RAYMOND J. GOSSELIN and LINDA E. GOSSELIN v. RUDOLPH PIZZANO, ROBERT M. McLANE, JR., GRATIA L. McLANE, GARWIN K. FLEMING, JR., and PAGE H. FLEMING.

Plaintiffs Raymond J. Gosselin and Linda E. Gosselin (Gosselins) and Defendants Rudolph Pizzano (Pizzano), Robert M. McLane, Jr. and Gratia L. McLane (McLanes), and Garwin K. Fleming, Jr. and Page H. Fleming (Flemings) own abutting parcels in Hamilton. Their parcels are subject to certain restrictions—referred to as the "passive use" and "no build" covenants—that limit the use of an area in the rear of each parcel known as the "No Build Area." The Gosselins' parcel, which lies between the other two parcels, has the largest part of the No Build Area and is most burdened by the covenants. They seek a determination that these covenants are no longer enforceable. After summary judgment motions and a trial, I find that the passive use covenant is a restriction that is no longer of actual and substantial benefit and is therefore unenforceable, but that the no build covenant remains an enforceable restriction.

Procedural History

The Gosselins filed their Verified Complaint on July 13, 2015. Pizzano filed his Answer on July 31, 2015. On February 29, 2016, the Gosselins filed Plaintiffs' Motion for Summary Judgment. On March 18, 2016, the court allowed Plaintiffs' Motion for Issuance of Ex Parte Memorandum of Lis Pendens and endorsed the Memorandum of Lis Pendens as to Defendants Robert M. McLane, Jr. and Gratia Lee McLane.

Defendant Rudolph Pizzano's Opposition to Plaintiff Gosselins' Summary Judgment Motion and Cross-Motion for Summary Judgment was filed on April 1, 2016. A hearing on the motions for summary judgment was held on April 19, 2016, and the motions were taken under advisement. A Motion to Amend Complaint to add Garwin K. Fleming, Jr. and Page H. Fleming as defendants and First Amended Verified Complaint (Compl.) were filed on July 14, 2016. On August 9, 2016, the court allowed the Motion to Amend Complaint and deemed the First Amended Complaint filed. On December 28, 2016, the court issued its Memorandum and Order on Cross-Motions for Summary Judgment denying Gosselin's motion for summary judgment and allowing in part Pizzano's cross-motion for summary judgment (Memorandum and Order).

Request for Default pursuant to Mass. R. Civ. P. 55(a) on Defendant Garwin K. Flemming and Page H. Flemming was filed and the defaults of Garwin K. Flemming and Page H. Flemming were entered on December 30, 2016. On January 20, 2017, the defaults of Garwin K. Flemming and Page H. Flemming were set aside and claims against defendants Gratia L. McLane and Robert M. McLane, Jr. were dismissed without prejudice. The Answer of Defendants Garwin K. Flemming and Page H. Flemming was filed on January 26, 2017. A Joint Pre-Trial Memorandum was filed on May 15, 2017.

The pre-trial conference was held on May 18, 2017, at which the Gosselins reported settlement with the Flemmings and the court agreed to dismiss the claims against the Flemmings at trial if a stipulation of dismissal is not received by that time. Defendant Rudolph Pizzano's Amendment to Joint Pre-Trial Memorandum was filed on July 14, 2017. A view was taken on September 6, 2017. A trial was held on September 7, 2017. Exhibits 1-29 were admitted. I heard testimony from Rudolph Pizzano, Lori Pizzano, Paul Donohoe, Gregory C. Story, and Raymond Gosselin. The transcript of the September 7, 2017, trial was filed on October 13, 2017. The Plaintiff's Post Trial Brief was filed on November 14, 2017. Defendant Pizzano Proposed Findings of Facts, Rulings of Law, and Final Judgment was filed on November 15, 2017. The court heard closing arguments on December 14, 2017. On January 16, 2018, Addendum I to the Plaintiffs' Post Trial Brief was filed and the court took the case under advisement. This Decision follows.

Facts

Based on the view, the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

1. The Gosselins own the property located at 67 Essex Street, Hamilton, Massachusetts (Gosselin Property or Lot 2) by a deed dated June 1, 2000, recorded with the Essex South District Registry of Deeds (registry) in Book 16375, Page 484. Exh. 11.

2. Pizzano owns the property located at 77 Essex Street, Hamilton, Massachusetts (Pizzano Property or Lot 3) by a deed dated April 13, 1995, recorded with the registry in Book 12986, Page 237. Exh. 8.

