OCB PLYMOUTH REAL ESTATE, LLC v. MEDICI V. REALTY LLC and HENRY A. STOUT, individually and as TRUSTEE of STOUT COMMERCE WAY TRUST

INTRODUCTION

Plaintiff OCB Plymouth Real Estate, LLC ("OCB"), the owner of property located at 146 Industrial Park Road, Plymouth, Massachusetts ("OCB Parcel"), brought this action on February 7, 2019 against defendants Medici V Realty LLC ("Medici"), the owner of property located at 148 Industrial Park Road, Plymouth, Massachusetts ("Medici Parcel"), and Henry A. Stout ("Mr. Stout"), individually and as Trustee of Stout Commerce Way Trust ("the Trust"), in which capacity Mr. Stout is the predecessor in title to OCB and Medici and is the owner of property located at 144 Industrial Park Road, Plymouth, Massachusetts ("the Trust Parcel"). [Note 1] OCB's complaint alleges that the proposed development of a one-story building on the Medici Parcel ("the Proposed Building") violates an agreement entitled "Common Development Scheme Agreement Resnik Road Development" ("the Agreement") and seeks enforcement of the Agreement (Count I) and a declaration as to whether the Proposed Building violates the Agreement (Count II). Both defendants answered and Medici filed a counterclaim seeking a declaration as to whether the Proposed Building violates the Agreement.

This matter was tried over two days on October 30 and 31, 2019. OCB called Mr. Jonathan Herlihy ("Mr. Herlihy"), Ms. Sharon Brown ("Ms. Brown") and Mr. James Steedle ("Mr. Steedle") as witnesses. Mr. Stout testified on his own behalf. Medici called Mr. Lawrence Goetschius ("Mr. Goetschius") and Mr. George Berg ("Mr. Berg") as witnesses. Fifty exhibits were agreed to and admitted in evidence at the beginning of the trial and an additional eleven exhibits were marked during the course of trial. The parties submitted post-trial briefs on December 6, 2019. For the reasons set forth below, this court finds (1) that the Proposed Building complies with the requirements of the Agreement, and, to the extent still relevant, (2) that enforcement of the Agreement's terms would be by an award of money damages, not specific performance, if the Proposed Building was found not to comply with the Agreement, and (3) that Medici and Mr. Stout have failed to carry the burden of proof on their defenses.

FINDINGS OF FACT

Based on the pleadings, the admitted exhibits, the testimony at trial, as well as my assessment of the credibility, weight and inferences to be drawn therefrom, I find the following facts, reserving certain details for the discussion of specific legal issues. To the extent that any witness testified otherwise, I do not find that testimony credible, reliable, or in accord with the weight of the other testimony and exhibits in the case and the inferences I drew from the totality of that evidence.

The Parties And The Property

1. OCB is a Massachusetts limited liability company with a principal place of business at 50 Staniford Street, 6th Floor, Boston, MA 02114 and owns the land in Plymouth known as Parcel No. 103-000-014K-171, the OCB Parcel. Ex. 1 ¶1.

2. The OCB Parcel has a street address of 146 Industrial Park Road, Plymouth, MA. Ex. 1 ¶ 2.

3. "OCB" stands for Ophthalmic Consultants of Boston, Inc., a group of 37 ophthalmologists with offices at ten locations. Tr. I-24:9-17.

4. Mr. Herlihy is the chief operating officer of OCB, a position that he has held for 27 years. Tr. I-24:9; I-26:18-19.

5. Medici is a Massachusetts limited liability company with a principal place of business at 139 Sandwich Street, Plymouth, MA and owns the land in Plymouth known as Parcel No. 103-000-014K-177, the Medici Parcel. Ex. 1 ¶ 3.

6. The Medici Parcel has a street address of 148 Industrial Park Road, Plymouth, MA. Ex. 1 ¶ 4.

7. Mr. Goetschius is the executive director of Plymouth Pediatrics Associates ("PPA"), an entity owned by five physicians, four of whom also own Medici. Tr. II-82:13-23.

8. He has held that position since June 2016, six months after PPA was formed, and is responsible for the non-clinical aspects of PPA's business, including finances and strategic planning. Tr. II-83:10-21; II-84:5-10.

9. Mr. Stout, either individually or as Trustee of the Trust, has a place of business at 6 Resnik Road, Plymouth, MA 02360 and owns the land in Plymouth known as Parcel No. 103-000- 014K, the Trust Parcel. Ex. 1 ¶ 5.

10. Mr. Stout has been a real estate developer since 1981, engaging in commercial construction, brokerage and leasing. Tr. I-136:5-9.

11. Mr. Stout has developed approximately 30 properties over his career, including some 10 to 12 properties in the Plymouth industrial park where the Medical Office Complex is located. Tr. I-137:6-8; I-138:16-18.

12. The OCB Parcel, the Medici Parcel and the Trust Parcel are depicted on a plan entitled "Plan To Combine And Subdivide Lots" dated July 23, 2013, and recorded with the Plymouth County Registry of Deeds ("the Registry") on October 15, 2013 at Plan Book 58, Page 247 as Plan No. 438 of 2013 ("the Plan"). Ex. 1 ¶ 6.

13. The Plan depicts three proposed building pads in three phases: Phase I is located on the OCB Parcel; Phase II is located on the Medici Parcel; and Phase III is located on the Trust Parcel. Ex. 1 ¶ 7.

Permitting

14. The record of these proceedings contains a nine page document entitled "Site Permitting Plans For Three 24,000 SF Office Buildings In Two Phases With 360 Parking Spaces" prepared for Mr. Stout's entity ("Site Permitting Plans"). Ex. 3.

15. Mr. Stout purchased what would become the Trust Parcel and the OCB Parcel in 2010, and purchased what would become the Medici Parcel on June 28, 2013. Tr. I-139:9-20.

16. In applying for permitting for the Medical Office Complex, Mr. Stout and his engineer had to consider how many parking spaces were required for each 1,000 square feet of office space (5 spaces per 1,000 square feet under the Plymouth zoning by-law). Tr. I-142:13-20.

17. With that, they determined that the Medical Office Complex could support a maximum of 72,000 square feet of office space, which they originally contemplated as being configured in two three-story 36,000 square foot buildings and, after the acquisition of the Medici Parcel, revised to three two-story 24,000 square foot buildings. Tr. I-141:17- 142:10.

18. The Site Permitting Plans reflect the three building concept with the maximum square feet of office space permitted. Ex. 3.

19. Mr. Stout was seeking approval of a unified complex, which, according to Mr. Stout, is defined by the local by-law as one with more than one building on a single lot, Tr. I-143:5-10, and as unity between buildings in parking, roadway and site work, not appearance, according to Mr. Berg. Tr. II-194:9-14.

20. By memorandum dated April 9, 2013, the Plymouth Director of Planning & Development notified the Director of Inspectional Services that the Planning Board had voted on April 8, 2013 "that the entire lot and all structures are planned and designed as a unified complex, and appropriate provisions are made for shared parking, access, drainage and utilities. . . ." Ex. 59 (emphasis in original).

OCB's Acquisition Of The OCB Parcel

21. In or about 2012, OCB's then practice manager for OCB's Plymouth location, Katie Murphy ("Ms. Murphy"), introduced Mr. Herlihy to Mr. Stout. Tr. I-27:4-8.

22. At that time, Mr. Stout was proposing a three building office complex. Tr. I-29:7-14.

23. Over the course of several meetings with Mr. Stout, Mr. Herlihy told Mr. Stout that OCB was not in favor of an aluminum clad building, was in favor of a brick building (brick required less maintenance and was "the look that we wanted"), and was looking for 12,000 square feet of space. Tr. I-27:22–28:8; I-28:9-12.

24. Mr. Stout told Mr. Herlihy that he was not offering a building of that size at that time, and instead offered OCB 20,000 square feet in a 36,000 square foot building. Tr. I-28:13- 18; Ex. 2.

25. Mr. Stout also offered to lease OCB 12,000 square feet in a 24,000 square foot building, but OCB preferred to own its own building. Tr. I-28:24-29:3.

