Seeing the light: ignoring collateral economic benefits to the public when enforcing servitudes.

AuthorSchneider, Michael S.

... No restriction determined to be of such actual benefit shall be enforced or declared to be enforceable, except in appropriate cases by award of money damages, if ... (5) enforcement, except by award of money damages, is for any other reason inequitable or not in the public interest. (1)

In the words of provision (5) ... we take judicial notice of the exceedingly high property tax rates current in the city of Boston and the beneficial effect on the tax base of the petitioners' plan to construct a multimillion dollar project. (2)

There is, moreover, no principled way of distinguishing economic development from other public purposes that we have recognized. (3)

  1. INTRODUCTION

    In 1974 in Blakeley v. Gorin, (4) the Massachusetts Supreme Judicial Court abrogated significant non-fee property rights in the Commonwealth by refusing to enforce specifically servitudes known as Commonwealth Restrictions in Boston's Back Bay neighborhood. (5) The Commonwealth Restrictions at issue in Blakeley provided certain property owners with a vested interest in maintaining the flow of ambient light and air through the alleyway that runs between and behind the parcels of land subject to the restrictions. (6) In holding that property owners could build a sky-bridge that would necessarily limit their neighbors' access to ambient air and light, the court explained that the sky-bridge would increase the tax base for the city of Boston and thus the intrusion on non-fee private property rights was justified. (7) The legal vehicle that allowed the Court to reduce petitioners' building's access to ambient light and air was Massachusetts General Law Chapter 184 [section] 30. (8) The question whether the Supreme Judicial Court in Blakely v. Gorin facilitated an unconstitutional taking under the United States Constitution became moot when the United States Supreme Court announced its decision--legitimizing a private party taking for economic development as a sound "public use"--in Kelo v. City of New London. (9)

    The national reception of Justice Stevens' Kelo decision has been hostile, and the response to it could be characterized as a property rights defense movement. (10) I contend that the Massachusetts General Court should participate in this movement not only by passing legislation to protect fee interests as other states have done, but also by passing legislation to protect non-fee interests such as the Commonwealth Restrictions at issue in Blakeley. (11) Amending Massachusetts General Law c. 184 [section] 30 to preclude the taking of non-fee property interests for collateral economic benefits, I believe, would return the statute to its original purpose by relegating matters collateral to use and occupancy of land to non-factors. (12)

    This note proceeds in the following manner: First, I will investigate and report the legislative history and purpose of G.L. c. 184 [section] 30. (13) Second, an explication of G.L. c. 184 [section] 30 is warranted. In particular, I will stress that the statute, except for the amorphous "public interest" clause, explicitly regulates or has been held to regulate either the equitable conduct of parties or some type of tangible, three-dimensional use or occupancy of land. (14) Third, I will investigate how the statute was used in Blakeley v. Gorin, and I will discuss Justice Quirico's dissent. (15) Fourth, I will discuss Kelo with an eye toward explaining two points: how Kelo relied on precedent to arrive at a holding that is counter to the plain text of the Fifth Amendment and, therefore, how Justice Quirico's Constitutional dissent was rendered moot thereby. (16) Fifth, Kelo has spawned a property rights defense movement with popular, judicial, and legislative responses, and I will argue that any response to it in Massachusetts needs to legislative. (17) Last, I will argue that my proposal to amend the statute will broaden the protection of significant property interests while also serving the original purpose of the statute. (18)

  2. THE HISTORY AND PURPOSE OF MASSACHUSETTS GENERAL LAW CHAPTER 184 [section] 30

    Massachusetts General Law Chapter 184 [section] 30 was passed into law by the Massachusetts General Court on May 10, 1961 as part of "An Act To Protect Land Titles From Uncertain And Obsolete Restrictions And To Provide Proceedings In Equity Thereto." (19) The aforementioned act was not passed in order to facilitate the state's exercise of eminent domain power through condemnation. (20)