3. The McLanes were the owners of property located at 33 Essex Street, Hamilton, Massachusetts by a deed dated March 19, 1999, recorded with the registry at Book 15547, Page 437. Exh 1.

4. On June 22, 2016, the McLanes conveyed the 33 Essex Street property to the Flemings by a deed recorded on July 7, 2016 with the registry at Book 35067, Page 56 (Fleming Property or Lot 1). Exh 1.

5. The Gosselin Property, Pizzano Property, and Fleming Property are shown on a certain plan entitled "Plan of Land in Hamilton, Mass." dated April 19, 1994 and recorded with the registry on July 19, 1994 at Plan Book 291, Page 78 (1994 Plan), attached here as Exhibit A. On the 1994 Plan, the Fleming Property is shown as Lot 1, the Gosselin Property is shown as Lot 2, and the Pizzano Property is shown as Lot 3. The Gosselin Property is contiguous to both Lots 1 and 3. All of the lots abut Essex Street. The 1994 Plan does not make reference to any "No Build Area". Exhs. 1-2.

6. Lots 1, 2, and 3 are largely unlevel wooded lots except for an open space or field on a ridge in the rear. Exh. 1; View.

7. The title to all three properties is derived from a common grantor, James R. Abram (Abram), as Trustee of the Essex Street Realty Trust u/d/t dated April 15, 1994, and recorded with the registry at Book 12668, Page 568. On July 19, 1994, Charles A. Steward conveyed the three lots to Abram, as Trustee, by a deed recorded with the registry in Book 12668, Page 571. Exhs. 1, 3.

8. On July 19, 1994, Abram, as Trustee, conveyed Lot 1 to Scott DeF. Shiland by a deed recorded with the registry in Book 12668, Page 579 (Shiland Deed). The description of the conveyed property, which references the 1994 Plan, includes the language:

Grantor and Grantee further covenant and agree that no dwelling, structure or improvement of any kind or nature shall ever be located, constructed, placed or allowed to stand within the open space, No Build Area presently shown as a field. . . . The foregoing rights shall be deemed to run with Lots 1, 2, and 3 and be binding upon and enure to the benefit of the Grantor and Grantee, and their respective heirs, successors and assigns in and to the said Lots 1, 2 and 3.

A "No Build Area" is not shown on the 1994 Plan. Exhs. 1, 2, 4.

9. On September 1, 1994, Abram, as Trustee, conveyed Lot 2 to Jason T. Kuplen (Kuplen) by a deed recorded with the registry at Book 12731, Page 25 (Kuplen Deed). The description of the property, which references the 1994 Plan, includes the following language:

Right and easement to use those portions of Lot 2 and 3 located within the "No Build Area" as shown on a certain sketch plan attached hereto and recorded herewith as Exhibit "A" for passive recreational uses, including, but not limited to, gardening and landscaping purposes, and for such other uses as may be mutually agreed by the present and/or future owners of Lots 1, 2, and 3 all as shown on the above referenced plan. The Grantee by the acceptance and recording of this Deed, acknowledges and agrees that the portion of Lot 2 located within said "No Build Area" shall likewise be subject to the aforesaid passive recreational uses by the present and/or future owners of Lots 1 and 3. [(Hereafter referred to as, the "passive use restriction").]

Grantor and Grantee further covenant and agree that no dwelling, structure or improvement of any kind or nature shall ever be located, constructed, placed or allowed to stand within the open space, No Build Area presently shown as a field. The lot owners (Lots 1, 2 and 3) shall have the right upon agreement of all owners to construct children's play apparatus within the open space. Grantor further agrees to remove the existing wood garage located partly within the "No Build Area", and the smaller garage straddling the lot line between Lots 1 and 2, on or before May 30, 1995, at Grantor's sole expense. [(Hereafter referred to as, the "building restriction").]

The foregoing rights and easements shall be deemed to run with Lots 1, 2, and 3 and be binding upon and enure to the benefit of the Grantor and Grantee, and their respective heirs, successors and assigns in and to the said Lots 1, 2 and 3.

No sketch plan is attached to the Kuplen Deed. Exhs. 1, 6.

10. On December 1, 1994, Scott DeF. Shiland conveyed Lot 1 to himself and Heather M. Shiland (Shilands), as tenants by the entirety, by a deed dated November 22, 1994 recorded with the registry at Book 12843, Page 124. The deed states that Lot 1 is subject to matters set forth in the Shiland Deed. Exhs. 1, 7.

