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LLC v. Housing Appeals Committee & Others.

Supreme Judicial Court of Massachusetts, Suffolk

November 13, 2017


          Heard: April 6, 2017.

         Civil action commenced in the Land Court Department on January 14, 2016. The case was heard by Robert B. Foster, J., on motions for judgment on the pleadings.

         The Supreme Judicial Court granted an application for direct appellate review.

          Daniel P. Pain for the plaintiff.

          Maura E. O'Keefe, Assistant City Solicitor (Jonah Temple, Assistant City Solicitor, also present) for zoning board of appeals of Newton & another.

          Pierce O. Cray, Assistant Attorney General, for Housing Appeals Committee.

          Paul E. Bouton, Stephen P. LaRose, & Christopher R. Minue, for Citizens' Housing and Planning Association, amicus curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. [2]

          GAZIANO, J.

         The plaintiff, 135 Wells Avenue, LLC (135 Wells), owns a 6.3-acre parcel of land in Newton (site), in an area known as Wells Avenue Office Park (property), which is zoned for limited manufacturing use. As is all of the property, the site is subject to a restrictive covenant owned by the city of Newton (city); among other things, the city's deed restriction permits only certain of the uses ordinarily allowed in a limited manufacturing zone, limits the size and setbacks of buildings, and requires that a certain portion of the land remain open space. The city also owns an abutting 30.5-acre parcel with a deed restriction requiring that it be used only for conservation, parkland, or recreational use.

         135 Wells seeks to construct a 334-unit residential rental unit complex on the site, with eighty-four of the units (twenty-five per cent) reserved as affordable housing, pursuant to G. L. c. 40B, §§ 20-23. In order to proceed with development of the project, in May, 2014, 135 Wells asked the city's board of aldermen (aldermen) to amend the deed restriction to allow a residential use at the site, and to permit construction in the nonbuild zone; the aldermen declined to modify the deed restriction. At the same time, 135 Wells applied to the city's zoning board of appeals (ZBA)[3] for a comprehensive permit to develop the mixed-income project. The ZBA denied the permit application, on the ground that it lacked authority under G. L. c. 40B, § 21, to amend the deed restriction, an interest in land held by the city. 135 Wells appealed from the ZBA's decision to the housing appeals committee of the Department of Housing and Community Development (HAC). The HAC affirmed the ZBA's decision that the ZBA lacked authority to amend the deed restriction. 135 Wells then sought judicial review of the HAC's decision, pursuant to G. L. c. 30A, in the Land Court. A judge of that court denied the motion of 135 Wells for judgment on the pleadings and allowed the defendants' cross motions; in doing so, he noted that this court had confirmed more than fifty years previously that the city's deed restriction is a valid property interest, granted to it by a private land holder, and properly recorded at the registry of deeds. See Sylvania Elec. Prods. Inc. v. Newton, 344 Mass. 428, 430 (1962) (Sylvania). The judge also concluded, as had the HAC, that Zoning Bd. of Appeals of Groton v. Housing Appeals Comm., 451 Mass. 35 (2008) (Groton) was controlling, and that the HAC does not have authority under G. L c. 40B to order the city to relinquish its property interest.

         135 Wells appealed to the Appeals Court and also sought direct appellate review; we allowed the application for direct appellate review. On appeal, 135 Wells argues that we should conclude that the negative easement is not a property interest in land; revise our holding in Groton and conclude that the HAC does have authority to modify certain types of property interests in land; or, in the alternative, determine that the purposes for which the restrictive covenant was enacted are now incapable of being attained, and, consequently, that the restrictive covenant should be declared null and void.

         We decline each of these suggestions and affirm the judge's decision granting judgment on the pleadings to the defendants.[4]

         1. Facts and prior proceedings.

         In support of their cross motions for judgment on the pleadings, the parties filed stipulations of fact, and also relied upon the facts set forth in Sylvania. The parties agreed that there were no material facts in dispute and that judgment as a matter of law was appropriate. We recite the facts based on the judge's decision and the undisputed facts in the record.