    The act simply subjects all parcels in the Commonwealth with restrictions that run with the land to the provisions of the statute. (21) The act further provides that restrictions on such parcels are not enforceable unless recorded, and the act requires that any such restriction must be re-recorded thirty years after its inception and every twenty years after that in order to be enforceable. (22) G.L. c. 184 [section] 30 provides for equity proceedings to regulate, limit or eliminate uncertain or obsolete restrictions. (23) Given the express and implied purpose of the legislation of which Chapter 184 [section] 30 was an integral piece, it is doubtful that the court's decision in Blakely v. Gorin served the statute well. (24)

  3. EXPLICATING MASSACHUSETTS GENERAL LAW CHAPTER 184 [section] 30

    1. The "actual and substantial benefit" requirement

      No restriction shall in any proceeding be enforced or declared to be enforceable, whether or not the time for recording a notice or extension under section twenty-seven or twenty-eight has occurred, or such a notice or extension has been recorded, unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement. (25) The first part of the statute's initial sentence makes explicit that recording requirements of restrictive covenants and equitable servitudes and the possibility of their enforcement are entirely separate inquiries in the Commonwealth. (26) For our present purposes the latter half of the statute's first sentence, the "unless" clause, is more crucial as it serves as a gateway for my contention that the statute aims to regulate the three-dimensional use of land. (27) The Massachusetts Court of Appeals and the Supreme Judicial Court have announced that "actual and substantial benefits" contemplated under the statute cannot be collateral to the enforcing party's use of land at issue. (28)

      A wide variety of actual and substantial benefits, however, have been recognized as legitimate in the case law so long as the benefit concerns the three-dimensional use or occupation of land. (29) For example, in Connaughton v. Payne (30) a restriction limiting the number of single family dwellings the plaintiff could build on her property was upheld. (31) At trial, experts offered testimony that "[further] development of plaintiff's property would upset the species diversity and populations of both plant and animal life on the defendants' property." (32) The restriction did provide an actual and substantial benefit to the defendants by protecting the ecosystem on their land they had sought to nurture and protect. (33)

      Aesthetic and economic considerations have also been taken into account by fact-finders when determining whether a restriction provides an actual and substantial benefit to a party seeking its enforcement. (34) In Atwood v. Walter (35) a development's restriction in Barnstable, in keeping with traditional Cape Cod building practices, required all roofs in the development to be constructed with wooden shingles or shakes. (36) The unique architectural character of the development neighborhood, Jacob's Farm Village, was worth protecting, and the defendant was benefited by the restriction as it served to preserve a unique and aesthetically pleasing set of homes. (37) Similarly, in Kline v. Shearwater Association, Inc. (38) a development's restrictions aimed toward creating a uniform scheme of development that protected the natural topography of the area. (39) The trial judge's finding that the covenants at issue thus provided "an actual and substantial value" was upheld by the Appeals Court. (40)

      Restrictions conducive to pleasing aesthetics have been held to provide actual and substantial benefits even when they have the additional effect of reducing economic competition within a certain area. (41) In Gulf Oil Corporation v. Fall River Housing Authority a redevelopment authority divided one area into two parcels. (42) In one of the areas service stations were not allowed to be constructed if they had been permitted in the other. (43) This had the effect of limiting gas station competition in the former area. (44) The restriction was upheld because it provided a benefit of a mutually helpful, orderly development for the area of Fall River at issue. (45)

      Restrictive covenants that have the effect and purpose of limiting business competition have also been upheld. (46) In Exit 1 Properties Limited Partnership v. Mobil Oil Corp. mutually restrictive covenants between two parcels, once owned by a common grantor, had the effect of allowing sales of gasoline only on one of the parcels and the sale of food only on the other. (47) Thus, by promoting the restaurant business conducted on the latter parcel, the covenant provided an actual and substantial benefit to its owner. (48)

      The above cases demonstrate actual and substantial benefits within the meaning of the statute take various forms, but in all circumstances the covenant aids use or occupation of land somehow. (49) In Garland v. Rosenshein (50) the Supreme Judicial Court held that a covenant barring development on a parcel's adjoining land was not of actual and substantial benefit where the grantor-defendant owned no other land in the same town. (51) The covenant did not help the defendant use or occupy his own land anywhere. (52) The defendant, moreover, could not claim that the price of releasing the covenant--what Justice...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT