MISC 11-447608

March 21, 2013

DUKES, ss.

Long, J.



This case is plaintiff Dwight Arundale’s appeal of the Edgartown Planning Board’s decision to deny ANR [Note 2] endorsement of his plan to divide his lot in the Sweetened Water Farm subdivision (“Subdivision”) into two lots. G.L. c. 41, § 81P allows planning boards to grant such endorsement if sufficient frontage exists. The Planning Board refused to endorse Mr. Arundale’s ANR plan on the grounds that the two lots shown on the plan lacked frontage because they would not have a legal right of access over the roadways owned by the Sweetened Water Association (“Association”), the Subdivision homeowners’ association.

Three documents address the 15 lots and other common properties and roadways in the Subdivision. First, the deeds to each lot were granted subject to a Declaration of Restrictive Covenants (“Declaration”), recorded in 1973, which prohibits further subdivision of the lots. Second, in 2005, the Association adopted Rules and Regulations for Sweetened Water Farm (“Rules and Regulations”) which limit access to the common roads to the owners of the 15 Subdivision lots then in existence and their guests. Third, in 2008, the Association recorded an Amended and Restated Declaration of Restrictive Covenants (“Amended Declaration”) which reiterated the prohibition against further subdividing the lots.

Mr. Arundale contends the Planning Board had no authority to rely on the Association’s various restrictions and regulations to deny endorsement of his ANR plan. He also contends he was not bound by any of them. In support of this, he argues that when he purchased his lot in 2004, the restrictions in the 1973 Declaration had expired by operation of statute. See G.L. c. 184, §§ 23 and 27 (prescribing thirty year limit on restrictions affecting real property). He alleges that the Rules and Regulations were a nullity because they were enacted in furtherance of the Declaration, which was no longer in effect. Finally, he claims the restrictions in the Amended Declaration do not bind him because he never assented to the covenants they contain.

The Planning Board disagrees, contending that it may properly refuse to endorse an ANR plan when access to a roadway bounding the lots depicted on an ANR plan is illusory. See Corcoran v. Planning Bd. of Sudbury, 406 Mass. 248 , 251 (1989) (planning boards authorized to withhold ANR endorsement where “access implied by [the] frontage is illusory in fact”). It contends that Mr. Arundale’s right of access was illusory for essentially two reasons. First, the Sweetened Water Association had the authority to pass the Rules and Regulations whether the Declaration remained in effect or not. Second, it contends that Mr. Arundale agreed to both the Rules and Regulations and the Amended Declaration and is thus estopped from disputing his rights of access over the common roads.

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight, and inferences to be drawn from that evidence, and as more fully set forth below, I find that the Planning Board properly relied on the 2005 Rules and Regulations in denying endorsement of Mr. Arundale’s ANR plan, and thus his appeal of the Planning Board’s decision is DISMISSED, WITH PREJUDICE. Facts These are the facts as I find them after trial.

Sweetened Water Farm

In 1970, the Vineyard Open Land Foundation (“VOLF”) was established as a nonprofit charitable trust to promote the preservation of the rural character of Martha’s Vineyard. VOLF was the sole owner of the 75 acres of land which presently comprise the Subdivision. Prior to its ownership by VOLF, the property had been used as a farm. In November 1973, VOLF filed the Sweetened Water plan with the Edgartown Planning Board seeking approval to divide the property into 15 lots. The deed to each lot was conveyed subject to a Declaration of Restrictive Covenants dated November 13, 1973 and recorded in the Dukes County Registry of Deeds on the same day.

The Declaration states “[the] Foundation desires to preserve the natural beauty and rural quality of the Property. It is the intent of this Declaration that the structures and activities of man be humbly combined with the land so that man’s presence is a mild enhancement to the dominant natural and agricultural features of the Property.” Declaration of Restrictive Covenants at 1. The Declaration defines “Lot” by making reference to the “plan entitled ‘Sweetened Water’, a Sub-Division of Land in Edgartown, Mass. Surveyed for the Vineyard Open Land Foundation , dated September 17, 1973, by Dean R. Swift, Registered Land Surveyor.”

