Blakeley v. Gorin

• Decision Date: 12 July 1974
• Citation: 365 Mass. 590,313 N.E.2d 903
• Parties: Gerald W. BLAKELEY, Jr., et al., trustees, v. Harry N. GORIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 903

313 N.E.2d 903

365 Mass. 590

Gerald W. BLAKELEY, Jr., et al., trustees, v. Harry N. GORIN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 4, 1973.

Decided July 12, 1974.

John R. Hally, Boston, for Harry N. Gorin and others.

James D. St. Clair, Boston (Thomas J. Sartory, Boston, with him), for Gerald W. Blakeley, Jr., and others, trustees.

Thomas J. Crowley and Kevin Curry, Asst. Attys. Gen., for Attorney General, amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

HENNESSEY, Justice.

This is an appeal from a final decree of the Superior Court in equity on a petition brought pursuant to the provisions of G.L. c. 240, § 10A. The petitioners, owners of a parcel of land subject to certain restrictions known as the Commonwealth Restrictions, seek a determination and declaration that the restrictions are obsolete and unenforceable. More specifically, they seek such relief under the terms of G.L. c. 184, § 30. After proper notice was given to owners of nearby lots pursuant to c. 240, § 10B, a hearing was held at which several of these owners appeared as respondents in opposition to the petition. The petition was taken pro confesso against each of the others and against the Commonwealth. ¹ At the conclusion of the hearing the judge made findings of fact, including findings that since the imposition of the restrictions various public bodies have been given control over the basic design structure of buildings on premises subject to the restrictions, that there has been a radical change in the character of the neighborhood surrounding the petitioners' and the respondents' properties, and that as a result the restrictions are obsolete. He further found that it would be 'oppressive, inequitable and not in the public interest' to give effect to the restrictions in this factual setting. Damages were found to be nominal. The final decree declared the restrictions obsolete and unenforceable and that there would be no rights to any damages.

The Commonwealth Restrictions date from the middle of the last century. By 1850 the condition of the tidal flats which composed the area now known as the Back Bay had become a nuisance, largely due to drainage problems. The Commonwealth determined to fill in the area and sell lots for dwellings, subject to restrictions in conformity with a comprehensive land use plan.

With some exceptions and minor variations the same stipulations and agreements were inserted into all the deeds to land in the Back Bay district, from the Commonwealth as grantor to various private grantees, beginning in 1857. See generally, Attorney Gen. v. Gardiner, 117 Mass. 492 (1875); Allen v. Massachusetts Bonding & Ins. Co., 248 Mass. 378, 143 N.E. 499 (1924).

General Laws c. 184, § 30, inserted by St.1961, c. 448, § 1, on which the petitioners rely, provides that no restriction shall be enforced or declared to be enforceable 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. Further, even if a restriction is found to be of such benefit, it shall not be enforced except by award of money damages if any of several enumerated conditions are found to exist. ²

The facts are as follows. The petitioners are the owners of two parcels of land separated by Public Alley No. 437; the first is known as 2, 4, 6, 8 and 10 Commonwealth Avenue and the second as 13--15 Arlington Street and 1, 3, and 5 Newbury Street. The former is presently a vacant lot; the latter is the site of the Ritz-Carlton Hotel. Both are subject to various of the Commonwealth Restrictions. The petitioners plan to build on the former lot a 285 foot high hotel-apartment building, with a twelve-story structure as a bridge over the alley, connecting it with the Ritz-Carlton. Plans call for the new building to contain such restaurant and shopping facilities as are usually incidental to the running of a large hotel, and an underground garage for off-street parking as required by the Boston Zoning Code.

The respondents are the owners of 12--14 Commonwealth Avenue, a parcel which is adjacent to the petitioners' vacant lot and backs on the same alley. This property contains an eight-story building with eight apartments on each floor except the first, half facing Commonwealth Avenue and half the alley in back, half (the corner apartments) being of two rooms and half efficiency apartments. The thirty-two rear apartments derive their principal light and air from one window in each apartment on the alley.

