Civil action commenced in the Superior
Court Department on May 4, 2016.
The case was heard by Kenneth W. Salinger,
J.
Emily Kanstroom Musgrave for the
plaintiff.
Jason W. Morgan for the defendant.
Christopher A. Klem, Lillian F.
McCullough, & Heather M. Romero, for Massachusetts Audubon Society &
another, amici curiae, submitted a brief.
NEYMAN, J.
In this case, we interpret a conservation restriction (restriction)
voluntarily placed on a parcel of real property owned by the defendant, Cedar
Hill Retreat Center, Inc. (Cedar Hill).
The plaintiff, Wildlands Trust of Southeastern Massachusetts, Inc.
(Wildlands Trust), contends that a Superior Court judge incorrectly construed
certain provisions of the restriction, and that, as a result, the judge erred in
determining that Cedar Hill did not violate the restriction. We agree that the judge's interpretation of
one provision of the restriction was inconsistent with its plain meaning. However, we affirm the judgment because we
agree with the judge that Wildlands Trust did not prove that Cedar Hill
committed a breach of the restriction as properly construed.[2], [3]
Background. In 1969, the Massachusetts Legislature
enacted the Conservation Restriction Act, G. L. c. 184,
§§ 31-33, which created a framework to protect conservation lands,
historic properties, and agricultural lands through the use of what are
essentially negative easements. The
grantor of a conservation restriction voluntarily restricts the use of its
land. See, e.g., Goldmuntz v. Chilmark,
38 Mass. App. Ct. 696, 697-698 (1995).
The grantor maintains possession but grants a nonpossessory interest in
the property to a holder -- generally a government entity or charitable
organization -- which agrees to protect the natural aspects of the property. See G. L. c. 184, § 32. In this manner, c. 184 furthers "the
public benefits of conserving land and water in their 'natural, scenic or open
condition.'" Weston Forest &
Trail Ass'n v. Fishman, 66 Mass. App. Ct. 654, 658 (2006), quoting G. L.
c. 184, § 31. The creation of
a permanent conservation restriction requires government approval, including by
the Secretary of Energy and Environmental Affairs, who must determine that the
restriction is in the public interest.
See generally G. L. c. 184, §§ 32-33. Conservation restrictions have become a
popular tool for land conservation in the Commonwealth. There was evidence at trial that conservation
restrictions currently protect more than 4,000 properties in
Massachusetts.
1.
The premises.[4] One such property is the approximately twelve-acre
parcel on the shores of Duxbury Bay in Duxbury that is the subject of this
litigation. The premises is
predominantly undeveloped coastal habitat, but it also contains two residential
buildings, a small storage shed, an unpaved driveway, and an unpaved path to
the beach. The Ballou Channing District
of the Unitarian Universalist Association (Ballou Channing), a religious
organization, acquired the premises in the 1980s and used it for retreats and
educational programs for approximately thirty years. In 2008, John and Cynthia Reed, who own an
abutting parcel, paid Ballou Channing $3 million to secure a conservation
restriction protecting the premises. The
Reeds appreciated living next to undeveloped land and wanted to ensure that the
premises "would not be developed or used in a way that would disturb their
own peace and quiet." In 2009,
Ballou Channing created Cedar Hill and transferred ownership of the premises to
it, subject to the restriction. Today, Cedar
Hill operates the premises, in part, as a retreat center, renting the buildings
to companies, families, and other groups for a fee.
Wildlands Trust helped the Reeds negotiate
and obtain the restriction, agreed to assume responsibility for monitoring and
enforcing the terms of the restriction, and is a signatory to the
restriction. Wildlands Trust is a
regional land trust that works to preserve and protect native habitats,
farmland, and areas of scenic value in southeastern Massachusetts. It oversees approximately 260 properties,
encompassing more than 8,500 acres of protected land. It monitors properties through annual visits
and notifies the landowner if it believes there are violations of the
restriction applicable to a particular property.
2.
The conservation restriction. The
restriction, which was recorded in the Plymouth County registry of deeds on
October 24, 2008, states in section II[5] that its purpose is to
"protect[], preserve[] and conserve[] in perpetuity [the] predominately natural, scenic, wooded and
open space condition [of the Premises] . . . [,] the bird,
plant, and wildlife populations on the Premises, and . . . the
aesthetic and ecological condition of the Premises," while also "permitt[ing]
uses described" in section III.B of the restriction.
