JOHN W. DONOGHUE vs. PRYNNWOOD CORPORATION.

CUTTER, J. Dr. Donoghue sought on December 30, 1965, [Note 1] in the Probate Court declaratory relief concerning a restrictive provision in a deed to him from Prynnwood Corporation (Prynnwood) of land (the locus) on which he has built a house. Prynnwood by its answer, amended on January 12, 1967 (see fn. 4, infra), prays that the final decree shall (1) declare the restriction enforceable, (2) permanently enjoin any construction without Prynnwood's approval, and (3) require removal of Dr. Donoghue's structure from the locus. The probate judge made somewhat incomplete findings and reserved and reported the case (G. L. c. 215, Section 13) without decision. The evidence is reported. The facts are stated upon the basis of the judge's findings and a stipulation.

Prynnwood owned land (including the locus) near a country club (the club) in Longmeadow. Development started in 1945. Thirty-seven large lots were laid out in the original plans. In 1959, eight lots were added to the development.

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All the lots have been sold. Houses have been built upon all but three lots. Prynnwood still owns some adjacent vacant land.

The deeds from Prynnwood included varying restrictions. Each deed "contained the restriction that finished plans of any proposed house had to be approved by" Prynnwood. [Note 2] In most other deeds, but not in the deed to Dr. Donoghue, there appeared a provision that Prynnwood "reserves the right to amend these restrictions from time to time and . . . the right to waive compliance with these restrictions in any instance."

The probate judge found that about May 2, 1965, Dr. Donoghue gave "Richard A. McCullough, a real estate agent, a deposit of . . . [$500] toward the purchase" of the locus. McCullough told Dr. Donoghue "that the deed would contain a restriction . . . that his plans would have to be approved by . . . [Prynnwood], and that since this lot adjoined the . . . [c]lub land, . . . [Prynnwood] preferred a one-story house on . . . [the locus] so that . . . [other] houses . . . which were two-story, would have an unimpaired view of the [c]lub."

McCullough took the deposit to Edwin S. Munson, sole stockholder and principal officer of Prynnwood and in "complete control" of its affairs. Munson was experienced in real estate matters. Dr. Donoghue had given to McCullough and McCullough gave to Munson "a rough penciled sketch of the proposed house and McCullough testified [Note 3] that he showed it to . . . Munson, but . . . Munson had no recollection of this incident." McCullough was paid a commission on the sale. The deed was executed on May 3, 1965, the balance of the purchase price was paid, and the deed was recorded.

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Dr. Donoghue employed "Elroy Weber, an architect who has won many awards for design . . . to draw plans and prepare a model of the house to be built . . .. The projected . . . cost . . . [was] at least . . . ($130,000.) . . . and the plans in substance are for a one-story, modernstyle, square-shaped, flat-roofed" house.

Munson declined to approve the plans and model primarily because he objected to the flat roof. He admitted that, "while he did not like the plans, he would . . . approve them except that some of the neighbors," friends of his, "vehemently objected to the proposed structure and he was considerate of their attitude." The judge found that "Munson's refusal to approve the plans is based in part on his personal dislike of the flat-roof design, but that he would approve . . . if the . . . neighbors withdrew their objections."

There is no uniformity of style in the houses erected in this development area. All but that on the locus are "of traditional or conventional styles, with the exception of two, which might be classified as modern." The "proposed house will not depreciate the value of any other house in the development, nor will it be detrimental to the neighborhood." When the case was heard, "there was no appreciable construction on the . . . [locus] except that a foundation had been dug and a builder's shack" had been built. [Note 4] At the date of the report, the house had "been substantially fully erected and landscaped."

1. In the circumstances, the judge's findings, justified by the evidence, do not show the existence of any common scheme (cf. Snow v. Van Dam, 291 Mass. 477, 481-487; Butler v. Haley Greystone Corp. 352 Mass. 252, 255-257), with respect to the restrictive covenant. The same considerations are here present which led this court in Patrone v. Falcone, 345 Mass. 659, 661-663, to treat a somewhat comparable

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provision in a deed (for approval of plans) as enforceable only by the grantor. [Note 5]

2. We do not interpret the restriction as imposing no objective standard whatsoever upon Prynnwood's action in giving or withholding approval of its grantee's plans or as making Prynnwood's whim and its officers' aesthetic taste binding upon Dr. Donoghue in framing plans. [Note 6] Restrictions of this type will be strictly interpreted in favor of limiting the restraint on use of the granted premises. See American Unitarian Assn. v. Minot, 185 Mass. 589, 595; Hemenway v. Bartevian, 321 Mass. 226, 229. See also Ward v. Prudential Ins. Co. 299 Mass. 559, 565.

Our cases indicate that such a restriction may be enforced if the power to do so is exercised reasonably. See Parsons v. Duryea, 261 Mass. 314, 315-317 (which dealt with a restrictive provision containing somewhat more definite standards). We think, however, that (at least in the absence of explicit language to the contrary or the specification of standards of judgment), a restriction of this type should be interpreted as requiring (cf. Nassif v. Boston & Maine R.R. 340 Mass. 557, 565) that the person whose approval is required shall decide objectively, honestly, and reasonably.

3. The trial judge's findings go far to show Munson's conduct to have been arbitrary. We give weight to the findings (a) that two other houses in the development may be "classified as modern"; (b) that the "proposed house will not . . . be detrimental to the neighborhood"; and (c) that Munson would have approved the plans except for the objections of neighbors (whose houses, so the judge found, were not depreciated in value). We note also the stipulation that Munson had not enforced similar covenants

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against others. In any event, this, we conclude, is not a case for granting mandatory equitable relief to Prynnwood. We reach this conclusion without reliance (as estopping Prynnwood to seek relief) upon any failure on Munson's part (see fn. 5) to object to the sketch of the house prior to giving the deed.

Obviously, the harm to Dr. Donoghue, if now forced to remove his costly house, would very greatly exceed any possible damage to Prynnwood, for whose benefit alone the requirement of approval is enforceable. He unwisely took certain risks in proceeding to build before obtaining Prynnwood's approval or judicial relief. His conduct, however, in the circumstances may be excusable because of Prynnwood's unreasonable refusal to approve. See fn. 4 concerning the denial of preliminary injunctive relief. In any event, his conduct does not require us to deny him the benefit of equitable considerations affecting relief, which are somewhat comparable to those recently applied by us in denying mandatory relief in Marblehead v. Deery, ante 532, 537-538. There is no basis for awarding Prynnwood monetary relief.

4. A final decree, consistent with this opinion, is to be entered in the Probate Court declaring that Prynnwood unreasonably refused to approve the plans of Dr. Donoghue's house, that such approval no longer may be required, and that Prynnwood is not to be given either injunctive relief or damages.

So ordered.