even so, if the court were to consider the Selectmen's Report as relevant to the extent of the vote's authority, the result would remain unchanged. In the absence of anything requiring a restriction in the vote itself, the appearance of statements indicating that members of the Board of Selectmen may have understood the developer's ultimate intention to have been the development of "one house lot" or one home in no way goes so far as to indicate that the intention of the vote was to expressly mandate the inclusion of a restrictive covenant as a necessary term of the conveyance. The Town's failure to execute such a covenant limiting the development to a single dwelling was not in contravention of the authority vested in it by the Town Meeting vote.

CONCLUSION

Based on the undisputed facts, the defendants are entitled to summary judgment on Count One declaring that the conveyance of Parcel 3B was not subject to a restrictive covenant or an equitable servitude; on Count Two declaring that the deed was not void by reason of insufficient authority of the Board of Selectmen to execute the deed without a restrictive covenant; and further declaring that the deed was within the authority of the Board of Selectmen to execute without such a restrictive covenant. Accordingly, the plaintiff's motion for summary judgment is DENIED; the defendants' motion for summary judgment is ALLOWED.

Judgment to enter accordingly.