26. OCB saw itself as the lead developer of the Medical Office Complex, with the ability to attract other medical practices to the Medical Office Complex and the ability to set the quality of the Medical Office Complex, having been disappointed in the quality of other sites that OCB had reviewed. Tr. I-29:21-30:10.

27. Ms. Brown, the director of operations for OCB, also attended meetings with Mr. Stout starting in late 2012. Tr. I-63:13-14; I-64:4-9.

28. During those meetings, Mr. Stout described the office park on several occasions as consisting of three two-story 24,000 square foot buildings arranged in a horseshoe configuration. Tr. I-64:10-16.

29. Ultimately, OCB agreed to purchase a 24,000 square foot building, having been told by Mr. Stout that Mr. Stout thought that his brokerage company, Atlantic Properties ("Atlantic Properties"), could lease the second floor for OCB. Tr. I-3:11-21.

The Common Development Scheme Agreement

30. The Agreement was negotiated by the Trust and OCB with both parties represented by counsel, Amy L. Fracassini, Esq. ("Ms. Fracassini") on behalf of OCB and Dennis L. Ditelberg, Esq. ("Mr. Ditelberg") on behalf of the Trust. Ex. 1 ¶ 10.

31. Mr. Stout wanted an agreement because he anticipated that there would be additional owners within the complex and common expenses for maintenance, plowing and landscaping needed to be addressed. Tr. I-146:10-24.

32. By e-mail dated June 27, 2013 from Mr. Ditelberg to Ms. Fracassini, Mr. Ditelberg sent the first draft of the Agreement, which contained the following recital language:

WHEREAS, the Town of Plymouth Planning Board has determined that the Premises and all structures are planned and designed as a unified complex, and in connection therewith appropriate provisions are to be made for shared parking, access, drainage and utilities, and the Trust reserves the right to develop and improve the Premises by subdividing the Premises up to three (3) lots (Phase I Lot, Phase II Lot, and Phase III Lot, or collectively the Lots) and constructing on the Phase I Lot a 24,000 square foot two story medical office building (Phase I Lot Premises), and constructing a 24,000 square foot two story commercial building on the Phase II and Phase III Lot or any other reasonable configuration of buildings on the Premises so long as the total building area does not exceed 72,000 square feet, with and appropriate access and shared parking, as may be permitted by the Town (hereinafter referred to as the Development).

No provision entitled "Design Parameters" exists in the June 27, 2017 draft of the Agreement. Ex. 1 ¶ 11; Ex. 11.

33. By e-mail dated June 28, 2013, Mr. Ditelberg sent Ms. Fracassini a revised version of the Common Development Scheme which contained the following recital language, with revised language in bold:

WHEREAS, the Town of Plymouth Planning Board has determined that the Premises and all structures are planned and designed as a unified complex, and in connection therewith appropriate provisions are to be made for shared parking, access, drainage and utilities, and the Trust reserves the right to develop and improve the Premises by subdividing the Premises up to three (3) lots (Phase I Lot, Phase II Lot, and Phase III Lot, or collectively the Lots) and constructing on the Phase I Lot a 24,000 square foot two story medical office building (Phase I Lot Premises), and constructing a 24,000 square foot two story commercial building on the Phase II and Phase III Lot or any other reasonable configuration of permitted buildings on the Premises so long as the total building area does not exceed 72,000 square feet, with and appropriate access and shared parking, as may be permitted by the Town (hereinafter referred to as the Development).

This draft of the Agreement also did not contain a "Design Parameters" provision. Ex. 1 ¶ 12; Ex. 12.

34. By e-mail dated July 3, 2013, Ms. Fracassini circulated to Mr. Ditelberg "a redraft of the Common Development Scheme," the purpose of which she described was "to clean up the defined terms, to add some procedural provisions, to add a reciprocal, non-exclusive access agreement (to the extent necessary), some design parameters etc." The July 3, 2013 version adds the following language in redline to the recital:

WHEREAS, the Town of Plymouth ("Town") Planning Board has determined that the Premises and all structures to be built thereon are planned and designed as a unified complex subject to a common or similar design parameters and scheme, and in connection therewith appropriate provisions and reciprocal easements are to be made for shared parking, access, drainage and utilities, and the Trust reserves the right to develop and improve the Premises by subdividing the Premises intoup to three (3) lots ("Phase I Lot", "Phase II Lot", and "Phase III Lot", or collectively the "Lots") and constructing on the Phase I Lot a 24,000 square foot two story medical office building ("Phase I Lot PremisesBuilding"), and constructing a 24,000 square foot two story commercial building on the Phase II Lot and Phase III Lot (or any other reasonable configuration of buildings on the Premises so long as the total building area does not exceed in the aggregate 72,000 square feet), with and appropriate access and shared parking, as may be permitted by the Town (hereinafter referred to as the "Development").

This version added a proposed Design Parameters provision ("the Design Parameters Provision") as follows:

Construction of the buildings on the Phase II Lot and Phase III Lot is intended to consist of a similar or comparable type of commercial building as built on the Phase I Lot. Accordingly, any building to be built on the Phase II Lot or the Phase III Lot shall be consistent with the design and quality of the building built on the Phase I Lot so the buildings have the same type of façade, exterior finishes, doors and windows, similar dimensions, height, and roofline, and similar landscaping so that the three buildings on the Premises create a common looking and unified development on the Premises. Each subsequent building built on the Phase II Lot and the Phase III Lot shall be built using standards, materials and finishes of the same or better quality and criteria used in the building on the Phase I Lot.

Ex. 1 ¶ 13; Ex. 13.

35. According to Mr. Herlihy, OCB proposed this language because it wanted to have "tight language" regarding what the other buildings in the complex would look like and wanted to be sure that it was a common development. Tr. I-33:1-10.

36. By e-mail dated July 10, 2013 at 1:30 PM, Mr. Ditelberg sent Ms. Fracassini "the final, absolute, definitive, etc. Purchase & Sale Agreement," which attached the Agreement as an exhibit. The July 10, 2013 version makes the following changes in redline to the Agreement:

WHEREAS, the Town of Plymouth Planning Board has determined that the Premises and all structures to be built thereon are planned and designed as a unified complex subject to a common or similar design parameters and scheme, and in connection therewith appropriate provisions and reciprocal easements are to be made for shared parking, access, drainage and utilities, and the Trust reserves the right to develop and improve the Premises by subdividing the Premises into three (3) lots ("Phase I Lot," "Phase II Lot," and "Phase III Lot," or collectively the "Lots") and constructing on the Phase I Lot a 24,000 square foot two story medical office building ("Phase I Lot Building"), and constructing a 24,000 square foot two story commercial building on the Phase II Lot and or Phase III Lot (or any other reasonable configuration of permitted buildings on the Premises so long as the total building area does not exceed in the aggregate 72,000 square feet), with appropriate access and shared parking, as may be permitted by the Town (hereinafter referred to as the "Development").

This version revised the proposed Design Parameters Provision as follows:

Construction of the buildings on the Phase II Lot and Phase III Lot is intended to consist of a similar or comparable type of commercial building as built on the Phase I Lot. Accordingly, any building to be built on the Phase II Lot or the Phase III Lot shall be consistent with the design and quality of the building built on the Phase I Lot so the buildings have the same type of façade, exterior finishes, doors and windows, similar dimensions, height, and roofline, and similar landscaping so that the three buildings on the Premises create a common looking and unified development on the Premises. Each subsequent building built on the Phase II Lot and the Phase III Lot shall be built using standards, materials and finishes of the same or better quality and criteria used in the building on the Phase I Lot.

Ex. 1 ¶ 14; Ex. 14.

37. Mr. Herlihy was aware of the removal of the language from the Design Parameters Provision proposed in Ex. 14, and agreed to accept that change because, in his view, the deleted language contained more detail than was required and he was comfortable limiting the provision to the first and last sentence. Tr. I-34:14-35:1-2.