To achieve its purpose, the restriction
further states that the restriction will "prevent those activities that
would materially impair or harm the Premises or conservation interests that are
the subject of this Conservation Restriction." It then enumerates certain permitted and
prohibited uses. As relevant here, the
restriction, at section III.B.1, permits the premises's use "for the quiet
enjoyment of nature for religious, aesthetic, non-motorized/passive recreation,
scientific and/or educational purposes."
Section III.B.2 states that "[t]he Premises may be used for
research and programs of study in the fields relating to religion, geology,
conservation, and nature." Section
III.B.3 permits the premises's use "for classes, conferences, and
retreats, all consistent with the Purposes set forth in Section II,"
discussed supra, and allows for the collection of fees "in connection with
such activities." Section III.B.3
is the only provision in the restriction that permits charging a fee for use of
the premises.
Section IV of the restriction makes
available to Wildlands Trust certain legal remedies, including a provision
authorizing Wildlands Trust to equitably enforce the restriction. That provision also sets forth a procedure
for addressing alleged violations of the restriction. Specifically, section IV.A of the restriction
states:
"[Wildlands
Trust] shall immediately notify [Cedar Hill] in writing of the nature of the
alleged violation if [Wildlands Trust] finds what it believes is a
violation. Upon receipt of this written
notice, [Cedar Hill] shall either (a) immediately cease the activity
constituting the violation and promptly restore the [premises] to its condition
prior to the violation to the satisfaction of [Wildlands Trust], or (b)
immediately cease the activity and provide a written explanation to [Wildlands
Trust] of the reason why the alleged violation should be permitted."
The restriction also contains, at section
IV.E, an antiwaiver clause, which states that "[a]ny election"
Wildlands Trust makes "as to the manner and timing of its right to enforce
th[e] Conservation Restriction . . . shall not be deemed or construed
to be a waiver of such rights."
Section IV.F of the restriction is a
dispute resolution provision that authorizes either party to call a meeting at
any time "for the purpose of resolving disputes or problems arising under
this Conservation Restriction."
This provision also requires the parties to "make every reasonable
effort to resolve problems or disputes to the satisfaction of both
parties." Finally, the provision
requires the parties, "prior to pursuing other available remedies,"
to attempt to negotiate any dispute "directly with each other" and,
"[i]f negotiation is unsuccessful," to participate in mediation.
3.
The parties' dispute. Shortly
after Ballou Channing transferred the premises to Cedar Hill, Wildlands Trust
became concerned that Cedar Hill authorized retreats on the premises that
violated the restriction. Wildlands Trust
initially claimed that Cedar Hill could host only retreats that had a religious
or charitable purpose. In other words,
Wildlands Trust viewed family and business rentals as prohibited. Wildlands Trust also viewed overnight stays
as prohibited. Over time, Wildlands
Trust moderated its position. Its
complaint and amended complaint alleged that the restriction did not bar
retreat rentals that promoted the preservation, protection, or study of the
premises. At trial, Wildlands Trust
focused on what it perceived as the overuse of the premises, contending that
Cedar Hill was "in effect using the [premises] as a commercial hotel or
resort," exposing the premises to damage from excessive foot and vehicle
traffic.[6]
Beginning in 2010, Wildlands Trust sent
Cedar Hill a number of letters and e-mails and arranged meetings to discuss the
perceived violations. Cedar Hill
acknowledged that it had notice of some of Wildlands Trust's concerns. Nonetheless, Cedar Hill continued to rent the
premises to families and businesses.[7]
4.
Superior Court proceedings. On
May 4, 2016, Wildlands Trust filed a five-count complaint against Cedar Hill in
the Superior Court. A judge allowed
Cedar Hill's motion to dismiss four of the counts, leaving only Wildlands
Trust's claim for breach of the restriction.[8] On June 8, 2017, Wildlands
Trust filed an amended complaint. A
judge again partially allowed Cedar Hill's motion to dismiss, again leaving
only Wildlands Trust's claim for breach of the restriction.