11. On April 14, 1995, Abram, as Trustee, conveyed Lot 3 to Pizzano by a deed recorded with the registry at Book 12986, Page 237 (the Pizzano Deed). The Pizzano Deed's description of Lot 3 contained the same language as the Kuplen Deed restricting the use of the No Build Area. It refers to a "sketch plan" recorded with the Kuplen Deed, but, as found above, no such sketch plan was recorded. Exhs. 1, 8.

12. On May 1, 1998, a confirmatory deed from Abram, as Trustee, to Shiland was recorded with the registry at Book 14781, Page 445 (Shiland Confirmatory Deed). The Shiland Confirmatory Deed was intended to include certain rights and easements which were inadvertently omitted in the original deed. The description of Lot 1 in this deed contains the same language as the Kuplen Deed restricting the use of the No Build Area. No sketch plan is recorded. Exhs. 1, 9.

13. On March 19, 1999, the Shilands conveyed Lot 1 to the McLanes by a deed recorded with the registry at Book 15547, Page 437. The deed states that Lot 1 is subject to matters set forth in the Shiland Deed. It does not state that Lot 1 is subject to the Shiland Confirmatory Deed, and no sketch plan is attached. Exhs. 1, 10.

14. On June 1, 2000, Kuplen conveyed Lot 2 to the Gosselins by a deed recorded with the registry at Book 16375, Page 484 (Gosselin Deed). The description of Lot 2, the reference to the building and passive use restrictions in the Gosselin Deed are the same as those in the Kuplen Deed. No sketch plan is attached. Exhs. 1, 11.

15. An "Affidavit under M.G.L. Chapter 183, Section 5B," dated April 22, 2002, and executed by E. James Kroesser, attorney for Abram, was recorded in the registry in Book 18690, Page 197, on May 10, 2002 (Kroesser Affidavit). The Kroesser Affidavit attaches the sketch plan and states that it is the same sketch plan referred to in the Kuplen Deed, the Shiland Confirmatory Deed, the Gosselin Deed, and the Pizzano Deed. It states that the sketch plan was not recorded with the Kuplen Deed "[d]ue to mistake and/or inadvertence." Exh. 12.

16. Although the sketch plan is not dimensioned, the No Build Area is laid out on a plan entitled "Exhibit Plan in Hamilton, MA Scale: 1" = 20' September 5, 2017" (2017 Plan). The 2017 Plan shows the No Build Area as located in the rear portions of the Flemming Property, Gosselin Property, and Pizzano Property. A copy of the 2017 Plan is attached as Exhibit B. Tr. 1:51; Exh. 24.

17. The Pizzano Property is level in the rear portion of the property that is situated within the No Build Area, but otherwise slopes significantly downward from the rear of the property to the front boundary on Essex Street. View; Exhs. 2, 24.

18. Due to the significant slope of the Pizzano Property, structures erected within the No Build Area would cast shadows on, and decrease light available to the Pizzano house. View.

19. The house on the Pizzano Property was constructed with many south facing windows to take advantage of the light available from the south and south west. Tr. 1:29; View.

20. Pizzano's decision to purchase the Pizzano Property was impacted by the existence of the No Build Area in the rear of the property because the No Build Area offered a level open area for children to play that was not present on the remainder of the sloping lot. Tr. 1:15-16, 80.

Use of the No Build Area

21. Beginning in approximately 1998, Pizzano has used the portion of the No Build Area situated solely on the Pizzano Property as a children's skating rink and for bowling and bocce. Tr. 1:22-24, 72-73; View.

22. On one occasion Pizzano used the No Build Area to hold a team baseball practice. Tr. 1:24-25.

23. Over the years there were a few occasions where the Gosselin and Pizzano children played with each other in some portion of the No Build Area. Tr. 1: 25-26, 65-66, 120- 121.

24. Owners of all three properties have crossed the No Build Area to retrieve loose dogs. Tr. 1:127-128.

25. For a short period of time Pizzano attempted to grow roses in the No Build Area. Tr. 1:69.

26. When Kuplen owned the Gosselin Property there was a garden in the No Build Area in the rear of Lot 2. On a few occasions, Lori Pizzano and the Pizzano children helped Ms. Kuplen pick produce. Tr. 1:81.