         In 1960, Sylvania Electric Products (Sylvania Electric) held an option to purchase a 180-acre parcel of land in the city on which it intended to build a manufacturing plant. Sylvania Electric petitioned the aldermen to reclassify a portion of the property from residential use to a limited manufacturing zoning district. Under the proposed arrangement, the city would obtain an option to purchase a 30.5-acre portion of the 180-acre parcel, which would be benefited by use restrictions on the remaining 153.6-acre servient estate. The aldermen approved the zoning reclassification -- rezoning the parcel from residential to limited manufacturing use -- and authorized the mayor to purchase the option to buy the 30.5-acre dominant estate.[5]

         In 1969, the city exercised its option to purchase the 30.5-acre parcel, and, on May 27, 1969, recorded the deed from Sylvania Electric's successor in interest at the registry of deeds. The deed refers to the 30.5-acre dominant estate purchased by the city as "[p]arcel 2, " and the remaining 123.1-acre servient estate as "[p]arcel 1." The deed states that the restrictions it sets forth are "appurtenant to . . . the granted premises [the city's dominant parcel 2], "[6] and "are hereby imposed on the adjoining . . . [servient] [p]arcel 1." The deed also provides that the restrictions "shall continue in force for a period of ninety-nine (99) years from December 1, 1968."[7] As described by the judge, the deed restrictions include provisions "limiting the floor area of buildings to be constructed on the premises; requiring that a percentage of the ground area be maintained in open space not occupied by buildings, parking areas or roadways; imposing setbacks, height restrictions, and a buffer zone; restricting the number and type of signs and the type of lighting; and limiting the use of buildings to certain, but not all, of the uses permitted in a limited manufacturing district." The deed further provides, "No building or structure shall be erected on said [p]arcel 1, or on any one subparcel or group of subparcels constituting [p]arcel 1, without the prior approval of the . . . [a]ldermen with respect to the following specific items: finished grading and topography, drainage, parking, and landscaping."

         Sylvania Electric ultimately decided not to locate its plant in the city. From 1971 to 2014, a number of entities purchased portions of parcel 1 from successor private owners. Some of these purchasers sought amendments to the deed restrictions from the aldermen, as the elected representatives of the city, to permit uses other than the explicitly authorized subset of limited manufacturing uses allowed in the deed restrictions. During that time, the aldermen approved approximately twenty amendments to the deed restrictions, allowing uses such as a retail store and food service area, secular and religious schools, medical offices and a physical rehabilitation center, tennis courts, a health club, a dance school, a gymnastics academy, a day care center, a "bouncy house, " and a skating rink. None of these amendments authorized a modification for residential development.

         In 2014, 135 Wells purchased a 6.3-acre subparcel of parcel 1; at the time of purchase, the parcel was located in a limited manufacturing zoning district and was subject to the restrictive covenant, which, among other things, precluded any residential use. In May, 2014, 135 Wells sought a modification, waiver, or release of the deed restriction from the aldermen, to permit a residential use and to allow development in the no-build zone. It also filed an application with the ZBA for a comprehensive permit under G. L. c. 40B to build a 334-unit residential rental complex, with eighty-four of those units to be affordable housing. In its G. L. c. 40B application, 135 Wells requested that the ZBA "waive" the deed restrictions and permit this residential use. In November, 2014, the aldermen denied the petition for an amendment to the deed restrictions. In January, 2015, the ZBA ruled that it lacked authority under G. L. c. 40B to waive or modify the deed restrictions.

         135 Wells appealed to the HAC. The HAC determined after a hearing that "the deed restriction conveyed to the [c]ity . . . is not a requirement or regulation for the purposes of G. L. c. 4OB, § 20, and the waiver or amendment sought by the developer is not a permit or approval under G. L. c. 40B, § 21." Accordingly, the HAC affirmed the ZBA's determination that it lacked authority to amend the deed restriction.

         In January, 2016, 135 Wells sought review of the HAC's decision in the Land Court, pursuant to G. L. c. 30A, § 14. It argued, first, that G. L. c. 40B provided the ZBA the authority to allow the requested amendment; second, that the aldermen's actions in allowing the amendments to the deed restrictions were functionally equivalent to the permitting decisions issued by the ZBA, and should be recognized as such rather than as modifications of interests in land; and, third, that the existing uses of the parcel and its condition were so drastically different from what ...

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