38. Regarding the change from "and" to "or" in the "Whereas" clause in Ex. 14, Mr. Herlihy did not notice that change at the time. Tr. I-35:7-15.

39. On July 11, 2013 at 10:32 AM, Ms. Facassini e-mailed Mr. Ditelberg noting a few "clean up" edits to the purchase and sale agreement and several changes to the Agreement, and attached a hand-marked version of the Agreement with no changes proposed to the sections referenced above. Ex. 1 ¶ 15; Ex. 15.

40. By e-mail dated July 11, 2013 at 11:47 AM, Mr. Ditelberg sent Ms. Fracassini a further revised draft responding to Ms. Fracassini's handwritten comments on the Agreement with no changes proposed to the sections referenced above. Ex. 1 unnumbered ¶; Ex. 16.

41. By e-mail dated July 11, 2013 at 12:41 PM, Ms. Fracassini sent a further revised version of the Agreement to Mr. Ditelberg proposing no revisions to the sections referenced above. Ex. 1 ¶ 16; Ex 17.

42. By e-mail dated July 11, 2013 at 1:49 PM, Mr. Ditelberg responded to Ms. Fracassini indicating his client's acceptance of the changes to the Agreement and authorizing signature. Ex. 17 ¶ 17; Ex. 18.

43. Both parties signed the purchase and sale agreement dated July 11, 2013 ("the Purchase and Sale Agreement"), attaching the Agreement as an exhibit. Page 1-2 of the Purchase and Sale Agreement notes that "The Premises shall be subject and have the benefit of a common development scheme ("Common Development Scheme") in the form of an easement providing for the use, maintenance, repair and replacement of the monument signage, access roads, shared parking areas, exterior lighting, landscaping, use restrictions and other provisions substantially in the form attached hereto as Exhibit A-1." Ex. 1 ¶ 18; Ex. 10.

44. After the Purchase and Sale Agreement was signed, Mr. Stout's companies constructed the OCB building ("the OCB Building") and started marketing the extra space not required by OCB. Tr. I-35:18-36:9.

45. Mr. Stout created the design for the OCB Building, which OCB approved. Tr. I-164:12- 18.

46. On October 31, 2013, Mr. Ditelberg e-mailed Ms. Fracassini a revised Agreement, reflecting a recent subdivision ANR plan endorsed by the Plymouth Planning Board. There were no changes to the above-referenced sections. Ex. 1 ¶ 19; Ex. 19.

47. On November 1, 2013, Mr. Ditelberg e-mailed Ms. Fracassini a proposed revision to the Agreement to reflect a sewer easement. Ex. 1 ¶ 20; Ex. 20.

48. By e-mail dated November 11, 2013, Ms. Fracassini sent Mr. Ditelberg her comments to the deed and the Agreement. Her version revised the recital as shown in redline here:

WHEREAS, the Town of Plymouth Planning Board has determined that the Premises and all structures to be built thereon are planned and designed as a unified complex subject to a common or similar design parameters and scheme, and in connection therewith appropriate provisions and reciprocal easements are to be made for shared parking, access, drainage and utilities, and the Trust reserves the right to develop and improve the Premises by subdividing the Premises into three (3) lots (each being "Phase I Lot", "Phase II Lot", and "Phase III Lot", and sometimes hereinafter or collectively referred to as the "Lots") and constructing on the Phase I Lot a 24,000 square foot two story medical office building ("Phase I Lot Building"), and constructing a 24,000 square foot two story commercial building on the Phase II Lot or Phase III Lot or any other reasonable configuration of permitted buildings on the Premises so long as the total building area does not exceed in the aggregate 72,000 square feet, with appropriate access and shared parking, as may be permitted by the Town (hereinafter referred to as the "Development").

This version made no changes to the Design Parameters Provision other than deleting a stray space. Ex. 1 ¶ 21; Ex. 21.

49. By e-mail dated November 15, 2013, Mr. Ditelberg responded with a revised Agreement, proposing no changes to the above-referenced recital or to the Design Parameters Provision. Ex. 1 ¶ 22; Ex. 22.

50. By e-mail dated November 20, 2013 at 3:16 PM, Ms. Fracassini sent Mr. Ditelberg "some clean up items and [her] comments on the Common Development Scheme Agreement." Ms. Fracassini made no changes to the Design Parameters Provision or the recital provision referenced above, other than what appear to be replicated changes to the quotation mark and comma placement. Ex. 1 ¶ 23; Ex. 23.

51. By e-mail dated November 20, 2013 at 4:37 PM, Ms. Fracassini sent Mr. Ditelberg a further revised version of the Agreement reflecting changes to the sewer easement. No changes were made to the recital provision referenced above or the Design Parameters Provision. Ex. 1 ¶ 24; Ex. 24.

52. Later on November 20, 2013 at 5:30 PM, Ms. Fracassini e-mailed Mr. Ditelberg a closing agenda that included the Agreement with no proposed changes. Ex. 1 ¶ 25; Ex. 25.

53. On November 21, 2013, Ms. Fracassini e-mailed a further version of the Agreement for signature with corrected exhibits, but no other changes were made. Ex. 1 ¶ 26; Ex. 26.

54. On November 21, 2013, Mr. Stout, in his capacity as Trustee of the Trust, signed the Agreement. Ex. 1 ¶ 27; Ex. 27.

55. Mr. Stout reviewed drafts of the Agreement as it was revised. Tr. I-147:2; I-147:10-12.

56. It was important to Mr. Stout that he retain flexibility as the developer with two other parcels within the complex for sale. He did not want to be pigeon-holed into height, type, style or appearance. Tr. I-159:24-160:3.

57. The Agreement is explicitly referenced in the deed to OCB for the Phase I Lot and the deed to Medici for the Phase II Lot. Ex. 1 ¶ 28.

58. The Agreement contains various covenants and restrictions intended to govern the orderly development and use of the OCB Parcel, the Medici Parcel, and the Trust Parcel. Ex. 1 ¶ 29.

59. The final version of the Agreement provides that "the Town of Plymouth Planning Board has determined that the Premises and all structures to be built thereon are planned and designed as a unified complex subject to a common or similar design parameters and scheme[.]" Ex. 27. See Ex. 1 ¶ 30.

60. The final version of the Agreement provides that:

. . . the Trust reserves the right to develop and improve the Premises by subdividing the Premises into three (3) lots (each being "Phase I Lot", "Phase II Lot", and "Phase III Lot" and sometimes hereinafter collectively referred to as the "Lots") and constructing on the Phase I Lot a 24,000 square foot two story medical office building ("Phase I Lot Building") and constructing a 24,000 square foot two story commercial building on the Phase II or Phase III Lot or any other reasonable configuration of permitted buildings on the Premises so long as the total building area does not exceed in the aggregate 72,000 square feet, with appropriate access and shared parking, as may be permitted by the Town (hereinafter referred to as the "Development"). Ex. 1 ¶ 31; Ex. 27.

61. The Agreement provides that total building area on the OCB Parcel, Medici Parcel and Trust Parcel is not to exceed 72,000 square feet. Ex. 1 ¶ 32; Ex. 27.

62. Under the heading "Design Parameters," the final version of the Agreement provides that:

Construction of the buildings on the Phase II Lot and Phase III Lot is intended to consist of a similar or comparable type of commercial building as built on the Phase I Lot. Each subsequent building built upon the Phase II Lot and Phase III Lot shall be built using standards, materials and finishes of the same or better quality and criteria used in the building on the Phase I Lot. Ex. 1 ¶ 33; Ex. 27.

63. Under the heading "Right to Abate Violations," the Agreement provides that:

The provisions contained herein . . . shall run with and bind the land and shall inure to the benefit of and be enforceable by any Lot owner within the Premises, their respective legal representatives, successors, and assigns . . .

If any Lot owner or person in possession of any Lot shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person, or entity owning any other Lot to prosecute any proceedings at law or in equity against the person or entity violating or attempting to violate any such covenant, either to prevent such person or entity from so doing or to recover damages or other dues for such violation.

The failure of any Lot owner to enforce any restriction, assessment, restriction changes, conditions, covenant or agreement herein contained shall in no event be deemed a waiver of the right to do so thereafter as to the same breach or as to one occurring prior or subsequent thereto. Ex. 1 ¶ 34; Ex. 27.

64. By deed recorded with the Registry on November 22, 2013, at Book 43851, Page 323, the Trust conveyed the OCB Parcel to OCB. Ex. 1 ¶ 8.

65. Simultaneously, on November 22, 2013, the Trust recorded the Agreement with the Registry at Book 43851, Page 303. Ex. 1 ¶ 9.

66. At the time of the conveyance, the OCB Parcel had a 24,000 square foot medical office building shell on it. Ex. 1 ¶ 35.

67. In addition to marketing the 6,000 square feet available in OCB's new building, Atlantic Properties also marketed space in two 24,000 square foot buildings that are described in marketing materials as a "3 building medical campus," Ex. 5, which was consistent with what Mr. Herlihy understood that the complex would include. Tr. I-37:1-12.

68. Mr. Stout kept Mr. Herlihy apprised of opportunities for the development of the other two parcels as well as opportunities for the lease of OCB's extra space, but nothing materialized. Tr. I-37:17-38:1.

69. Having failed to find an acceptable tenant, OCB began occupying its extra space itself in or about 2018. Tr. II-66:15-23.

The Proposed Building

70. When Mr. Goetschius was hired by PPA in 2016, PPA was already considering moving its practice. Tr. II-85:10-19.

71. PPA's current location was constructed in the 1960s for four separate practices, and was a two-story building that required PPA's staff to move between floors, which was confusing for patients. Tr. II-86:4-19.

72. PPA retained a broker in 2017 to assist it in its search for a new location and brought in an architect, Mr. Berg of Trapani Associates Architects, in June 2017 to advise it as to its requirements. Tr. II-87:4-17; II-90:8-13.

73. By that time, PPA knew that it needed approximately 12,000 square feet of space. Tr. II- 91:2-4.

74. PPA's principals decided that they did not want to be landlords, but wanted their own building as the "face" of their practice. They also concluded that they did not need a larger building in order to accommodate growth, because they could increase capacity with evening and weekend hours, and that they were not financially able to carry a two-story building. Tr. II-91:5-24; II-104:3-105:4.

75. Mr. Stout originally offered 12,000 square feet in a 24,000 square foot building, but the design of the space was such that PPA would require all of the first floor and a portion of the second floor, which was unacceptable to them. Tr. I-167:19-25; II-123:10-124:24.

76. PPA's principals informed Mr. Stout that they were only interested in a 12,000 square foot one-story building, and Mr. Stout ultimately agreed. Tr. II-92:8-18; II-93:18-20.

77. Medici, the entity controlled by four of PPA's principals, would not have purchased the Medici Parcel if it was required to construct a two-story building. Tr. II-103:24-104:1.

78. Mr. Stout and Medici executed a purchase and sale agreement in July 2018 and closed on the purchase of the Medici Parcel on November 5, 2018. Tr. II-93:21-94:6.

79. Between July and November, Medici engaged in the design of the Proposed Building, lining up a contractor and financing for the construction, and getting permits in place. Tr. II-94:7-21; II-95:25-96:5.

80. With respect to design, Medici toured another pediatric facility designed by Mr. Berg in Bridgewater, Massachusetts, which its principals liked. Tr. II-95:10-14.

81. Meanwhile, in mid-2018, OCB learned that the Trust proposed to sell the Medici Parcel to Medici and that Medici proposed to develop the Medici Parcel (Phase II Lot). Ex. 1 ¶ 36.

82. The Proposed Building was planned to be an approximately 12,000 square foot single-story building. Ex. 1 ¶ 37.

83. On June 29, 2018, Ms. Brown attended a meeting ("the June 29 Meeting") of the Resnik Road Common Development Committee on behalf of OCB, at which Mr. Stout and his son, Andrew, were also present. Ex. 1 ¶ 38; Ex. 28; Tr. I-66:7-11; I-66:14-18; I-66:21.

84. During the course of that meeting, Mr. Stout stated that he was looking to develop a one-story building on the Medici Parcel. Tr. I-66:23-67:3; I-177:2-11.

85. Ms. Brown told Mr. Stout that a one-story building would not be agreeable and that she doubted that it would be accepted by OCB. Tr. I-67:4-7.

86. According to Mr. Stout, Ms. Brown told him that "we would not want to look down on an HVAC unit." Tr. I-152:11-13.

87. At that time, the foundation for a building on the Medici Parcel had already been poured and OCB would be looking down on it. Tr. I-67:8-16.

88. Ms. Brown spoke with Mr. Herlihy about the proposed one-story building within 24 hours of the June 29 Meeting. Tr. I-67:24-68:1.

89. According to Mr. Herlihy, Ms. Brown told him that Mr. Stout was now proposing a smaller building, which is how Mr. Herlihy first learned of it, and also told Mr. Herlihy that she had objected to the construction of a one-story building at the June 29 Meeting. Tr. I- 38:22-39:2.

90. In an e-mail after the June 29 Meeting, Ms. Brown received the meeting minutes for review and approval. Ms. Brown did not reply to the e-mail with any objection to the minutes. Ex. 1 ¶ 39.

91. On July 2, 2018, Mr. Stout sent an e-mail to Mr. Herlihy and Ms. Brown stating:

Plymouth Pediatrics Associates is purchasing 148 IPR, the lot next to you with the foundation. They intend to build a single story building of 12,000 square feet with an appearance similar to your OCB Building. They will be purchasing 2.09 acres including the existing foundation (see attached). I will have a rendering of their building for us to approve or reject within 30 days.

The same e-mail states that the "closing will occur sometime in October or November . . ." Ex. 1 ¶ 40; Ex. 29; Tr. I-43:13-45:2.

92. On July 5, 2018, Mr. Herlihy forwarded to OCB's attorney, Ms. Fracassini, information from Mr. Stout about the proposed construction on the Medici Parcel. Ex. 1 ¶ 41; Ex. 29.

93. On the same date, Mr. Stout signed a purchase and sale agreement with Medici for the sale of the Medici Parcel. Tr. II-36:19-37:8.

94. On July 23, 2018, Mr. Herlihy sent an e-mail to Mr. Stout stating, "Sharon nor I have not been avoiding you. Sharon and I have a conference call with OCB Plymouth Real Estate LLC's Attorney tomorrow to discuss Atlantic Properties requests on New Building and Parking Spaces. The Attorney will contact you once reviewed." Ex. 1 ¶ 42; Ex. 30.

95. On July 24, 2018, Mr. Stout sent an e-mail to Mr. Herlihy and offered to provide the first and second pages of the Medici purchase and sale agreement to OCB. The same e-mail states, "[t]here is a good chance that the Phase II and Phase III buildings will be started this fall." Ex. 1 ¶ 43; Ex. 50.

96. On July 24, 2018, Mr. Herlihy sent an e-mail to Mr. Stout, including Ms. Fracassini as a cc, stating "[it] [w]ould be fantastic to see the remainder of the development built. Not sure of Amy's schedule, but Amy will schedule a call with you." Ex. 1 ¶ 44; Ex. 50.

97. On July 31, 2018, Mr. Herlihy and Mr. Stout had a discussion in the parking lot of 146 Industrial Park Road. Ex. 1 ¶ 45.

98. According to Mr. Herlihy, he told Mr. Stout at that time that "a one story building is not going to work for us." Tr. I-39:7-13.

99. On August 3, 2018, Mr. Stout sent Mr. Herlihy a link to a file storage website to view drawings of the Proposed Building. Ex. 1 ¶ 46; Ex. 31.

100. Renderings prepared by Mr. Berg's firm dated August 1, 2018 and marked as Exhibits 40 and 41 were in that link. Tr. II-97:25-98:3.

101. According to Mr. Herlihy, he reviewed the drawings of the Proposed Building and was disappointed, as he had just told Mr. Stout in the parking lot on July 31, 2018 that a one story building would not work. Tr. I-39:24-40:10.

102. On the same date, August 3, Mr. Herlihy forwarded Mr. Stout's e-mail to Ms. Fracassini, asked that she review its attachment, and reported to her that he had told Mr. Stout "that on our initial discussion a one story building would not work as the value of OCB's building would be compromised as the front and left side of the building would look down on a roof top not at a similar building as defined in the Agreement." Ex. 39.

103. Mr. Herlihy testified that he instructed Ms. Fracassini to "stand down" and not to reach out to Mr. Stout because he thought it unnecessary for her to do so in view of his statement to Mr. Stout that a one-story building would not work. Tr. I-46:15-22.

104. By this time, Mr. Stout had spoken to Medici's architect and attorney about OCB's concerns with the HVAC unit, as a result of which the plans for the Proposed Building were revised to include an atrium that would shield the HVAC unit from view. Tr. I-153:23- 154:12.

105. By e-mail dated August 27, 2019, Mr. Goetschius asked Mr. Stout for "any news on the exterior of the building being satisfactory to the OCB folks?" to which Mr. Stout replied that "As I indicated before, the design is not only acceptable, it's brilliant. Further, I confirmed with my attorney that giving OCB an opportunity to comment was a thoughtful courtesy but not necessary." Ex. 33; Tr. II-100:16-101:11.

106. Mr. Goetschius assumed, based on Mr. Stout's response, that OCB "was on board." Tr. II-100:23-101:16.

107. On or about November 5, 2018, the sale of the Medici Parcel to Medici was finalized. Ex. 1 ¶ 48.

108. From July 5, 2018 to December 18, 2018, OCB's attorney never contacted the Trust or Medici. Ex. 1 ¶ 49.

109. From August 1, 2018 to December 10, 2018, Mr. Herlihy made no additional communications, whether written, verbal or through conduct, to the Trust or Medici that OCB opposed any aspect of the proposed construction on the Medici Parcel. Ex. 1 ¶ 50.

110. Neither Mr. Herlihy, nor anyone at OCB, communicated to the Trust or Medici that OCB's attorney would not be reaching out to discuss the proposed construction on the Medici parcel. Ex. 1 ¶ 51.

111. At no time after July 31, 2018 did Mr. Herlihy communicate to the Trust or Medici that he would not be reaching out to discuss the proposed construction on the Medici parcel. Ex. 1 ¶ 52.

112. According to Mr. Herlihy, he did not follow up with Mr. Stout because he had already told Mr. Stout, in the parking lot, that he was not in favor of the proposed building, that he found the August 3, 2019 e-mail "insulting," and that Mr. Stout did not reach out to Mr. Herlihy after sending the August 3, 2018 e-mail because Mr. Stout understood that "the deal was dead." Tr. I-41:20-25; I-42:16-23.

113. A representative of Medici, Mr. Goetschius, as well as Mr. Stout, attended the December 10, 2018 meeting of the Resnik Road Common Development Committee ("the December 10 Meeting"). Ex. 1 ¶ 53.

114. The meeting minutes of the December 10 Meeting reflect that the June 29 Meeting minutes were corrected to specify that at the June 29 Meeting, Ms. Brown represented that OCB's position was that a 12,000 square foot single-story building would be an issue and in violation of the Agreement. Ex. 1 ¶ 54; Ex. 36; Tr. I-68:9-23.

115. Ms. Brown did not request that the June 29 Meeting minutes be corrected until the December 10 Meeting. Tr. I-68:10-14.

116. By letter dated December 18, 2018 from Ms. Fracassini to Mr. Stout, Ms. Fracassini stated: "As we understand it, you are proposing development of a one story building on the 148 Site. That proposal is not acceptable to our clients and is in violation of the requirements of the Agreement." Ex. 37.

117. Ms. Fracassini's December 18, 2018 letter was the first communication from OCB's lawyer to Mr. Stout regarding the design of the Proposed Building. Tr. I-162:18-24.

"Similar or Comparable" - "Same or Better"

118. OCB engaged Mr. Steedle, its expert witness in this matter, in the spring of 2019 after this lawsuit was initiated. Tr. I-56:12-24.

119. According to Mr. Herlihy, OCB had already determined that the Proposed Building did not comply with the Agreement before hiring Mr. Steedle. Tr. I-56:25-57:4.

120. Mr. Herlihy also acknowledged that, while he is of the view that the Proposed Building devalues the OCB Parcel, OCB has not consulted with any real estate appraiser regarding the impact of the Proposed Building on the value of the OCB Parcel and that neither he nor Ms. Brown has a background in real estate. Tr. I-57:9-20; I-58:16-18.

121. Mr. Steedle has been involved as a project architect in a number of medical office fit-outs, among other projects, including several for OCB over the last five years for which his firm has been compensated. Tr. I-77:23-78:1; I-78:4-8; I-78:14-19; I-78:23-79:7.

122. About 25% of Mr. Steedle's practice is devoted to the design of medical facilities. Tr. I-112:21-24.

123. Mr. Steedle reviewed elevations and renderings for the Proposed Building, as well as plans and elevations for the OCB Building, and created three-dimensional drawings of both buildings. Tr. I-79:16-80:5; Exs. 46-47.

124. Mr. Steedle identified the following differences between the OCB Building and the Proposed Building: (1) the OCB Building is 30'6" high at the rear while the Proposed Building is 15' high; (2) the OCB Building has internal gutters and downspouts while the Proposed Building has external gutters and downspouts; (3) the OCB Building is two stories high, which Mr. Steedle described as typical of office buildings, while the Proposed Building is one story high, which Mr. Steedle described as more typical of industrial uses;

(4) more generally, the size, massing, scale, proportion and shape of the two buildings were not similar; (5) the OCB Building windows are large, square and uniformly spaced, while the Proposed Building's windows are not the same shape, are smaller overall and are not evenly spaced; (6) the OCB Building windows have clear glass throughout, while the top two panels of the Proposed Building windows are opaque, which is noticeable when the lights are on at night; (7) the entrance to the OCB Building is solid brick, while the Proposed Building has an atrium; (8) the banding on the exterior walls of the OCB Building are made of cast stone across the top of the windows, while the Proposed Building uses cast stone for one band and concrete block for the other. Tr. I-84:23-85:4; I-88:24-89:5; I- 90:23-91:3; I-91:23-92:1; I-92:2-6; I-99:9-18; I-100:16-101:2; I-102:11-23.

125. Of the issues identified by Mr. Steedle, he testified that the issue of the discrepancies between the windows in the two buildings was most important, and the issue of the height and proportion of the two buildings was the second most important. Tr. I-117:3-25.

126. Mr. Steedle opined (a) that the architectural details of the Proposed Building were not similar to the architectural details of the OCB Building, pointing to the atrium and the location of the banding on the Proposed Building, and (b) that the materials were not of the same or better quality, particularly the concrete block, which Mr. Steedle described as inferior to brick and to cast stone, and the windows, which were smaller in the Proposed Building. Tr. I-102:3-23; I-108:8-109:8.

127. Mr. Berg testified that 90% of his practice is devoted to health care clients, and the remaining 10% to research facilities, principally medical research facilities, and that he has designed medical facilities located in office parks. Tr. II-133:20-134:3.

128. As part of Mr. Berg's work designing the Proposed Building, Mr. Berg, Mr. Goetschius and the Medici principals visited the OCB Building in the spring of 2017 to see how its fit-out was addressed. Tr. II-139:9-21.

129. In addition, Mr. Berg spent 80 to 100 hours at the Medical Office Complex at all different times of day and times of the year, both driving and walking, first to determine whether the site was suitable to PPA's needs and then to prepare his design of the Proposed Building. Tr. II-141:2-24.

130. The bullet points contained in Medici's counsel's August 3, 2018 e-mail to Mr. Stout, Ex. 32, were prepared by Mr. Berg. Tr. II-142:9-9; II-142:24-143:3.

131. Among other things, Mr. Berg noted that the Proposed Building was being designed (1) to match the brick used on the OCB Building, and (2) to match the color of the window frames and the overall design of the windows on the OCB Building. Tr. II-143:4-16.

132. In addition, Mr. Berg testified that his design incorporated a number of elements that were intended to make the Proposed Building similar to the OCB Building, including: (1) matching the color of the brick; (2) incorporating bands that mimicked the bands on the OCB Building; (3) using the same materials for the sills and lower band of the Proposed Building as that used in the OCB Building; (4) mimicking the window mullions on the OCB Building; and (5) using a similar shape for the roofline of the entranceway to the Proposed Building as that used on the OCB Building. Tr. II-160:7-17; II-161:19-162:5; II- 162:6-22; 162:23-163:9.

133. Mr. Berg opined that the Proposed Building was similar and comparable to the OCB Building and that the standards and finishes were of similar or better quality. Tr. II-191:14-20.

134. When Medici selected the Medici Parcel, Mr. Berg was aware that Medici, town officials and other parties at the Medical Office Complex wanted a design that was similar and comparable to the OCB Building. Tr. II-236:20-237:18.

DISCUSSION

At the outset of trial, all parties agreed that the issues to be resolved at trial were (1) what is the meaning of the Agreement insofar as it purports to regulate construction on the Medici Parcel; (2) does Medici's Proposed Building comply with the terms of the Agreement as construed; and, if not, (3) is the Agreement specifically enforceable by OCB, i.e. does it confer an actual and substantial benefit on OCB as required by G.L. c. 184, §30; and (4) are OCB's claims barred by any defenses. The court's rulings on those issues are as follows.

The Interpretation Of The Agreement And Its Application To The Proposed Building

By its express terms, the Agreement grants to any lot owner the right to enforce its provisions, with one limited exception not relevant here. Because the Design Parameters Provision is enforceable by other lot owners, and allows them to restrict what may be built on the Medici Parcel, it constitutes a restriction on land. Patterson v. Paul, 448 Mass. 658 , 663 (2007) quoting Labounty v. Vickers, 353 Mass. 337 , 347 (1967) ("A 'restriction on land' is a right to compel the person entitled to possession of the land not to use it in specified ways."); Rana v. Nesr, No. 17-P-810, 93 Mass. App. Ct. 1123 , 2018 Mass. App. Unpub. LEXIS 661 at *5 (August 22, 2018) (Rule 1:28 Decision) ("The deed language operates as a restriction because it prevents the defendant, who is in possession of a portion of the joint landscape bed, from using that land in any way he deems suitable.").

Interpreting the language of a restriction requires consideration of several factors. As a threshold matter, "[w]hen the language of the applicable instruments is 'clear and explicit, and without ambiguity, there is no room for construction, or for the admission of parol evidence, to prove that the parties intended something different.'" Rana v. Nesr, supra at *4, quoting Hamouda v. Harris, 66 Mass. App. Ct. 22 , 25 (2006), which in turn quotes Cook v. Babcock, 61 Mass. 526 , 528 (1851).

Where there is ambiguity, the interpretation of restrictions like the Design Parameters Provision is governed by a number of rules of construction, some of which conflict with others. One frequently stated rule is that "restrictions on land are disfavored." Stop & Shop Supermarket Co. v. Urstadt Biddle Props., 433 Mass. 285 , 290 (2001); Donoghue v. Prynnwood Corp., 356 Mass. 703 , 707 (1970) ("Restrictions of this type [approval of building design] will be strictly interpreted in favor of limiting the restraint on use of the granted premises."). [Note 2] However, "[land use] restrictions, as with any other contractually bargained-for agreements, are often beneficial and valuable." Stop & Shop, supra at 290, citing Everett Factories & Terminal Corp. v. Oldetyme Distillers Corp., 300 Mass. 499 , 506-507 (1938) (enforcing restriction imposing annual maintenance charges for railroad track where restriction was "useful and beneficial"); Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85 , 97-98 (1979) (restrictions "may run with the land and are enforceable if 'consistent with a reasonable over-all purpose to develop real estate for commercial use.'"). According to the Stop & Shop court, "[t]here is no superseding public policy between the somewhat differing general principles that, on the one hand, disfavor land use restrictions, and, on the other hand, uphold contractually bargained for restrictions that permit landowners to use their land in certain ways." 433 Mass. at 292.

Restrictions "in general are to be construed against the grantor and in favor of freedom from alienation," Stop & Shop, supra at 290, quoting Ward v. Prudential Ins. Co., 299 Mass. 559 , 565 (1938), which would dictate construing the Design Parameters Provision against Mr. Stout's Trust. However, "[a]mbiguous language in an agreement is to be construed against the drafter of the agreement," Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 569-570 (1997), which would dictate construing the Design Parameters Provision against OCB. But then, that latter rule of construction "has been described as one of 'last resort' in Massachusetts, Aldrich v. Bay State Constr. Co., 186 Mass. 489 , 72 N.E. 53, 54 (Mass. 1904), and it may be especially weak when the parties are sophisticated businesses, RCI Northeast Servs. Div. v. Boston Edison Co., 822 F.2d 199, 203 n.3 (1st Cir. 1987)." Principal Mut. Life Ins. Co. v. Racal-Datacom, Inc., 233 F.3d 1, 4 (1st Cir. 2000).

Several cases counsel that restrictions "have to be construed 'with a view of avoiding results which are absurd, or inconsistent with what was meant by the parties to or the framers of the instrument.'" Kline, 63 Mass. App. Ct. at 831, quoting Maddalena v. Brand, 7 Mass. App. Ct. 466 , 469 (1979). In addition, "the restriction 'must be construed beneficially, according to the apparent purpose of protection or advantage . . . it was intended to secure or promote.'" Chatham Conservation Found. v. Farber, 56 Mass. App. Ct. 584 , 590 (2002), quoting Maddalena, 7 Mass. App. Ct. at 469. Ultimately, "[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." Chatham Conservation Found., 56 Mass. App. Ct. at 590, quoting Maddalena, 7 Mass. App. Ct. at 469, which in turn quotes Jeffries v. Jeffries, 117 Mass. 184 , 189 (1875).

The provision of the Agreement at issue here is that labeled "Design Parameters" in the Agreement and provides:

Construction of the buildings on the Phase II Lot and Phase III Lot is intended to consist of a similar or comparable type of commercial building as built on the Phase I Lot. Each subsequent building built upon the Phase II Lot and Phase III Lot shall be built using standards, materials and finishes of the same or better quality and criteria used in the building on the Phase I Lot.

Ex. 27. The first sentence is not ambiguous: it requires that buildings constructed on the Medici Parcel or the Trust Parcel be "a similar or comparable type of commercial building" as that built on the OCB Parcel. Whatever the disputes over the similarities in appearance of the OCB Building and the Proposed Building, there is no dispute that the Proposed Building is, like the OCB Building, a medical office building to be used by PPA as the location of its pediatric practice. It is a "comparable type of commercial building."

Mr. Steedle's opinion that the OCB Building and the Proposed Building were not similar or comparable types was based largely, if not entirely, on his view that "[m]ost office buildings are two stories or higher. The Medici Building is more of an industrial building that's been used for offices." Tr. I-91:24-92:1. Leaving aside the merits of that opinion, [Note 3] this court is of the view that building height is not governed by the Design Parameters Provision.

The Design Parameters Provision does not itself expressly address the issue of building height, and instead focuses on "standards, materials and finishes." One of the recitals in the preamble to the Agreement, which "may be used to assist in interpreting other parts of the contract," Nassif v. Boston & M. Railroad, 340 Mass. 557 , 563 (1960), does address building height:

[T]he Trust reserves the right to develop and improve the Premises by subdividing the Premises into three (3) lots (each being "Phase I Lot", "Phase II Lot", and "Phase III Lot" and sometimes hereinafter collectively referred to as the "Lots") and constructing on the Phase I Lot a 24,000 square foot two story medical office building ("Phase I Lot Building") and constructing a 24,000 square foot two story commercial building on the Phase II or Phase III Lot or any other reasonable configuration of permitted buildings on the Premises so long as the total building area does not exceed in the aggregate 72,000 square feet . . .

This recital is notable because (1) it is an express reservation of rights in the Trust, not an enforceable obligation benefitting OCB, Nassif, supra ("If the parties had intended to impose on the trust contract obligations to building on the option area, it would have been natural for them to have stated these provisions, not in the preamble, but in explicit covenants or agreements."); (2) it provides that a two-story building will be constructed on the Phase II or the Phase III lot, not both, "or any other reasonable configuration of permitted buildings" (emphasis added); (3) it defines a maximum square footage, not a minimum, for buildings to be constructed in the Medical Office Complex; and (4) it provides that, while the building on the OCB Parcel will be a medical office building, the buildings on the other two lots will be "commercial" buildings.

Based on the language of the Design Parameters Provision in light of the language of the recital, it is clear that the Agreement did not impose a height requirement on the Medici Parcel. Were that language ambiguous - and it is not - the consideration of parol evidence leads this court to the same result. It was OCB who first proposed the Design Parameters Provision, and that provision, as originally proposed, contained considerably more detailed requirements, in bold type below:

Construction of the buildings on the Phase II Lot and Phase III Lot is intended to consist of a similar or comparable type of commercial building as built on the Phase I Lot. Accordingly, any building to be built on the Phase II Lot or the Phase III Lot shall be consistent with the design and quality of the building built on the Phase I Lot so the buildings have the same type of façade, exterior finishes, doors and windows, similar dimensions, height, and roofline, and similar landscaping so that the three buildings on the Premises create a common looking and unified development on the Premises. Each subsequent building built on the Phase II Lot and the Phase III Lot shall be built using standards, materials and finishes of the same or better quality and criteria used in the building on the Phase I Lot.

Ex. 1 ¶ 13; Ex. 13. In the very next draft sent to OCB's lawyer on July 13, 2013, Mr. Ditelberg removed the language in bold type, including any requirement that the buildings on the later developed lots have "similar dimensions, height, and roofline." This was in keeping with Mr. Stout's expressed intent to retain as much flexibility as possible with respect to the development of the two remaining lots in the Medical Office Complex. Tr. I-159:24-160:3. Mr. Herlihy testified that he was aware of the removal of this language and was agreeable to the change "because it was just more detail, I think, than was required." Tr. I-34:25-35:1. Between July 13, 2013 and the date that the Agreement was recorded on November 22, 2013, counsel for the parties exchanged some seven additional drafts of the Agreement, none of which further revised the Design Parameters Provision in any respect, including to impose a height requirement on the remaining lots. On this record, it is clear that the parties expressly considered a height requirement in their negotiations and ultimately agreed not to include such a requirement in the Agreement.

In addition to the issue of the Proposed Building's height, OCB contended at trial that the design of the Proposed Building violates the Design Parameters Provision in a number of other ways. Mr. Steedle pointed to a number of features in his testimony, including: (1) the size, massing, scale and proportion of the Proposed Building; (2) the size, spacing and glass used in the windows; (3) the inclusion of an atrium in the Proposed Building; (4) the location of and materials used on the banding on the Proposed Building; (5) using cast stone, rather than brick, on the lower portion of the façade of the Proposed Building; and (6) using external gutters and downspouts at the rear of the Proposed Building, rather than internal roof drains. Of those, Mr. Steedle identified the windows and the proportion of the building - height versus length - as the most critical elements. Tr. I-117:16-25.

There are two problems with Mr. Steedle's testimony. First, the issues identified by him, leaving aside building height, were not issues for Mr. Herlihy, Ms. Brown, or their lawyer, Ms. Fracassini, when they first learned of the Proposed Building. Instead, at the June 29 Meeting of the committee established under the terms of the Agreement, Ms. Brown told Mr. Stout that a one-story building would not be acceptable. At a meeting between Mr. Herlihy and Mr. Stout in the parking lot of the Medical Office Complex on July 31, 2018, Mr. Herlihy testified that he told Mr. Stout that "a one story building is not going to work for us." To be fair, at the time of those statements, neither Ms. Brown nor Mr. Stout had seen a rendering of the Proposed Building. That lack of knowledge was rectified when Mr. Stout sent Mr. Herlihy an e-mail with a link to drawings of the Proposed Building on August 3, 2018, which included renderings prepared by Mr. Berg's firm. Mr. Herlihy reviewed that e-mail and the drawings, and forwarded it to his lawyer. He requested that she review the attached drawings and informed her that he had told Mr. Stout that "a one story building would not work as the value of OCB's building would be compromised as the front and left side of the building would look down on a roof top not a similar building as defined in the Agreement." Ex. 39. In Ms. Fracassini's December 18, 2018 letter to Mr. Stout, more than four months after Mr. Berg's renderings were provided to Mr. Herlihy and to her, her complaint with the Proposed Building was with respect to its height, [Note 4] not the other design features shown on the renderings: "As we understand it, you are proposing a development of a one story building on the 148 Site. That proposal is not acceptable to our client and is in violation of the requirements of the Agreement." Ex. 37.

It is also noteworthy that Mr. Steedle, OCB's expert, was not hired until April 2019, after this lawsuit was commenced. As a result, his analysis of other design features played no part in OCB's original objections to the Proposed Building or in OCB's decision to bring suit and appears to be an after the fact rationale for OCB's position.

Second, as was the case with the issue of height, a number of the design elements criticized by Mr. Steedle were the subject of negotiation between the parties and were ultimately excluded as requirements in the Agreement. Language requiring "the same type of façade, exterior finishes, doors and windows" was intentionally deleted along with the language requiring "similar dimensions, height and roofline." Having been expressly excluded during the course of negotiations, OCB cannot read those requirements back into the Agreement now. See Collins v. Locks & Keys of Woburn, Inc., No. 14-P-1556, 88 Mass. App. Ct. 1115 , 2015 Mass. App. Unpub. LEXIS 1117 at *6 (December 4, 2015) ("The time to impose such a requirement was during the drafting of the settlement agreement. Post hoc contract interpretation is no cure for the failure to obtain a desired contract provision during negotiations.").

In the end, OCB is left with the express requirement that the Proposed Building "be built using standards, materials and finishes of the same or better quality and criteria used in the building on the [OCB Parcel]. Mr. Steedle [Note 5] did testify that the concrete block used on a portion of the façade of the Proposed Building was inferior to the brick and cast stone used on the OCB Building. Tr. I-119:14-23. While conceding that there was no difference in the strength of the two materials, Mr. Steedle was of the view that concrete was inferior to brick based on "cost and perception." Tr. I-120:1. Mr. Berg [Note 6] was of the view that brick and concrete block were comparable materials and that the use of one over the other was a design choice. He further testified, more generally, that the standards, materials and finishes for the Proposed Building were of the same or better quality than those of the OCB Building. Tr. II-172:11-173:5. This court finds Mr. Berg's testimony more credible.

Enforceability Of The Design Parameters Provision Under G.L. c. 184, §30

Although this court concludes that the Proposed Building complies with the terms of the Agreement as construed, the court further concludes that, even if the Proposed Building did not so comply, the Design Parameters Provision is unenforceable except by way of money damages pursuant to G.L. c. 184, §30. [Note 7] That statute provides that no restriction shall be enforced unless it is determined to be "of actual and substantial benefit to a person claiming rights of enforcement," and, even then, will "not be enforced except by award of money damages if any of several enumerated conditions are found to exist." Blakely v. Gorin, 365 Mass. 590 , 593 (1974).

The Design Parameters Provision here is of actual and substantial benefit to the parties in that it ensures that the buildings in the Medical Office Complex will be harmonious: similar or comparable commercial buildings built using standards, materials and finishes of the same or better quality and criteria as those used in construction of the OCB Building. This requirement helps preserve each party's investment in its parcel. See Gulf Oil Corp. v. Fall River Housing Authority, 364 Mass. 492 , 500 (1974) (restriction intended "to assure the orderly and mutually beneficial development" of land was of actual and substantial benefit); Atwood v. Walter, 47 Mass. App. Ct. 508 , 513 (1999) (restrictions on construction in a single-family residential subdivision "are of actual and substantial benefit to the plaintiff by ensuring that the quality and unique character of [the subdivision] is maintained"); Maddalena, 7 Mass. App. Ct. at 470 (enforcing restrictions in a 78 lot subdivision that were "obviously intended to maintain the aesthetic qualities of the property and its waterfronts.").