Effect on market value

27. I credit the testimony of Gregory C. Story that the restrictions have an effect on the market value of the Gosselin Property, although I do not accept his specific calculations of loss in value—that calculation was too speculative. I also credit Raymond Gosselin's testimony that at least some potential buyers of the property told him that they would only buy if the restrictions were removed. Tr. 1:93-96, 98, 122-123, 139.

Discussion

As an initial matter, while the Gosselins reported a settlement with the Flemmings and it was agreed that the claims against them would be dismissed, no stipulation of dismissal was filed at trial. The claims against Garwin Kent Flemming, Jr. and Paige Howard Flemming are hereby DISMISSED without prejudice.

The Kuplen, Shiland Confirmatory, Gosselin, and Pizzano Deeds purport to impose a passive use and a no build covenant in the No Build Area on Lots 1, 2, and 3 as shown on the "sketch plan." In the Memorandum and Order I found that the passive use and no build covenants were part of the Gosselin and Pizzano Deeds as corrected by the Kroesser Affidavit, and thus burdened the Gosselin Property. I further found that material facts were in dispute with respect to the location of the No Build Area as shown on the sketch plan and whether each covenant is of "actual and substantial benefit" to Pizzano such that they may be enforceable under G.L. c. 184, § 30, and whether any of the exceptions of G.L. c. 184, §30, applied. The parties have agreed on the location of the No Build Area. I find that the No Build Area is located as shown on the 2017 Plan. Exh. 24. The Gosselins seek a declaration that the passive use and no build covenants are not enforceable under G.L. c. 184, § 30.

General Laws c. 184, § 30 provides that "[n]o restriction shall 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." Id. To determine whether the passive use and no build covenants are of actual and substantial benefit it is first necessary to define their intent and scope.

A restriction, like a deed, "is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed." Walker v. Sanderson, 348 Mass. 409 , 412 (1965), quoting Bessey v. Ollman, 242 Mass. 89 , 91 (1922); Patterson v. Paul, 448 Mass. 658 , 665 (2007); Sheftel v. Lebel, 44 Mass. App. Ct. 175 , 179 (1998). The restriction "must be construed beneficially, according to the apparent purpose of protection or advantage . . . it was intended to secure or promote." Maddalena, 7 Mass. App. Ct. at 469, quoting Jeffries v. Jeffries, 117 Mass. 184 , 189 (1875); Chatham Conservation Foundation, Inc. v. Farber, 56 Mass. App. Ct. 584 , 590 (2002). "While the words of the deed remain the most important evidence of intention, they must be construed in light of the attendant circumstances to interpret an ambiguous meaning." Melone v. Town of Lancaster, 24 LCR 354 , 359 (2016), citing Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006). They must be construed "with a view to avoiding results which are absurd, or inconsistent with what was meant by the parties to or the framers of the instrument." Maddalena v. Brand, 7 Mass. App. Ct. 466 , 469 (1979), quoting Chase v. Walker, 167 Mass. 293 , 297 (1897). As part of their construction, it is important to remember that "restrictions on land are disfavored, and they 'in general are to be construed against the grantor.'" Stop & Shop Supermarket Co. v. Urstadt Biddle Props., Inc., 433 Mass. 285 , 290 (2001), quoting Ward v. Prudential Ins. Co., 299 Mass. 559 , 565 (1938); Brown v. Linnell, 359 Mass. 446 , 447 (1971). Thus, any ambiguity in a restrictive covenant must "be resolved in favor of the freedom of land from servitude," meaning the less restricted use, while still respecting the purposes for which the restriction was established. Well-Built Homes, Inc. v. Shuster, 64 Mass. App. Ct. 619 , 629 (2005); McDonald's Corp. v. Rappaport, 532 F.Supp.2d 264, 274 (D. Mass. 2008).

The language of the Shiland Confirmatory Deed and the Kuplen and Pizzano Deeds demonstrates that Abram, the common grantor, intended there to be a scheme of restrictions applicable to the three lots he created, consisting of two restrictions on the No Build Area. The first is a passive use covenant which allows passive recreational uses in the area. The second is a no build covenant which bars any structures in the No Build Area. Together the passive use and no build covenants established an open No Build Area across all three lots to which the owners of each lot had access, to be used recreationally in a manner agreeable to all lot owners.

Although described as a "[r]ight and easement," the passive use covenant practically functions as a restrictive covenant. The passive use covenant creates a poorly defined set of rights which serves to dictate what the owners of Lots 2 and 3 cannot do with their own property rather than actually benefitting them. It requires the owners of Lots 2 and 3 to leave their own properties unfenced and not to use them in a manner which would impinge on the loosely defined rights of the other lot owners to make use of the No Build Area. The no build covenant also restricts how the owners of Lots 2 and 3 can use their land, barring any construction in the No Build Area. Together, the passive use and no build covenants conferred by the deeds function as "a right to compel the person entitled to possession of the land not to use it in specified ways," or "[a] restriction on the use of land." Labounty v. Vickers, 352 Mass. 337 , 347 (1967); Myers v. Salin, 13 Mass. App. Ct. 127 , 135-136, 136 n. 11 (1982) ("The Legislature, by enacting G.L. c. 184, §§ 23 & 26-30, and predecessors of those sections, has shown a general intention that such 'restrictions,' with certain carefully specified exceptions, be regulated in various ways, without apparent differentiation among the types of interest thereby produced, the names given to them, or the methods used in their creation."); see Patterson, 448 Mass. at 663-664 (2007). In short, both the passive use and no build covenants are restrictions, and will be referred to and treated as such going forward.

The disputed restrictions serve two purposes. First, the no build restriction broadly prevents any structure from being erected within the No Build Area. Second, the portion of the No Build Area found in Lot 2 and Lot 3 is reserved for passive recreational use by the owners of Lots 1, 2, and 3. The question is whether Pizzano, the owner of Lot 3, can enforce these restrictions against the Gosselins, the owners of Lot 2, to keep them from building anything on or excluding Pizzano from the No Build Area on Lot 2. These restrictions may be enforceable against the Gosselins only if each is of "actual and substantial benefit" to Pizzano. G.L. c. 184, § 30; Atwood v. Walter, 47 Mass. App. Ct. 508 , 513 (1999) ("restrictions…are of actual and substantial benefit to the plaintiff by ensuring that the quality and unique character of Jacob's Farm Village is maintained."); Connaughton v. Payne, 56 Mass. App. Ct. 652 , 657 (2002) ("restriction, which was to limit development on the plaintiff's property, continue to hold vitality for the defendants, who seek to maintain and nurture 'the ecosystem that currently thrives'"); Kline v. Shearwater Ass'n, Inc., 63 Mass. App. Ct. 825 , 832 (2005) (actual and substantial benefit found in covenants which "form a scheme calculated to protect the values set forth in the preamble of the declaration.").

Pizzano argues that both covenants, the no build and the passive use restrictions, are of actual and substantial benefit. I credit Pizzano's testimony that he bought Lot 3 in spite of misgivings about the generally sloping nature of the lot because he and his wife felt that the no build and passive use restrictions helped to accommodate their needs for the property, which in particular included space for children to play that was otherwise limited on the lot. Based on the testimony given by Pizzano and his wife and my observations at the View, I conclude that any new structures within the No Build Area would harm Pizzano by obstructing the view from the Pizzano house, creating shadows, and reducing the available light. The no build restriction is of actual and substantial benefit to Pizzano because it preserves the sunlight available to the Pizzano house, sunlight that would be diminished by a new structure in the No Build Area due to the unique sloping contour of the Pizzano Property.

Pizzano has not, however, demonstrated that Lot 3 is actually and substantially benefited by the passive use restriction. Pizzano and his wife Lori Pizzano both testified to their use of their property and the No Build Area. Together the Pizzanos have made regular use of the portion of the No Build Area which lies on their own property, but have shown very few examples of their enjoying the passive use restriction on Lots 1 and 2 in the more than twenty years that it has been in effect. Pizzano's testimony points to only a select few instances where the owners of Lots 1, 2, or 3 made any use of the No Build Area outside the bounds of their own properties. Lots 1, 2, and 3 are large lots, and despite the slope of the Pizzano Property, the testimony at trial suggests that the owners each have enough space available on their own lot to meet their needs. Pizzano has made significant use of the portion of the No Build Area that is situated on his own property. In fact, based on his testimony, the loss of the passive use restriction would not constrain any activities that the Pizzanos engage in. Pizzano testified to using the No Build Area on one occasion to hold a youth baseball practice and Lori Pizzano testified to helping their former neighbors pick produce in the No Build Area of Lot 2. While these activities were of some value to the Pizzanos at the time, there is no evidence that there were other baseball practices, any further gardening, or any other activity by the Pizzanos in the No Build Area of Lot 2. It appears that for Pizzano, the loss of the passive use restriction would have solely financial considerations, based on his belief that it adds value to Lot 3 and will make it easier to sell in the future. Pizzano has not shown that the passive use restriction provides any actual benefit, as opposed to the theoretical value it could add to his property. See Garland v. Rosenshein, 420 Mass. 319 , 321 (1995) ("Section 30 must refer to an 'actual and substantial benefit' to the holder of a purported right of enforcement beyond the 'hold up price' for releasing the restriction. To be 'actual,' the benefit must come from the existence and enforceability of the restriction, rather than from the price of releasing the restriction."). I cannot conclude that the passive use restriction confers an actual, let alone a substantial, benefit to Pizzano. The passive use restriction is unenforceable under G.L. c. 183, § 30.