There are four types of lots within the Subdivision: pasture lots (Lots 1, 2, 3A, 4A and 5), dell lot (Lot 6), field lot (Lot 7), and woods lots (Lots 8, 9, 10, 11, 12, 13, 14 and 15). In November 1975, VOLF recorded a plan that slightly altered the boundaries of Lots 3 and 4, labeling them Lot 3A and Lot 4A. Mr. Arundale owns Lot 3A, a pasture lot. According to the Declaration, “[e]ach Pasture Lot is intended to provide an extensive area of land for the enjoyment of the Owner while retaining the pleasant rolling and open character of the fields which each pasture Lot contains.” Declaration at 18.

The Declaration also provides that “No Lot shall be subdivided so as to create two or more Lots, but this shall not prohibit an Owner from conveying a portion of his Lot to the Owner of an Adjacent Lot.” Declaration at 16.

The Subdivision homeowners’ association, the Sweetened Water Association, Inc., was established on October 30, 1973 when its Articles of Organization were certified by the Massachusetts Secretary of State. The Articles provide that the Association is organized and shall be operated for the purpose of “preserv[ing] the rural quality and scenic beauty of the Property and…maintain[ing] and conserv[ing] the landscape, open spaces, and other common properties thereon in accordance with the provisions of said Declaration of Restrictive Covenants (i) by owning, acquiring, constructing, and maintaining…private ways…(iii) by restricting the development and use of the Property in accordance with said Declaration of Restrictive Covenants…and (v) by performing such other acts and deeds necessary or appropriate in furtherance of the foregoing purposes.” Articles of Organization Section I (A). The Association’s charter was revoked on November 17, 1986 after the Association failed to file its annual certification reports, but was later revived by application under G.L. c. 180, § 10C on December 9, 2005.

The Arundale Property

Mr. Arundale purchased Lot 3A, the 2.591 acre parcel at 26 Louis Field Road, from John D. Smith on October 1, 2004. At the time Mr. Arundale purchased the property he had conversations with his attorney, Ronald Rappaport, about whether the Declaration of Restrictive Covenants that was recorded in 1973 was still in effect. G.L. c. 184, §§ 23 and 27 provide that restrictions on the use of land imposed after December 31, 1961 are limited to a duration of thirty years, but may be extended for additional periods of twenty years. The restrictions had not been extended or re-enacted at that time. Believing he was not bound by the restrictions in the Declaration, Mr. Arundale attended the Sweetened Water Association meeting in July 2005 to tell the members in attendance, as a courtesy, of his plans to build a guest house on his lot, a use which was prohibited under the terms of the Declaration. He was met with significant opposition from the Association’s members who, according to Mr. Arundale, “went ballistic.” Faced with such opposition, Mr. Arundale decided to suspend his plans for a guest house.

After the July 2005 meeting, the Subdivision homeowners reached out to Mark DiOrio, a real estate lawyer who owns Lot 6 in Sweetened Water, for two purposes. First, they asked Attorney DiOrio to work with Mr. Arundale to see if a compromise could be reached on his proposal for a guest house. Second, they asked him to address what they felt had become an unclear situation with respect to the covenants in the 1973 Declaration. In August 2005, Attorney DiOrio spoke with Mr. Arundale to see if an agreement could be reached that would allow for Mr. Arundale to build a guest house in a way that the other homeowners could accept. This was not an easy conversation. Mr. Arundale felt that he had been unfairly and rudely treated by the homeowners at the July 2005 meeting, and said so. Attorney DiOrio did not disagree, but suggested trying to find a way to move beyond any hurt feelings. Nothing was resolved during that conversation, but Mr. Arundale said that either he or his attorney would review an amendment to the Declaration that Attorney DiOrio had been asked by the Association to prepare, which might offer an acceptable compromise on the guest house issue.

Rules and Regulations for Sweetened Water Farm

During the summer of 2005 and at various meetings prior to that time, a number of subdivision homeowners raised concerns about the use of its common areas, including its private roads. As noted above, in addition to working with Mr. Arundale, Attorney DiOrio was requested to draft a set of rules and regulations that would formalize what he described as “informal procedures over the last number of years.” Although it does not appear that there had ever been a set of rules and regulations prior to that point, the Declaration provides that homeowners’ use and enjoyment of common areas is subject to “rules and regulations from time to time adopted by the Association.” Declaration at 5.