Among the restrictions contained in the original deeds to the parcel numbered 4, 6, 8 and 10 Commonwealth Avenue are the following: '(a) That a passageway, sixteen feet wide, is to be laid out in the rear of the premises, the same to be filled in by the Commonwealth, and to be kept open and maintained by the abutters in common . . . (b) That any building erected on the premises . . . shall not in any event be used . . . for any . . . mercantile . . . purposes . . . (c) That any building erected on the premises . . . shall not in any event be used for a stable . . . (d) That no cellar or lower floor of any building shall be placed more than four feet below the level of the Mill Dam, as fixed by the top surface of the hammered stone at the Southeasterly corner of the emptying sluices. (e) That the front wall (of any building erected on the premises) . . . shall be set back twenty feet . . . provided that steps, windows, porticoes, and other usual projections appurtenant thereto, are to be allowed in said reserved space of twenty feet.' Among the restrictions contained in the original deed to the parcel numbered 2 Commonwealth Avenue are the same restrictions as those applicable to the parcel numbered 4, 6, 8, and 10 Commonwealth Avenue except that any building constructed thereon shall be set back from Commonwealth Avenue twenty-two feet, rather than twenty feet as stipulated for 4, 6, 8, and 10 Commonwealth Avenue. Among the restrictions contained in the original deeds to the parcels numbered 13--15 Arlington Street and 1, 3, and 5 Newbury Street is the following: 'That a passageway, Sixteen feet wide, is to be laid out in the rear of the premises, the same to be filled in by the Commonwealth, and to be kept open and maintained by the abutters in common . . ..'

We have found no error in the judge's decision that none of these restrictions shall be enforced, except in so far as he found that no damages shall be awarded. We note that the most difficult aspect of this case concerns the passageway. There will be no obstruction to the movements of persons or vehicles, since the bridge between the Ritz-Carlton building and the new building will start at a point thirteen feet above the ground. Nevertheless, the bridge will occupy most of the space between the two buildings for a height of twelve stories, with consequent effect on light and air. For this reason we have determined, as discussed later in this opinion, that damages are to be awarded for loss of light and air.

Our consideration of this case first concerns itself with the issue whether G.L. c. 184, § 30, is constitutional. We have determined below that there is no merit to the respondents' claim of unconstitutionality. Thereafter, as will be seen, we proceed to a consideration of each of the five restrictions. It will also be seen that our discussion of the construction of the statute, as well as its constitutional aspects, centers ont he restriction against blocking the passageway.

CONSTITUTIONALITY.

The respondents argue briefly, almost without discussion, that G.L. c. 184, § 30, is unconstitutional or has been unconstitutionally applied. The dissenting Justices in this case conclude that the statute is unconstitutional. We believe that the statute is constitutional and was constitutionally applied here.

The dissent concludes that the result of the trial judge's decision is an unconstitutional taking of the respondents' property for private purposes. Massachusetts Declaration of Rights, art. 10. United States Constitution, Amendments 5 and 14. It is true that the settled law of this Commonwealth is that deed restrictions of this type are a property interest in land. See Nash v. Eliot St. Garage Co., 236 Mass. 176, 180, 128 N.E. 10 (1920); Ward v. Prudential Ins. Co., 299 Mass. 559, 564, 13 N.E.2d 411 (1938); Belmont v. Massachusetts Amusement Corp., 333 Mass. 565, 572, 132 N.E.2d 172 (1956). Nevertheless, we believe, first, that there is no need to consider that a taking occurred in this case and, second, that even assuming there was a taking it was for a public purpose and was therefore constitutional.

While we need not decide the issue here, it is not at all clear that the operation of c. 184, § 30, in this case amounts to a taking in the constitutional sense. While G.L. c. 79, § 1, authorizes eminent domain proceedings to take 'any interest' in real property, and thus a restrictive covenant may theoretically be said to be 'taken,' the Commonwealth here is surely not taking an interest in the ordinary sense of that word. The statute here may with equal validity be viewed not so much as effecting a taking but as altering the remedies by which such restrictions may be enforced in certain circumstances. Thirty-sixth Report of the Judicial Council (December, 1960), Pub.Doc.No. 144, pp. 80--82, reprinted in 45 Mass.L.Q. (No. 4) 1 (1960). But see Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 117 N.E. 244 (1917).

Equity does not invariably and automatically grant specific enforcement of such restrictions on the use of land. Cf. Whitney v. Union Ry., 11 Gray 359, 366 (1858). ('They do not restrict the alienation of land. . . . They do not tend to perpetuity. . . . They do not impair the enjoyment of the property.'); Riverbank Improvement Co. v. Chadwick, 228 Mass. 242, 247, 117 N.E. 244, 245 ...