Following discovery, Wildlands Trust filed
a motion for summary judgment. In his
summary judgment decision, the judge[9] interpreted certain provisions of the
restriction. The case then proceeded to
a bench trial on Wildlands Trust's sole remaining claim against Cedar Hill, the
alleged breach of the restriction. After
trial, the judge issued comprehensive findings of facts and rulings of law,
which incorporated his interpretation of the restriction from his earlier
summary judgment decision. In
particular, the judge ruled that the restriction "allows classes,
conferences or retreats [that], at least in material []part, involve or promote
the preservation, protection, study, or quiet enjoyment of the bird, plant, and
wildlife population, or the aesthetic or ecological condition of the [premises]
without materially . . . impairing any of these conservation
interests." Based upon this
interpretation of the restriction, the judge determined that Cedar Hill's rental
of the premises to businesses and families did not violate the restriction
because, inter alia, the renters enjoyed the premises's natural features and
views during their stays.
The judge also found that Wildlands Trust
had failed to give prompt written notice of certain violations and to make
reasonable efforts to resolve disputes concerning alleged violations, thereby
waiving its right to bring a lawsuit as to those violations. Finally, the judge found that Cedar Hill's
decision to continue renting the premises to families and businesses until the
parties resolved the dispute did not constitute a material breach of the
dispute resolution provisions of the restriction. The judge found that any such violation was
"technical" and "immaterial." The judge explained:
"[t]o rule
otherwise would be to give Wildlands Trust unilateral power to alter the terms
of the . . . restriction. It
would mean that Wildlands Trust could issue a written notice of violation based
on a mistaken or even, in theory, a purely fanciful reading of the
. . . restriction and that Cedar Hill would have to give up its
actual rights under the . . . restriction by immediately ceasing that
use of the [premises] until it could complete the dispute resolution procedure,
file a civil action, and obtain a declaratory judgment that the use was
permitted under the . . . restriction."
In sum, the judge
found that Cedar Hill had not committed a material breach of any provision of
the restriction. A final judgment, (1)
declaring the allowed and prohibited uses under the restriction, and (2) ordering
that Wildlands Trust was not entitled to recover damages or attorney's fees, or
to obtain any permanent injunctive relief against Cedar Hill, entered in Cedar
Hill's favor on April 2, 2019. Wildlands
Trust now appeals from that judgment.
Discussion. Wildlands Trust argues that the judge erred
in his interpretation of the restriction.
Wildlands Trust also contends that the judge failed to give effect to
the restriction's antiwaiver provisions, misinterpreted the cease and desist
provision of the restriction, and failed to place the burden at trial on Cedar
Hill to prove that the activities on the premises did not violate the
restriction. We affirm the judgment
because the judge did not err in determining that Wildlands Trust did not prove
that Cedar Hill committed a breach of the restriction as properly construed.
In reviewing the judge's decision, we
accept his findings of fact unless they are clearly erroneous. See Haskell v. Versyss Liquidating Trust, 75
Mass. App. Ct. 120, 125 (2009). However,
the judge's interpretation of the meaning of the restriction's terms and
provisions is a question of law. See
Sullivan v. O'Connor, 81 Mass. App. Ct. 200, 204–205 (2012). See also Weston Forest & Trail Ass'n, 66
Mass. App. Ct. at 661 (conservation restrictions interpreted like deeds). We review the judge's conclusions of law de
novo. Casavant v. Norwegian Cruise Line,
Ltd., 460 Mass. 500, 503 (2011).
1.
Breach of restriction. Wildlands
Trust's primary argument on appeal is that the judge incorrectly interpreted
section III.B.3 of the restriction, which specifies the classes, conferences,
and retreats that may be held on the premises in exchange for a fee. Although conservation restrictions have some
unique features, they are interpreted in the same manner as other recorded
instruments. See Weston Forest &
Trail Ass'n, 66 Mass. App. Ct. at 661.
The judge must "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 [the parties] at the time it was
executed" (citation omitted).
Chatham Conservation Found., Inc. v. Farber, 56 Mass. App. Ct. 584, 590
(2002). See Weston Forest & Trail
Ass'n, supra. Given their conservation
purposes, restrictions "must be construed beneficially, according to the
apparent purpose of protection or advantage . . . [each] was intended
to secure or promote" (citation omitted).
Maddalena v. Brand, 7 Mass. App. Ct. 466, 469 (1979). See Parkinson v. Board of Assessors of
Medfield, 398 Mass. 112, 113 n.1 (1986).
This does not mean, however, that a restriction should be read in a
manner that is inconsistent with the plain meaning of its language. See Goldmuntz, 38 Mass. App. Ct. at 699. "[A]s with any contract, we 'must
construe all words that are plain and free from ambiguity according to their
usual and ordinary sense.'" Boston
Redev. Auth. v. Pham, 88 Mass. App. Ct. 713, 717-718 (2015), quoting Suffolk
Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999).
We now apply these principles to the
restriction at issue. Section III.B.3
states that "[t]he Premises may be used for classes, conferences, and
retreats, all consistent with the Purposes set forth in Section II." Section II of the restriction describes its
purpose, which is to "protect[], preserve[] and conserve[] in perpetuity
[the] predominately natural, scenic, wooded and open space condition [of the
Premises]," as well as the "bird, plant and wildlife populations"
and "the aesthetic and ecological condition of the Premises." Section II further states, inter alia, that
the restriction is intended to "prevent those activities that would
materially impair or harm the Premises or conservation interests that are the
subject of this . . . Restriction, or in any manner conflict with the
maintenance of the Premises in its existing natural, scenic, wooded, open space
condition." In other words, the
purpose of the restriction is to preserve the land in its natural state, and
"[i]nherent" in that purpose "are environmental
concerns." Chatham Conservation
Found., Inc., 56 Mass. App. Ct. at 590.
Construing section III.B.3 according to its plain meaning and consistent
with the conservation purposes of the restriction, Cedar Hill is permitted to rent
the premises for classes, conferences, and retreats provided that they do not
materially impair or harm the wildlife, aesthetics, or ecology of the premises
or alter its natural, scenic, wooded, and open space condition. It thus follows that classes, conferences,
and retreats that would materially impair or harm these conservation concerns
are prohibited.
Here, the judge conflated section III.B.3
with unrelated language from section III.B.1, which permits the use of the
premises "for the quiet enjoyment of nature" under certain
circumstances. Section III.B.3 permits
rental of the premises for classes, conferences, and retreats for purposes
consistent with section II, but not for quiet enjoyment. We attach meaning to the different language
in sections III.B.3 and III.B.1. See
MacDonald v. Hawker, 11 Mass. App. Ct. 869, 872-873 (1981), quoting Crimmins
& Peirce Co. v. Kidder Peabody Acceptance Corp., 282 Mass. 367, 375 (1933)
("we bear in mind that '[i]t is to be presumed that parties employ all the
provisions and phrases of a written contract with the purpose that each has an
appropriate meaning. In interpreting
contracts every word is to be given force so far as practicable'"). See also Whitecap Int'l Seafood Exporters,
Inc. v. Eastern Ins. Group, LLC, 97 Mass. App. Ct. 578, 586 n.10 (2020). If the parties had intended to allow Cedar
Hill to charge fees for classes, conferences, and retreats to those who wished
to quietly enjoy the premises, they could have crafted language that so
provided. Instead, the restriction as
written authorizes fees only for classes, conferences, and retreats that are
consistent with the conservation purposes of the restriction.[10]
We nonetheless affirm the judge's finding
that Cedar Hill's retreat rentals did not constitute a breach of the
restriction. Wildlands Trust's argument
to the contrary rests on a narrow reading of section III.B.1 that would limit
retreat rentals to those that affirmatively promote conservation. That interpretation ignores the restriction's
plain language and stated intent. As
discussed, section II states as one of the restriction's purposes the intention
that the restriction "will prevent any use of the Premises other than for
the intention mentioned above or the permitted uses described in Section
[III.B] below," as long as such uses do not include "activities that
would materially impair or harm the Premises or conservation interests that are
the subject of this . . . Restriction, or in any manner conflict with
the maintenance of the Premises in its existing natural, scenic, wooded, open
space condition." (Emphasis added.)
Neither this language nor any other provision dictates, as Wildlands
Trust claims, that "such uses are allowed only if they are focused on
'preserv[ing] and protect[ing]' the land."
Under the proper interpretation of the
restriction, the evidence at trial did not show that the retreats held at the
premises were inconsistent with the "[p]urposes set forth in Section
II" of the restriction.
Specifically, the evidence did not show that any retreat or conduct at
any retreat was inconsistent with the protection, preservation, and
conservation in perpetuity of the premises "in its predominately natural,
scenic, wooded and open space condition."
The evidence likewise did not show that the retreats or conduct at any
retreat was inconsistent with the preservation or protection in perpetuity of
"the bird, plant and wildlife populations on the Premises, and
. . . the aesthetic and ecological condition of the
Premises." Indeed, much of the
evidence was to the contrary.[11]
Although there is a measure of
persuasiveness to Wildlands Trust's argument that the sheer number of retreat
rentals Cedar Hills hosts each year threatens to negatively impact the
premises, or is inconsistent with the purposes of the restriction, the evidence
at trial did not establish such harms from such use. Instead, Wildlands Trust focused at trial on
the nature of the rentals and their lack of any charitable or conservation
purpose. That evidence did not establish
that Cedar Hills overused the premises such that it "materially impair[ed]
or harm[ed]" the wildlife or aesthetic and ecological condition of the
premises, or altered its "predominately natural, scenic, wooded and open space
condition." Accordingly, the judge
did not err in determining that Cedar Hill's use of the premises for family or
business retreats did not constitute a breach of the restriction.
2.
Waiver. Wildlands Trust argues
that the judge erred when he found that it had waived its right to challenge
retreat rentals that occurred before 2016 because (1) the defense of waiver is
inapplicable to claims advancing public rights, and (2) the judge ignored the
antiwaiver provision in the restriction.
Here, even assuming that the judge erred in concluding that Wildlands
Trust had "waived" some of its claims, we do not vacate the judgment
because we agree with the judge's alternative holding that none of the pre-2016
rentals constituted a breach of the restriction. Wildlands Trust's claims relating to pre-2016
rentals depend upon its narrow reading of the restriction, a reading we reject,
supra. Because the restriction permits
overnight retreat rentals to business and family groups, Wildlands Trust cannot
prevail on the merits of its claims related to pre-2016 rentals, even if it had
not "waived" them.[12]
3.
Cease and desist provision.
Wildlands Trust also argues that the judge erred when he found that
Cedar Hill's decision to continue to use the premises for overnight retreats,
pending resolution of the parties' dispute, did not constitute a material
breach of the restriction. According to
Wildlands Trust, the judge's "interpretation nullifies a key provision in
the Restriction."
By its plain language, section IV.A of the
restriction requires that, upon receipt of a violation notice, Cedar Hill must
"immediately cease the activity constituting the violation" and
either (1) "promptly restore the [premises] to its [prior] condition"
or (2) "provide a written explanation to [Wildlands Trust] of the reason
why the alleged violation should be permitted." We disagree with the claim that the judge's
interpretation of the "immediately cease" language of section IV.A
rendered the provision a nullity. The
judge explicitly focused his analysis of the cease and desist provision on
"past violations that are asserted in this suit by Wildlands Trust,"
rather than future violations.[13] Contrary to Wildlands Trust's claim, nothing
in the judge's decision prevents Wildlands Trust from enforcing the cease and
desist provision going forward. Should
Cedar Hill violate the restriction in the future and fail to immediately cease
the challenged use, Wildlands Trust has the ability to seek a preliminary
injunction or other immediate equitable relief.
See, e.g., Smith v. Westfield, 478 Mass. 49, 53 (2017) (judge granted
preliminary injunction preserving land as playground pending decision whether
city could convert land to school). See
also G. L. c. 184, § 32 (conservation "restriction may be enforced by
injunction or other proceeding").
We note that the record before us does not reflect that Wildlands Trust
sought an immediate preliminary injunction or emergency equitable relief,
further underscoring that the judge's analysis does not apply to situations
where Wildlands Trust is seeking equitable relief before there has been a
decision on the merits of any claim for an alleged violation of the
restriction.[14]
Even assuming, arguendo, that Cedar Hill's
failure to cease its alleged violations during the pendency of the parties'
dispute violated the restriction, Wildlands Trust cannot prevail on its claim
for breach of section III of the restriction, because Cedar Hill's use of the
premises for retreats was found to be a permitted use. The record reflects that Wildlands Trust did
not establish material impairment or harm to the premises due to unpermitted
use during the pendency of the dispute, and Wildlands Trust cannot establish
the damages element of its claim for breach of the restriction. See, e.g., Bulwer v. Mount Auburn Hosp., 473
Mass. 672, 690 (2016) ("To prevail on a claim for breach of contract, a
plaintiff must demonstrate [inter alia] that . . . the plaintiff
suffered harm as a result [of the breach]").[15]
4.
Burden of proof. Wildlands Trust
argues that the judge misallocated the burden of proof at trial. Specifically, it contends that the judge
should have placed the burden on Cedar Hill to prove that its use of the
premises was a permitted use under the terms of the restriction. This argument is waived.
To preserve a claimed error for appellate
review, a party must make "a specific objection on point" before the
trial judge. Matsuyama v. Birnbaum, 452
Mass. 1, 35 (2008). The objection
"must be made sufficiently timely so that the judge can reflect upon the
objection and correct [any] mistake."
Anderson-Mole v. University of Mass., 49 Mass. App. Ct. 723, 726
(2000). Here, Wildlands Trust did not
timely raise any concerns about the judge's allocation of the burden of proof
until after the judge announced his findings of fact and conclusions of law.[16]
Conclusion. We conclude that none of Wildlands Trust's
arguments warrant reversal. The case is
remanded for the modification of the judgment consistent with this opinion, and
as so modified, the judgment is affirmed.
So ordered.
footnotes
[1] Wildlands Trust of Southeastern
Massachusetts, Inc., has changed its name to Wildlands Trust, Inc. Consistent with our practice, we use the
entity name that appears in the amended complaint.
[2] As discussed below, Wildlands Trust
did not preserve for appeal its claim that the judge erred in placing the
burden of proof on it at trial.
[3] We acknowledge the amicus brief
submitted by the Massachusetts Audubon Society and the Massachusetts Land Trust
Coalition.
[4] We refer to the real property at issue
in this litigation as the premises, consistent with the terminology used in the
restriction.
[5] Section II of the restriction,
captioned "PURPOSE," states, in relevant part:
"Grantor
intends that this Conservation Restriction will assure that, while permitting
uses described in Section [III.B} below, the Premises will be protected,
preserved and conserved in perpetuity in its predominately natural, scenic,
wooded and open space condition. Grantor
intends that this Conservation Restriction will preserve and protect in
perpetuity (i) the bird, plant and wildlife populations on the Premises, and
(ii) the aesthetic and ecological condition of the Premises. Grantor also further intends that this
Conservation Restriction will prevent any use of the Premises other than for
the intention mentioned above or the permitted uses described in Section
[III.B]. below. Grantor additionally
intends that this C[onservation ]R[estriction] will prevent those activities
that would materially impair or harm the Premises or conservation interests
that are the subject of this Conservation Restriction, or in any manner
conflict with the maintenance of the Premises in its existing natural, scenic,
wooded, open space condition."
[6] Although Wildlands Trust framed much
of its trial argument in terms of overuse, its president and executive director
testified throughout trial to the earlier claim that the restriction prohibits
all overnight rentals of the premises, and prohibits day retreats unless the
use was "religious or charitable."
[7] At various times, Wildlands Trust
raised concerns about other issues, including improperly parked cars,
improvements to the buildings on the premises, and the cutting of trees. The judge determined that the parties
resolved those concerns before trial. In
any event, Wildlands Trust does not press these issues on appeal.
[8] Wildlands Trust's amended complaint also
named Ballou Channing as a defendant.
Wildlands Trust eventually settled its claims against Ballou
Channing.
[9] The judge presiding over the summary
judgment motion and the trial was not the same judge who heard and decided the
motion to dismiss the amended complaint.
[10] The judge incorrectly stated in his
findings that "the conservation restriction allows Cedar Hill to charge
fees for classes, conferences, or retreats that, at least in material part,
involve the quiet enjoyment of the aesthetic or ecological condition of the
property and that are consistent with the purposes that are laid out in the
conservation restriction." The
judge then declared in the judgment that the restriction "allows classes,
conferences, or retreats . . . that at least in material part involve
or promote the preservation, protection, study, or quiet enjoyment of the bird,
plant, and wildlife populations or the aesthetic or ecological condition of the
Premises, without materially impairing any of these conservation
interests."