On the subject of the Subdivision’s common roadways, the Rules and Regulations drafted by Attorney DiOrio provided that the “use [of these roads] by any Owner, family member, or visitor is limited to access by vehicle, bicycle, or foot to one single family residence on a Lot and one Guest House on a Lot (to the extent such single family residence and Guest House is approved for such Lot in accordance with the terms and provisions of the Declaration).” Rules and Regulations, 9(iii) at 2. This proposed allowance of a guest house reflected a change in the Amended and Restated Declaration of Restrictive Covenants that Attorney DiOrio was simultaneously drafting during the late summer of 2005 in an effort to reach a compromise with Mr. Arundale and the homeowners. [Note 3]

The Rules and Regulations were mailed to all of the Subdivision’s homeowners in September 2005, followed by an electronic copy that was emailed by Gail Eliot, the Association’s treasurer, on November 22, 2005. The email alerted everyone to a vote on the Rules and Regulations that would take place on December 17, 2005 and provided a proxy form that homeowners could use if they could not attend the meeting in person. Completed proxy forms were to be mailed to Ms. Eliot at her Edgartown address. Attorney DiOrio spoke briefly with Mr. Arundale by telephone in October 2005. Mr. Arundale expressed no objections to the Rules and Regulations but remained concerned about his ability to build a guest house. Attorney DiOrio subsequently attempted to speak again with Mr. Arundale before the vote, leaving messages on his answering machine as well as sending emails. They did not connect directly, but in early December 2005, Mr. Arundale left a message on Attorney DiOrio’s answering machine saying that he had signed the proxy in favor of the Rules and Regulations and had sent it back to Ms. Eliot.

The Rules and Regulations passed by a vote of 12-1 at the Association’s December 17 meeting. Attorney DiOrio attended the meeting and heard Ms. Eliot announce the proxy votes, stating that Mr. Arundale and his wife had voted in favor. As announced at the meeting, only one Subdivision homeowner, the Williamses, voted against. The proxy documents no longer exist—they most likely were discarded after the tally was announced—and were thus not available for introduction into evidence at trial.

The Amended and Restated Declaration of Restrictive Covenants for Sweetened Water Farm

In addition to the Rules and Regulations, Attorney DiOrio also drafted an Amended Declaration during the late summer of 2005. The principal difference between the Amended Declaration and the original Declaration from 1973 was that the Amended Declaration permitted the construction of a guest house subject to size and siting restrictions that were intended to limit its visibility from any common rights-of-way.

The Amended Declaration was sent to Mr. Arundale during the fall of 2005. Attorney DiOrio spoke to Mr. Arundale in early October and informed him that a draft version of the Amended Declaration had received substantial support among the homeowners during the August 20, 2005 meeting, and that the Amended Declaration would permit him to build a guest house on his property. Mr. Arundale, however, expressed hesitation about signing the Amended Declaration, telling Attorney DiOrio that it seemed too long and convoluted.

Around June 2006, Attorney DiOrio heard from other homeowners in the Subdivision that Mr. Arundale might now be willing to sign the Amended Declaration. He then sent both an electronic version and a hard copy to Mr. Arundale. By the summer of 2006, most of the homeowners had signed the Amended Declaration and the signatures were being held in escrow by attorney Martin Healy of Goodwin Procter LLP in Boston. [Note 4]

During the summer of 2007, Attorney DiOrio spoke by telephone with Mr. Arundale about the Amended Declaration he had sent him. Attorney DiOrio told Mr. Arundale that the Williams family, who own Lot 7 diagonally adjacent to Mr. Arundale, had filed an ANR plan to subdivide their lot, which the other homeowners opposed. Mr. Arundale told Attorney DiOrio that he was also against the subdivision of that Lot and would oppose the Williamses’ plan. Mr. and Mrs. Williams later withdrew their plan.

There was contradictory evidence on whether Mr. Arundale ever signed the Amended Declaration. Attorney DiOrio believed that it had been signed and sent to Attorney Healy in mid-2006 to hold in escrow, prior to speaking with Mr. Arundale by phone during the summer of 2007. [Note 5] Mr. Arundale denies ever signing the Amended Declaration. Attorney DiOrio testified that he does not have Mr. Arundale’s signature page nor has he ever seen it. Regardless, there was a two-step procedure in place that required the homeowners to sign the Amended Declaration and then subsequently authorize Attorney Healy to release their signature pages from escrow as a final way of confirming that they in fact wished to move forward with the Amended Declaration. The Amended Declaration, along with the signature pages of 13 out of 15 homeowners who authorized their release from escrow, was recorded on August 11, 2008. If there was a page with Mr. Arundale’s signature, it was never released from escrow.

