Rosenfeld v. Zoning Board of Appeals of Mendon

Mass. Appeals Court, 78 Mass. App. Ct. 677, Jan. 28, 2011: Court held for the first time that an abutter has standing to seek enforcement of a deed restriction that does not refer to the abutter’s land or identify it as a benefited parcel.

The restriction, which ran with the land, was granted as a condition to obtain a zoning variance for the restricted parcel. The owner of the restricted parcel later sought a zoning special permit to construct various structures related to stabling horses, which would not have been allowed under the restriction. The special permit was eventually granted on the basis of state law protections of the proposed use as commercial agriculture (MGL c. 40A, sec. 3). The owner of an abutting parcel then appealed the permit grant and sought to enforce the deed restriction. A Superior Court judge upheld the permit and found the abutter lacked standing to ask for enforcement of the restriction. The Appeals Court upheld the permit, finding that it was justified by the provisions of state law, but said the abutter has standing regarding the restriction.

Interpreting an ambiguity in the relevant restriction statute (MGL c. 184, sec. 27(a)(2)), the Court held that “an owner of land that adjoins the restricted land is entitled to enforce a deed restriction, whether or not the instrument imposing the restriction contains an express statement that the adjoining land is intended to benefit from the restriction.” The building restriction in question was not a conservation restriction or preservation restriction (conservation easement or preservation easement) enforceable in perpetuity under MA law (MGL c. 184, sec. 31-33) , and the decision does not apply to such restrictions.

The statute reads in part, “No restriction imposed after [December 31, 1961] shall be enforceable: (a) unless the person seeking enforcement (1) is a party to the instrument imposing the restriction and it is stated to be for his benefit or is entitled to such benefit as a successor to such party, or (2) is an owner of an interest in benefited land which either adjoins the subject parcel at the time enforcement is sought or is described in the instrument imposing the restriction and is stated therein to be benefited….”

The Court found support in: (a) the grammatical structure of the statute (that “stated therein to be benefited” applies only to “benefited land… described in the instrument imposing the restriction” and not to adjoining land), (b) the statute’s limited application to the adjoining parcel as configured “at the time enforcement is sought” (rather than as it was configured when the restriction was imposed), (c) the theory the if the statute were read to require an adjoining parcel to be the subject of a statement of intended benefit, some description of the adjoining parcel would necessarily be required, thereby rendering “superfluous the language in the statute referring to an adjoining parcel separately from land that is described in the instrument imposing the restriction”, and (d) in the Court’s reading of legislative history.

The decision is available at

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