Even where, as with the no build restriction, the court finds that there is an actual and substantial benefit, it must still determine if any of the five statutory exemptions found in G.L.

c. 184, § 30 are applicable. See Connaughton v. Payne, 56 Mass. App. Ct. 652 , 655-656 (2002).

The five exceptions are:

(1) changes in the character of the properties affected or their neighborhood, in available construction materials or techniques, in access, services or facilities, in applicable public controls of land use or construction, or in any other conditions or circumstances, reduce materially the need for the restriction or the likelihood of the restriction accomplishing its original purposes or render it obsolete or inequitable to enforce except by award of money damages, or

(2) conduct of persons from time to time entitled to enforce the restriction has rendered it inequitable to enforce except by award of money damages, or

(3) in case of a common scheme the land of the person claiming rights of enforcement is for any reason no longer subject to the restriction or the parcel against which rights of enforcement are claimed is not in a group of parcels still subject to the restriction and appropriate for accomplishment of its purposes, or

(4) continuation of the restriction on the parcel against which enforcement is claimed or on parcels remaining in a common scheme with it or subject to like restrictions would impede reasonable use of land for purposes for which it is most suitable, and would tend to impair the growth of the neighborhood or municipality in a manner inconsistent with the public interest or to contribute to deterioration of properties or to result in decadent or substandard areas or blighted open areas, or

(5) enforcement, except by award of money damages, is for any other reason inequitable or not in the public interest.

G.L. c. 184, § 30. In the Memorandum and Order, I found that the third exception is not applicable as the lots are not part of a common scheme. See G.L. c. 184, § 27(b)(1) (common scheme involves at least four or more contiguous parcels). None of the remaining statutory exceptions support denying the enforceability of the no build restriction. There has been no testimony to suggest that there have been any material changes in conditions or circumstances that would implicate the first exception. There has been no testimony to suggest that Pizzano's conduct has at any time rendered enforcement of the no build restriction inequitable. There was testimony regarding the Gosselins' desire to build a basketball court but no action of Pizzano in connection with the basketball court would render enforcement inequitable. The fourth exception is inapplicable because there is no evidence that the no build restriction would impede the reasonable use of Lots 2 and 3. To the contrary, Lots 2 and 3, found in a residential zoning district, already have large single family homes and are being used harmoniously for residential purposes without conflict with the restriction. Finally, there is no other reason that would render enforcement inequitable or not in the public interest. There was significant testimony, which I credit, that the no build restriction reduces the value of Lot 2. Tr. 1: 93-96, 98, 122-123, 139. But the Gosselins in their deed had notice of the no build restriction, and given that such building restrictions are not uncommon, see Kline, 63 Mass. App. Ct. 825 , 826 (2005); 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass. 346 , 349 (2017), it cannot now be the case, years after the Gosselins purchased Lot 2, that enforcement of the restriction is inequitable because the sale price of their property would be higher without it. As the no build restriction is of actual and substantial benefit to Pizzano and none of the statutory exemptions are applicable, the no build restriction is enforceable under G.L. c. 184, § 30.

Conclusion

For the reasons set forth above, pursuant to G.L. c. 184, § 30, the no build restriction is enforceable and the passive use restriction is not enforceable. Judgment shall enter declaring that (1) the no build restriction as it appears in the Gosselin and Pizzano Deeds is valid and enforceable and (2) the passive use restriction as it appears in the Gosselin and Pizzano Deeds is not enforceable, and dismissing the claims against the McLanes and the Flemmings without prejudice.

Judgment accordingly.

exhibit 1

exhibit 2