The Proposed Division of the Arundale Lot

Mr. Arundale’s ANR plan divides Lot 3A into Lot 1 and Lot 2. Lot 1 contains 1.37 acres and abuts Louis Field Road, one of the Subdivision’s private roads and part of its common areas. Lot 2 contains 1.23 acres and abuts Louis Field Road and Beetle Swamp Road, also a Subdivision private road and common area. Both Lots 1 and 2 exceed the minimum lot size of 21,780 square feet for the R-20 residential zoning district. On November 2, 2010, the Association sent Mr. Arundale a letter informing him that in its view, his proposed plan violated the provisions of the Amended Declaration and the Rules and Regulations. On November 4, 2010, Mr. Arundale filed a Form A: Application for Endorsement of Plan Believed Not to Require Approval (“Application”) with the Edgartown Planning Board.

On April 6, 2011 the Planning Board denied endorsement of Mr. Arundale’s Application, listing five reasons for its action. The Planning Board supplemented its decision the next day, April 7, listing a further reason for its denial, that “[b]ased on the evidence presented, the lots shown on this plan appear to lack a legal right of access over the roadways owned by the homeowners’ association.” The Board has moved forward in this action, limiting its defense to the grounds stated in the April 7th letter. Specifically, the Planning Board contends that Mr. Arundale’s plan violates paragraph 9(iii) of the Rules and Regulations which adopts the definition of Lot found in the 1973 Declaration and by so doing limits the use of roads in the Subdivision to one single family residence and one guest house on each of the original 15 Lots as laid out on the 1973 VOLF plan.


A planning board may refuse to endorse an ANR plan when the lots lack sufficient frontage because they have no legal access to the roadways shown on the plan. See McCarthy v. Planning Bd. of Edgartown, 381 Mass. 86 , 87-88 (1980) (ANR plan properly denied where lots had adequate frontage under Edgartown zoning bylaw but failed to comply with additional access requirement imposed by Martha’s Vineyard Commission “road district” regulations). The Planning Board’s denial of Mr. Arundale’s ANR plan thus depends on whether either the provision regulating the use of common rights-of-way in the Rules and Regulations or the restriction on further dividing lots in the Amended Declaration were valid and binding on Mr. Arundale.

I find and conclude that the Rules and Regulations passed by the Association in December 2005 were valid, that Mr. Arundale voted in favor of those rules, and that he is thus estopped from challenging the Planning Board’s reliance on those rules in denying his ANR plan. The testimony presented at trial demonstrated that during 2005, Mr. Arundale’s primary concern was building a guest house on his property. At the time he purchased the property, Mr. Arundale belived he had a right to subdivide his lot, but, as he testified, the prospect of subdividing it was never his “key intention.” His key intention at that point was the construction of a guest house on his lot. In early 2005, shortly after Mr. Arundale purchased his lot, he had plans drawn up for his guest house and had already ordered the lumber and shipped it to the Island. Mr. Arundale’s focus on the guest house corroborates Attorney DiOrio’s recollection of his conversations with Mr. Arundale as being generally in support of the Rules and Regulations affecting the common lands, but remaining concerned about other homeowners interfering with his plans for a guest house.

I also find and conclude that Mr. Arundale signed his proxy vote in favor of adopting the Rules and Regulations. Attorney DiOrio received a voicemail from Mr. Arundale in early December 2005, shortly before the vote took place on December 17, stating that he had signed the proxy in favor of the vote and returned it to Gail Eliot. I credit Attorney DiOrio’s testimony that he attended the December 17 vote and heard Ms. Eliot announce Mr. Arundale’s proxy vote in favor of the Rules and Regulations. [Note 6]

Mr. Arundale had good reason to vote in favor of the Rules and Regulations. The key provision of the Rules at issue here, section 9(iii), clearly favored Mr. Arundale because it broadened access to the common roadways to include “one single family residence on a Lot and one Guest House on a Lot…” (emphasis added). Furthermore, Mr. Arundale’s own testimony regarding whether he voted in favor of the Rules and Regulations was equivocal. Although Mr. Arundale testified that he remembered Attorney DiOrio contacting him to remind him to return his proxy vote, and admitted it was possible that he left a voicemail for Attorney DiOrio stating that he had voted in favor of the Rules and Regulations and returned the proxy form, when asked if he recalled actually returning the proxy form, Mr. Arundale claimed he could not recall this key detail. Thus, I do not credit his attempt to deny an affirmative vote.

