This is an appeal from a decision of the Appellate Tax Board, which affirmed the refusal of the board of assessors of Medfield (board) to abate the tax assessed on real estate owned by Ellen L. Parkinson. We conclude that the conservation easement granted by Parkinson, which placed substantial restrictions on the future development of her land, was invalid and unenforceable. Consequently, the board correctly refused to consider those restrictions when it assessed the value of her property.
Ellen L. Parkinson was the owner of three parcels of land, totalling 82.17 acres, in Medfield. The largest of these parcels is over seventy-six acres, and contains a single family dwelling, an attached two-car garage, and a bam. On June 16,1980, pur
It was the policy of the board “to assess land properly subject to a conservation easement or restriction at no more than 25% of full and fair cash value.” 2 Nonetheless, when the board assessed Parkinson’s real estate in fiscal 1982 and 1983 at $317,300 and $346,700, respectively, it refused to discount the value of her property. Instead, the board claimed that the conservation easement was invalid because it purported to apply not only to land, but also to Parkinson’s residence and outbuildings.
Parkinson paid her taxes in full, and then filed timely applications for abatement on assessments for both years. The board
The Appellate Tax Board concluded that G. L. c. 184, § 31, did not authorize a conservation easement to be placed on dwellings and appurtenant buildings, and thus affirmed the denial of the applications for abatement. Parkinson then appealed to this court. She claims that nothing in the language of G. L. c. 184, § 31, prohibits the kind of easement at issue here, and thus that the board erred in refusing to consider the easement when it assessed the premises. We conclude that the easement is invalid, not because it is prohibited by statute, but because its terms are so vague that it precludes any meaningful identification of the servient estate.
“While no particular words are necessary for the grant of an easement, the instrument must identify with reasonable certainty the easement created and the dominant and servient tenements.”
Dunlap Investors, Ltd.
v.
Hogan,
The board’s inability to assess the property in light of the conservation easement is symptomatic of the easement’s fatal ambiguity. The use of a single family residence, along with the “usual” outbuildings and structures, was excepted from the restrictions set forth in the instrument. According to the decision of the Appellate Tax Board, the appraiser who testified on behalf of Parkinson stated that such use would require “about” seven acres of land surrounding the house. Therefore, Parkinson contends that the assessors should have made separate assessments of the seven-acre parcel and of all the remaining land.
There is nothing in the record which supports the apparently arbitrary determination that seven acres of land were required for the use of Parkinson’s house, and thus ought to be excepted from the restrictions set forth in the easement. One-half acre would probably be sufficient for some, while others would doubtless prefer substantially more. In short, the size of the servient estate depends wholly on one’s estimate of the amount of property required for the use of the house. Moreover, as the board recognized, the easement would allow the use of one single family residence anywhere on the property. Accordingly, the instrument creates a roving exception to the easement’s development restrictions, which, if the current residence were destroyed, could be placed anywhere on Parkinson’s land. Therefore, the easement fails because it inadequately describes not only the size, but also the location, of the land subject to its restrictions. See 4 H. Tiffany, Real Property § 997, at 229 (3d ed. 1975).
Parkinson contends that the legislative scheme anticipates that the grantors of conservation easements may remain in residence on the subject property. See Forty-second Report of the Judicial Council, Pub. Doc. No. 144, at 89 (Dec. 1966). We conclude that in order to do this, grantors are required to identify a parcel of land, separate from the house, which is subject to the development restrictions. This conclusion is
So ordered.
Notes
By an instrument dated April 9,1981, Parkinson conveyed to the trustees “all of her right, title and interest” in the premises, reserving to herself a life estate, and stating that the conveyance was subject to the conservation easement granted in 1980. In light of our conclusion with respect to the ambiguity of the easement, we need not consider the board’s further contention that this conveyance, under the doctrine of merger, extinguished the easement. See generally Restatement of Property §§ 497-499 (1944).
General Laws c. 59, § 11 (1984 ed.) provides that any land subject to a conservation easement under G. L. c. 184, § 31, “shall be assessed as a separate parcel” of real estate.