66 Mass. App. Ct. 654 | Mass. App. Ct. | 2006
Beth Ellen Fishman appeals from a judgment of the Land Court compelling her to remove a newly constructed bam from her property in Weston. In September, 2004, the Weston Forest and Trail Association, Inc. (WFTA), commenced an action seeking to enforce a conservation restriction (restriction) that burdens Fishman’s land. The WFTA claimed Fishman had
1. The undisputed facts. The following facts are undisputed. The WFTA is a Massachusetts nonprofit corporation organized for various purposes including the conservation of land in and around Weston. Fishman owns approximately eight acres of land located at 190 Concord Road, Weston (property), where she resides.
In 1974, the board of selectman for Weston and the Commissioner of Natural Resources
“A. Subject to powers and rights reserved under paragraph B, the Grantors . . . shall neither perform nor permit others to perform any of the following activities on said land:
“1.) Construction or placing of any buildings ... or other structures on or above the ground;
“5.) Use of said land except for agricultural, farming, or outdoor recreational purpose or purposes permitting said land to remain predominately in its natural condition;
*656 “B. The Grantors expressly reserve for themselves . . . the right to conduct or permit others ... to conduct the following activities on said land:
“1.) . . . pruning, clearing and burning necessary for the proper raising of livestock and conduct of other agricultural activities; grazing of livestock; and construction and maintenance of fences necessary in conjunction therewith.”
The stated purpose of the restriction is “to insure the preservation of [the property] in its present, predominantly natural and undeveloped condition.”
Fishman was aware that the restriction applied to her property when she acquired it in 1993, and the deed to her from the seller made specific reference to that restriction. Fishman subsequently conveyed the property to herself, Irving Fishman, and Irma M. Fishman by deed dated August 15, 1996. Six years later, in March, 2002, Irving and Irma Fishman transferred their interest in the property, by deed, back to Fishman. Both deeds included a reference to the restriction.
Between 1996 and 2002, Fishman engaged a surveyor, Everett M. Brooks Company (Brooks) to prepare plans for certain improvements on the property. Brooks prepared three plans. The first, dated June 6, 1996, depicted a proposed new dwelling within the unrestricted area of the property. Fishman applied for and received a building permit and constructed a new house in accordance with this plan. The second, dated March 1, 1999, depicted the new dwelling and a proposed bam also to be constructed within the unrestricted area. Each of these plans contained a boundary line between the restricted and the unrestricted areas of the property. The third and final plan, dated June 4, 2002 (2002 plan), placed a bam in the restricted part of the property and omitted the boundary line separating the restricted area from the unrestricted area that was present on the prior two plans. Fishman applied for and received a building permit, and in July, 2002, she began construction of the bam as shown on the 2002 plan. The bam was to be used for agricultural purposes, including the breeding, raising, and training of horses.
During construction, Weston’s conservation commission
In August, 2003, after the bam was substantially completed, the WFTA notified Fishman that the new bam was in a restricted area and demanded that the bam be relocated. At that time, Fishman had invested more than $300,000 in construction costs.
2. Discussion. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). Here, all evidentiary inferences must be resolved in favor of Fishman. See Simplex Technologies, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).
Fishman does not dispute that the bam is located within the restricted area. She contends, however, that the judge erred in granting summary judgment because the doctrines of loches and estoppel preclude the WFTA’s claim. She also argues that the restriction is ambiguous. There was no error. The judge correctly concluded that the doctrines of loches and estoppel do not apply and that the restriction is unambiguous.
a. Laches. Fishman argues that the doctrine of loches precludes the WFTA’s claim because, due to Bates’s failure to raise a timely objection to the location of the bam, the WFTA enforced the conservation restriction unduly and prejudicially late, causing her substantial economic harm. A finding of loches is possible if there is an “unjustified, unreasonable, and prejudicial delay in raising a claim.” Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45, 49 (1990). However, the doctrine of “[l]aches does not run against public rights.” Carnegie Inst. of Med. Lab. Technique, Inc. v. Approving Authy. for Schs. for Training Med. Lab. Technologists, 350 Mass. 26, 30
Fishman contends that the Land Court judge erred because the WFTA is a private entity, and because the WFTA did not seek to enforce “public rights.” Carnegie, 350 Mass. at 30. These arguments are unpersuasive.
As a threshold matter, the public or private nature of an entity is not dispositive of whether that entity is enforcing “public rights.” See Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 326 (1951); Carnegie, 350 Mass. at 30 (nonprofit entity enforcing public rights). See also Lake Michigan Fedn. v. United States Army Corps. of Engrs., 742 F. Supp. 441, 446-447, 447-448, 450 (N.D. Ill. 1990) (not applying loches against private entity seeking injunction to protect lakebed property). In passing the Conservation Restriction Act, G. L. c. 184, §§ 31-33, the Legislature recognized, and sought to protect, the public benefits of conserving land and water in their “natural, scenic or open condition” by government bodies and qualified charitable corporations or trusts. G. L. c. 184, § 31, inserted by St. 1969, c. 666, § 5.