The issue of whether the Design Parameters Provision should be specifically enforced is, however, a different matter, and one on which the defendants bear the burden of proof. See Tonsberg v. Lanza, 27 LCR 394 , 401 (2017) ("A party who seeks under the third sentence of §30 to avoid a restriction's bite has the burden of proving that the sentence applies."). The fourth and fifth clauses of the third sentence of § 30 are applicable here.

The fourth clause excuses enforcement of a restriction except by money damages where "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." Blakeley, supra, provides an example of a restriction found unenforceable under the fourth clause. There, the restriction required that a passageway be kept open, thereby preventing the owner of parcels abutting the passageway from connecting them with a bridge between the upper floors of an existing and proposed building. Because "[t]he uncontradicted evidence was that a free standing tower [i.e. one without the bridge] is economically unfeasible," the court concluded that "[t]he record also clearly supports a conclusion that continued enforcement of the restriction would tend to impede reasonable use of the land for purposes for which it is most suitable." 365 Mass. at 606. In contrast, in Cogliano v. Lyman, 370 Mass. 508 (1976) the court declined to find the fourth clause applicable where the restriction effectively required that the land be used as a tree and plant nursery, the defendants had "prospered in the nursery business at its location," id. at 510-511, and that use "contributed to maintaining the residential character of the place; and continuation of the restriction was not calculated to impair the growth of the neighborhood in a manner inconsistent with the public interest." Id. at 514.

The Blakeley court also relied on the fifth clause of §30, which excuses enforcement where "enforcement, except by award of money damages, is for any other reason inequitable or not in the public interest." According to the court, clause five "unquestionably confers the broadest discretion on the court." 365 Mass. at 606. In determining whether to enforce the passageway restriction before it only by an award of money damages, the court considered the harm to the petitioners from enforcing the restriction versus the harm to respondents by declining enforcement, the fact that the land at issue had been vacant for over a decade, and the impact of that on the city of Boston's tax base. Id. at 607.

Here, the evidence was to the effect that, in 2012 and 2013, OCB wanted to own, not rent, its space and so was not amenable to Mr. Stout's proposal that it rent the space that it wanted - 12,000 square feet - in a larger building constructed and owned by the Trust. Mr. Stout did not want to sell the OCB Parcel to OCB without constructing a two-story building on it. Mr. Stout suggested that, if OCB agreed to a two-story building, Mr. Stout's brokerage company could lease the second floor to others for OCB. In time, OCB agreed to Mr. Stout's terms.

In the succeeding five years, Mr. Stout was unable to find a satisfactory tenant for OCB's second floor. OCB took that space over for its own purposes in or about 2018, having carried it since 2013. [Note 8] Tr. II-66:15-23. Over that same period of time, Mr. Stout was unable to find a purchaser for the Medici Parcel or the Trust Parcel - the Medici Parcel with an existing foundation constructed on it - and presumably was carrying the expense of those properties. In 2018, about when OCB decided to take over its second floor space, Mr. Stout agreed to sell the Medici Parcel with only a one-story building, even though the Trust's permits allowed a significantly larger building. It is also notable that, as of the time of trial, it had been some six and a half years since the Medical Office Complex was permitted and both the Medici Parcel and the Trust Parcel remained undeveloped.

On those facts, this court concludes that the fourth clause of §30's third sentence applies and that the continuation of a restriction requiring a two-story building on the Medici Parcel, if it exists, "would impede reasonable use of the 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." G.L. c. 184, §30. The court further concludes that the fifth clause also applies where, as in Blakeley, the Medici Parcel has been undeveloped and unproductive with the attendant impact on the tax base of the Town of Plymouth.

Medici's and Mr. Stout's Defenses [Note 9]

While not necessary to the resolution of this dispute, the court also finds that Medici and Mr. Stout did not carry their burden of proof on their defenses. Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271 , 278 (1970) ("[Laches] is an affirmative defense as to which the defendant had the burden of proof."); Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133 , 136 (1922) ("Waiver has often been defined as the voluntary relinquishment of a known right. The burden of proving waiver in this posture of the case rested upon the defendant, who in effect alleged waiver by the plaintiff of his rights."). [Note 10] See also Gannon v. Boston, 476 Mass. 786 , 798 (2017) ("[o]rdinarily a party asserting an affirmative defense bears the burden of proof") quoting 9 L.K. Larson, Employment Discrimination §156.03[4][c] (2d ed. 2016).

Here, OCB, through Ms. Brown and Mr. Herlihy, told Mr. Stout at the June 29 Meeting and in an impromptu meeting in the parking lot on July 31, 2018 that OCB had issues with the Proposed Building. After Mr. Stout sent his August 3, 2018 e-mail to Mr. Herlihy with a link to drawings of the Proposed Building, Mr. Stout sought confirmation from his own lawyers on August 6, 2018 that OCB did not have design approval authority over the Proposed Building. The record is silent thereafter as to any communications between Mr. Stout and OCB regarding OCB's approval of the Proposed Building, presumably because Mr. Stout concluded that he did not need OCB's approval. There was, however, an exchange between Mr. Stout and Mr. Goetschius on August 27, 2018, Ex. 33, in which Mr. Goetschius asked Mr. Stout whether the Proposed Building was satisfactory to OCB. Mr. Stout responded: "As I indicated before, the design is not only acceptable, it's brilliant. Further, I confirmed with my attorney that giving OCB an opportunity to comment was a thoughtful courtesy but not necessary." Mr. Goetschius assumed, based on this exchange, that "OCB was on board." Tr. II-100:23-101:16.

In hindsight, it is likely that all three parties wish that more attention had been paid to the Design Parameters Provision during the summer of 2018. Mr. Herlihy's conduct in telling Mr. Stout that OCB's attorney would contact him once the Proposed Building was reviewed, and then telling his attorney, Ms. Fracassini, not to reach out to Mr. Stout and to "stand down" leaves something to be desired, particularly where architectural renderings had now been provided to him for his review and Mr. Herlihy had been told that Mr. Stout and Medici were planning to start construction in the fall. On the other hand, Mr. Stout's failure to pursue OCB's approval of the Proposed Building after providing the renderings on August 3, 2018 is problematic and Medici's reliance on Mr. Stout's August 27, 2018 e-mail as confirmation of OCB's approval was not reasonable under the circumstances. It was Medici who would pay the price if OCB objected to the Proposed Building and so the burden was on Medici to satisfy itself that it had what it needed in order to close on the acquisition of the Medici Parcel.

On this record, while it is a close call, the court concludes that Medici and Mr. Stout did not carry their burden of proving that OCB unreasonably delayed in asserting its position or that its conduct was inequitable or in bad faith. See West Broadway Task Force v. Boston Housing Authority, 414 Mass. 394 , 400 (1993) ("The doctrine of laches operates in equity as an affirmative defense against a plaintiff whose unreasonable delay in bringing a claim results in some injury or prejudice to the defendant."). Mr. Stout's defense suffers from the additional defect that he suffered no injury as a result of OCB's alleged delay. Similarly, the court does not find that OCB waived its claims. See M.J.G. Properties, Inc. v. Hurley, 27 Mass. App. Ct. 250 , 252 (1989) ("the question of waiver [is] a question of fact in light of all the circumstances, including the existence of the antiwaiver clause.").

CONCLUSION

For the foregoing reasons, judgment shall enter dismissing Count I of the complaint with prejudice, and, on Count II of the complaint and Count One of the counterclaim, judgment shall enter declaring that the Proposed Building complies with the terms of the Agreement, that a failure to comply would be enforceable by money damages only, and that the defendants have failed to establish their affirmative defenses.