I find that the 1973 Declaration, which states that rules and regulations from time to time may be adopted by the Association, expired by operation of law. See G.L. c. 184, § 23 (restrictions on the use of land subject to thirty year limitation). But the Association did not derive its authority to adopt rules and regulations solely from the Declaration. As a corporate body, the Association’s powers and authority are laid out in its Articles of Organization. See Elisian Guild, Inc. v. U.S., 412 F.2d 121, 123 (1st Cir. 1969) (“a corporation is empowered to act not in general but only in accordance with the limited powers given to it by its Articles of Incorporation”). The Association held title to the common roads in the Subdivision by deed dated December 1, 1975, and was empowered by its Articles to take action relative to the common properties in the Subdivision. The Articles authorize the Association to “preserve the rural quality and scenic beauty of the Property and to maintain and conserve the landscape, open spaces, and other common properties thereon in accordance with the provisions of said Declaration of Restrictive Covenants (i) by owning, acquiring, constructing, and maintaining…private ways…(iii) by restricting the development and use of the Property in accordance with said Declaration of Restrictive Covenants…and (v) by performing such other acts and deeds necessary or appropriate in furtherance of the foregoing purposes.” [Note 7] Sweetened Water Association, Inc. Articles of Organization Section I(A) (Revived Dec. 9, 2005). The Association could therefore exercise the powers granted to it in the Articles by passing reasonable rules and regulations governing the use of common roadways. See Rawan v. Massad, 80 Mass. App. Ct. 826 , 831 (2011) (trustees of homeowners association had authority pursuant to terms of its trust to adopt a rule and regulation governing vehicle use on common driveway).

Furthermore, as in Rawan, section 9(iii) of the Rules and Regulations is not an unreasonable restriction. See 80 Mass. App. Ct. at 831-32. It does not deprive Mr. Arundale from accessing his lot, inviting guests to his home, or building the guest house that he wanted. It simply acts to protect the expectations of the homeowners that the Subdivision will maintain its rural quality, open spaces, and natural features by limiting development to the original 15 lots as laid out on the Subdivision plan.

Although the Association’s bylaws were not offered into evidence at trial, Mr. Arundale has never alleged that the December 17, 2005 vote was conducted improperly. Moreover, the facts demonstrate he would have no grounds to make such a contention. The Rules and Regulations were sent to all homeowners in September 2005. The homeowners also received an email on November 22, 2005 providing them notice of the December 17 vote and proxy forms to fill out if they could not attend the meeting in person. Eight owners attended the meeting and five voted by proxy with only two owners not returning their proxy votes. The Rules and Regulations were passed overwhelmingly by a vote of 12-1. [Note 8]

Mr. Arundale contends that even if the Rules and Regulations were validly passed, it requires a tortured interpretation of section 9(iii) to arrive at the conclusion that it limits use of the common roads to the owners of the original lots as laid out on the Subdivision plan. I disagree. The Rules and Regulations plainly state that capitalized terms not defined therein will have the meanings as described in the Declaration of Restrictive Covenants. “Lot” is capitalized in the Rules and Regulations, but not defined. Thus, its meaning must be found in the Declaration. There, “Lot” is defined with reference to the Sweetened Water Subdivision plan recorded in 1973. It requires no significant leap to understand that the Rules and Regulations do not grant access over common roads to a newly created lot not appearing on the original Subdivision plan.

Mr. Arundale cites Hobbs Brook Farm Co. Ltd. Partnership v. Planning Bd. of Lincoln, 48 Mass. App. Ct. 403 (2000), as support for his contention that the Planning Board improperly relied on the Association’s Rules and Regulations in refusing to endorse his ANR plan. There, the project proponent sought endorsement for an ANR plan depicting lots with frontage along Route 2. The planning board declined to endorse the plan because the proponent had not obtained the necessary curb cut permits from the Massachusetts Department of Highways (“MDH”). The Appeals Court concluded “it is not the business of the planning board to anticipate that the grant of the requisite permit by the responsible governmental body would be improvident or might not occur.” Id. at 405. That case is very different from this one however. In Hobbs Brook, the Appeals Court noted that “landowners have a common law right of access to the public ways they abut.” Id. It was therefore improper for the planning board to withhold endorsement when “the MDH is bound to grant [the permit] with reasonable conditions.” Id. at 406. Here, the roads at issue are private, not public, the Association had the authority to impose reasonable rules and regulations on their use, and the Planning Board was entitled to rely on those regulations. See McCarthy, 381 Mass. at 87-88.