Fishman’s attempt to distinguish “public rights” from “public
b. Estoppel. Also based on Bates’s failure to contest the construction of the bam, Fishman contends that the doctrine of estoppel precludes the WFTA’s claim because the WFTA’s inaction induced her into believing that construction of the bam was permitted. “The essential factors giving rise to an estoppel are . . . (1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission.” Turnpike Motors, Inc. v. Newbury Group, Inc., 413 Mass. 119, 123 (1992), quoting from Cleaveland v. Malden Sav. Bank, 291 Mass. 295, 297-298 (1935). Further, the detrimental reliance by the party claiming estoppel must be reasonable. Yarde Metals, Inc. v. New England Patriots Ltd. Partnership, 64 Mass. App. Ct. 656, 661-662 (2005).
Moreover, even assuming that estoppel could be a defense against the WFTA, Fishman cannot prevail because, as the judge correctly found, Fishman’s reliance on Bates’s conduct was not reasonable. Notwithstanding Fishman’s claim that she did not know that the 2002 plan placed the bam in the restricted area of the property, Fishman concedes, as she must, that she was fully aware of the restriction. As observed by the judge (and admitted to by Fishman), Fishman had two other plans (the 1996 and 1997 plans) that clearly depict the boundary between the restricted and unrestricted areas. Even though the boundary line depicted in the first two plans was not shown on the 2002 plan, a reasonable person who knew her land was subject to a conservation restriction, and who had seen the prior two plans, would have clarified the situation before building. See, e.g., O’Blenes v. Zoning Bd. of Appeals, 397 Mass. 555, 558-559
c. Ambiguity. Fishman further contends that the terms of the conservation restriction are ambiguous and can be interpreted to permit construction of a bam anywhere on her property. “A restriction, like a deed, ‘is to be construed so as to give effect to the intent of the parties as manifested by the words used, interpreted in the light of the material circumstances and pertinent facts known to them at the time it was executed.’ Walker v. Sanderson, 348 Mass. 409, 412 (1965). In addition, ‘the restriction “must be constmed beneficially, according to the apparent purpose of protection or advantage ... it was intended to secure or promote.” ’ ” Chatham Conservation Foundation, Inc. v. Farber, 56 Mass. App. Ct. 584, 590 (2002), quoting from Maddalena v. Brand, 7 Mass. App. Ct. 466, 469 (1979). The stated purpose of the restriction was “to insure the preservation of [the property] in its present, predominantly natural and undeveloped condition.” See G. L. c. 184, § 31, inserted by St. 1969, c. 666, § 5 (“conservation restriction means a right . . . appropriate to retaining land or water areas predominantly in their natural, scenic or open condition”).
The judge correctly concluded that there was no ambiguity in the conservation restriction. The restriction explicitly bans construction or placing of any buildings or structures on or above the ground. The bam is unambiguously a building or structure. See Goldmuntz v. Chilmark, 38 Mass. App. Ct. 696, 698-699 (1995) (holding, at summary judgment, that conservation restriction unambiguously prohibited building of swimming pool where restriction banned construction of structures). Although the restriction permits Fishman to prune, clear, and bum as necessary for the proper raising of livestock and conduct of other agricultural activities, nothing permits the building of a
d. Costs. The WFTA argues that it is entitled to reasonable attorney’s fees and double costs because Fishman has pursued an insubstantial and frivolous appeal. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979); G. L. c. 211A, § 15; G. L. c. 231, § 6F. We disagree. “An appeal is frivolous ‘[w]hen the law is well settled, when there can be no reasonable expectation of a reversal.’ ” Love v. Pratt, 64 Mass. App. Ct. 454, 459 (2005) (Love), quoting from Avery v. Steele, 414 Mass. 450, 455 (1993) (Avery). Sanctions for frivolousness should never be lightly imposed and should be reserved only for egregious occasions. Avery, 414 Mass. at 456.
This case is unlike Avery, supra, which involved a brief containing clear misrepresentations of law and of the opponent’s arguments. Here, there are no such misrepresentations, and although Fishman’s arguments are not persuasive, based on our review, we cannot say that the applicable law was so well settled that Fishman’s arguments are frivolous. In particular, Fishman’s estoppel and loches claims are not frivolous because the case law does not clearly establish that a private entity such as the WFTA is immune from such claims. Additionally, Fishman’s argument that she reasonably relied upon Bates’s inaction is not frivolous, despite the fact that her behavior was unreasonable. Therefore, we deny the WFTA’s request for an award of attorney’s fees and costs. See Building Inspector of Peabody v. Northeast Nursery, Inc., 418 Mass. 401, 406 (1994) (not awarding costs to appellee where appellant’s arguments were unpersuasive and unsuccessful in arguing that their nursery business constituted agriculture or horticulture). Contrast Allen v. Batchelder, 17 Mass. App. Ct. 453, 457-458 (1984) (awarding costs where 150 years of case law established that long, exclusive, uninterrupted possession of land for thirty years constitutes ouster regardless of cotenant’s lack of knowledge, yet appellant claimed that his lack of knowledge for ninety years would not constitute ouster); Britt v. Rosenberg, 40 Mass. App. Ct. 552, 553-554 (1996) (awarding fees and double costs where appellant committed numerous discovery violations and conspired to commit fraud on the court); Love, 64 Mass. App. Ct. at 457,
Judgment affirmed.
Now the Secretary of Environmental Affairs.