[11] Although we discern no ambiguity in
the terms of the restriction, to the extent any terms may be equivocal, we note
that Wildlands Trust's interpretation of the restriction also ignores the
evidence of the circumstances surrounding its execution. See Winchester Gables, Inc. v. Host Marriott
Corp., 70 Mass. App. Ct. 585, 591 (2007) ("[W]here a contract is so
expressed as to leave its meaning obscure, uncertain or doubtful, evidence of
the circumstances and conditions under which it was entered into are
admissible, not to contradict, enlarge or vary its terms by parol, but for the
purpose of ascertaining the true meaning of its language as used by the
parties" [citation omitted]). When
the restriction was being negotiated, all parties were aware that Ballou
Channing had been using the premises for retreats. That retreats are one of the restriction's
few categories of permitted uses suggests that the parties wanted to preserve
the ability of Ballou Channing and its successors to host such retreats. The conservation purposes of the restriction
were thus protected by prohibiting retreats to the extent they impaired the
purpose of the restriction.
[12] We note that equitable defenses such
as waiver may not be available in actions of this kind because holders of
conservation restrictions file suit to protect a public, not private,
right. See Weston Forest & Trail
Ass'n, 66 Mass. App. Ct. at 657-660 (laches and estoppel inapplicable to claims
by grantee enforcing conservation restriction because restriction protects
public benefit). Assuming a waiver
defense is available, the better approach in the context of analyzing a
conservation restriction is for a judge to consider what impact, if any, the
restriction's antiwaiver clause had on his analysis, prior to making a finding
of waiver. We further note that
"[u]nder the common law of contracts, waiver is the 'intentional
relinquishment of a known right'" (citation omitted). BourgeoisWhite, LLP v. Sterling Lion, LLC, 91
Mass. App. Ct. 114, 119 (2017).
"Waiver may occur by an express and affirmative act, or may be
inferred by a party's conduct, where the conduct is 'consistent with and
indicative of an intent to relinquish voluntarily a particular right [such]
that no other reasonable explanation of [the] conduct is possible.'" KACT, Inc. v. Rubin, 62 Mass. App. Ct. 689,
695 (2004), quoting Attorney Gen. v. Industrial Nat'l Bank, 380 Mass. 533, 536
n.4 (1980). Whether a party has waived a
provision of a contract -- either expressly or implicitly -- is a question of
fact. See M.J.G. Props., Inc. v. Hurley,
27 Mass. App. Ct. 250, 252 (1989). While
an antiwaiver clause is not dispositive, fact finders must decide the question
of waiver "in light of all the circumstances, including the existence of
the antiwaiver clause." Id. See Corcoran Mgt. Co. v. Withers, 24 Mass.
App. Ct. 736, 745-746 (1987) (noting that antiwaiver provision was "very
important" to trial judge's waiver analysis).
[13] As to the alleged past violations, we
recognize the judge's concern that Wildlands Trust's proffered interpretation
of the cease and desist provision was untenable because "[i]t would mean
that Wildlands Trust could issue a written notice of violation based on
. . . a purely fanciful reading of the conservation
restriction." Nevertheless, the
restriction must be read in accordance with its plain language. As the judge noted, going forward, a notice
of alleged violation from Wildlands Trust, followed by Cedar Hill's failure to
immediately cease the challenged activity, may result in a different outcome,
pending the specific facts at issue.
[14] We note that section IV.B of the
restriction states that "[t]he parties agree that any enforcement action
will not be undertaken until the parties have completed dispute resolution
procedures set forth in Section IV (F)" of the restriction. That provision requires the parties to
negotiate "directly with each other" and, in the event they are
unable to resolve their dispute, "to participate in at least three hours
of mediation." We recognize that
the cease and desist provision in section IV.A and the dispute resolution
provision might lie in uneasy tension.
We also recognize the potential tension between these provisions and G.
L. c. 184, § 32. That notwithstanding,
these issues have not been briefed by the parties, and we need not resolve here
how they may interact in other circumstances.
[15] In its appellate brief, Wildlands
Trust does not argue that Cedar Hill's breach of section IV.A's procedural
requirements, standing alone, entitles Wildlands Trust to nominal damages and
attorney's fees under section IV.B, notwithstanding our determination that
Cedar Hill did not violate section III's substantive provisions. We therefore need not decide whether such a
procedural violation by itself would entitle Wildlands Trust to attorney's
fees.
[16] Contrary to Wildlands Trust's
argument, the record reveals that the parties approached and tried the case in
a manner consistent with the understanding that the burden rested with
Wildlands Trust.