Although the Rules and Regulations limited Mr. Arundale’s rights over the common roadways and bind him, I agree with his contention that the 1973 Declaration and the Amended Declaration did not. As discussed above, the original 1973 Declaration expired after thirty years pursuant to G.L. c. 184, §§ 23 and 27. On the subject of the Amended Declaration, I find it likely that Mr. Arundale did not sign it. Attorney DiOrio has never seen the signature page, nor was it produced at trial. In contrast to Mr. Arundale’s vague responses to questions about the Rules and Regulations, he was quite clear that he had never signed the Amended Declaration. Moreover, even if the Planning Board had produced Mr. Arundale’s signature assenting to the Amended Declaration, it would have no legal effect on him since Mr. Arundale never authorized it to be released from escrow. Attorney Healy’s letter and email to the homeowners that accompanied the draft of the Amended Declaration states, “By this memo, I hereby agree to hold such original signature pages in escrow, and will only release such signature pages and attach to a final Amended and Restated Declaration at such time, if any, as an individual homeowner gives me express written authorization to do so.” Without such authorization, Mr. Arundale’s signature could not bind him to the restrictions contained in the Amended Declaration.


For the foregoing reasons, Mr. Arundale’s appeal of the Planning Board’s decision to deny endorsement of his ANR plan is DISMISSED, WITH PREJUDICE.

Judgment shall enter accordingly.



[Note 1] Mr. Arundale conveyed his property in the Sweetened Water Subdivision to Louis Field Road, LLC, an entity that he controlled, by deed dated June 21, 2011. Mr. Arundale’s motion to substitute Louis Field Road, LLC as party plaintiff was allowed on November 16, 2011. Mr. Arundale died at the end of February 2012, shortly after the trial had concluded. Following his death, Louis Field Road, LLC determined that it would move forward with this litigation.

[Note 2] “ANR” is shorthand for “approval under the subdivision control law not required.”

[Note 3] The Amended and Restated Declaration of Restrictive Covenants is discussed in more detail below.

[Note 4] The terms of the escrow are discussed below.

[Note 5] The source of this belief was likely hearsay. Attorney Healy was not called as a witness so I did not have the benefit of his memory, if any. A signed document was never introduced at trial and its current location or the circumstances of its disappearance (if it ever existed) were never explained.

[Note 6] Mr. Arundale objected to Attorney DiOrio’s testimony concerning Ms. Eliot’s announcement of the proxy votes. Though my initial impression was that this might be inadmissible hearsay, I find Attorney DiOrio’s testimony regarding the vote tally and how Mr. Arundale voted admissible under the “operative words doctrine” because the testimony goes to the Planning Board’s defense of estoppel and thus has an independent legal significance. See Brodin & Avery, Massachusetts Evidence § 8.2.5 (8th ed. 2007) (“Where extrajudicial statements are offered as the basis, in whole or in part, of the cause of action or the defense, they are admissible under the so-called operative words doctrine”); see also Shimer v. Foley, Hoag, & Eliot LLP, 59 Mass. App. Ct. 302 , 309 (2003) (testimony about offer and terms of that offer were admissible precisely to establish fact that offer was made and its terms because words of the offer had independent legal significance in malpractice action to prove loss of financial benefits that would have been received if offer was accepted). The public announcement of the votes, heard by Attorney DiOrio, was the official tally and confirmation of the votes. Moreover at this point (the written proxies have presumably been disposed of in the regular course of business) it is the only remaining “official” evidence of the votes that were cast. The Planning Board also sought to admit an email from Attorney DiOrio to Attorney Healy on December 21, 2005 describing the vote as a past recollection recorded. Much of the contents of that email were admitted through Attorney DiOrio’s testimony after the document was used to refresh his recollection of the vote. Thus, admitting the email itself as a past recollection recorded is denied since that rule initially requires the witness to be unable to recall the events at issue even after being presented with a document intended to refresh his memory. See Brodin & Avery, Massachusetts Evidence § 8.10 (8th ed. 2007)

[Note 7] Although Section I(A) describes the purposes of the Association and Section II lists specific powers in furtherance of those purposes, Section IV states, “The foregoing clauses shall be construed as both purposes and powers and the enumeration of specific powers therein shall not be held to limit or restrict in any manner the general powers of the Corporation.”

[Note 8] As noted above, I find that Mr. Arundale voted his proxy in favor of the Rules and Regulations.