Cohen v. City of Lynn

• Decision Date: 26 October 1992
• Docket Number: No. 90-P-1105,90-P-1105
• Citation: Cohen v. City of Lynn, 598 N.E.2d 682, 33 Mass.App.Ct. 271 (Mass. App. 1992)
• Parties: Henry A. COHEN & others 1 v. CITY OF LYNN & another 2 (and a companion case).
• Court: Appeals Court of Massachusetts

Page 682

598 N.E.2d 682

33 Mass.App.Ct. 271

Henry A. COHEN & others¹ v.CITY OF LYNN & another ²(and a companion case).

No. 90-P-1105.

Appeals Court of Massachusetts Essex.

Argued Dec. 17, 1991.

Decided Sept. 8, 1992.

Further Appellate Review Denied

Oct. 26, 1992.

Mary P. Harrington, Salem, for Saul Gilberg.

George S. Markopoulos, Asst. City Sol., for the City of Lynn.

George E. Richardson, Boston, for plaintiffs.

Before PERRETTA, JACOBS and GILLERMAN, JJ.

JACOBS, Justice.

The plaintiffs challenged the conveyance to a private developer (Gilberg) in 1982 of a 17,538 square foot parcel of land, adjacent to Lynn Shore Drive, claimed by the city of Lynn to be no longer usable for park purposes.The land had been transferred with the approval of the mayor and city council.Subsequent to the delivery of the deed, the Legislature, by enactment of St.1983, c. 326, purportedly authorized the conveyance of the parcel by private sale.In their "ten taxpayers" complaint in the Superior Court, ³the plaintiffs sought a judgment declaring that the conveyance violated the city's obligations under a public charitable trust which they claimed arose in 1893 when the parcel was acquired by deeds which state the land is to be used "forever for park purposes."⁴They sought to force the city to forever "hold, manage, use and allow use" of the parcel for public parkland.They also requested an order rescinding the conveyance to Gilberg and requiring him to restore the parcel to its condition prior to his acquisition of it.⁵After the plaintiffs were granted leave to pursue their action in the Superior Court under G.L. c. 214, § 3(10), the city and Gilberg filed a complaint in the Probate Court for application of cy pres.An order of the Chief Administrative Justice of the Trial Court assigned a judge to sit simultaneously as a justice of the Probate and Superior Courts to hear and decide these cases, consolidated in the Superior Court, pursuant to G.L. c. 211B, §§ 3 and 9.The Attorney General later was permitted to intervene as a party.

The case was submitted to the judge, sitting without jury, on the basis of certain stipulated facts, exhibits, and pretrial discovery.After taking a view, the judge issued a memorandum of decision and order in which he concluded that the parcel was still impressed with the public charitable trust originally established, and it had not been demonstrated that it had become impossible or impracticable to carry out the trust purposes.He expressly found that the parcel possessed "a beautiful scenic ocean view" and was "suitable for park purposes."He also found that at the time of the purported conveyance to Gilberg the parcel "was a popular area for walkers, riders, and joggers" and "provided a scenic vista of open space suitable for park purposes and reinforced the 'greenness' of the area."He further concluded that the trust obligations could not be impaired by the enactment of special legislation purporting to authorize the city to convey the parcel at a private sale and declared the conveyance to Gilberg null and void.He ordered restoration of the parcel to its pre-1982 condition.

The city and Gilberg appeal from the consolidated judgment entered in accordance with the judge's findings and conclusions.They claim that the judge misinterpreted the terms of the 1893 conveyance and improperly construed the concept of park purposes and, therefore, erroneously concluded that a trust was established, and that its terms can still be carried out.They argue that even if a trust was established, only a general charitable intent was evident; that compliance with the original terms is today impracticable; and that the doctrine of cy pres should be applied to determine that the conveyance to Gilberg, and the development and use he proposed, bring the conveyance within the original purposes of the trust.We affirm the judgment.

1.Was a Public Charitable Trust Established?⁶

Each of the two deeds by which the city of Lynn acquired title states in the habendum clause, "to the ... [c]ity of Lynn to its own use and behoof forever for park purposes."Since the deed of one grantor cites the proposed conveyance by the other grantor of the adjacent land to the city, we treat the conveyances as constituting a single declaration of trust.SeeBourgeois v. Hurley, 8 Mass.App.Ct. 213, 218, 392 N.E.2d 1061(1979)."Property conveyed to a governmental body ... for particular public purposes may be subject to an enforceable general public obligation or trust to use the property for those purposes."Nickols v. Commissioners of Middlesex County, 341 Mass. 13, 18, 166 N.E.2d 911(1960), and authorities cited.Whether a trust or obligation is imposed is "a matter of interpretation of the particular instrument and determination of the particular donors' intent[,]" and " 'is to be ascertained from a study of the instrument[s] as a whole in the light of the circumstances attending ... [their] execution.Search should be made for a general plan ... designed to express a consistent and harmonious purpose.' "Nickols v. Commissioners of Middlesex County, supra at 19, 166 N.E.2d 911, quoting fromJewett v. Brown, 319 Mass. 243, 248, 65 N.E.2d 307(1946).SeeNewburyport Redev. Authy. v. Commonwealth, 9 Mass.App.Ct. 206, 229, 401 N.E.2d 118(1980);Hillman v. Roman Catholic Bishop of Fall River, 24 Mass.App.Ct. 241, 243, 508 N.E.2d 118(1987).

The conveyances in the present case contain direct and unambiguous language, clearly declaring that the grantors divested themselves of all their interests in the land "forever for park purposes."Similar conveyances of land for parks, where the grantors specified the land be used "forever" or "in perpetuity," without other limitation, have been found to establish a public charitable trust.SeeSalem v. Attorney Gen., 344 Mass. 626, 629-631, 183 N.E.2d 859(1962);Dunphy v. Commonwealth, 368 Mass. 376, 383, 331 N.E.2d 883(1975);Opinion of the Justices, 369 Mass. 979, 985-986, 338 N.E.2d 806(1975);Newburyport Redev. Authy. v. Commonwealth, supra9 Mass.App.Ct. at 229-230, 401 N.E.2d 118;Hillman v. Roman Catholic Bishop of Fall River, supra24 Mass.App.Ct. at 244-245, 508 N.E.2d 118.There is here no precatory language; no mere statement of a use only; no condition or limitation on the use; nor any right of reversion.CompareLoomis v. Boston, 331 Mass. 129, 132, 117 N.E.2d 539(1954);Dunphy v. Commonwealth, supra, 368 Mass. at 378, 331 N.E.2d 883;Opinion of the Justices, supra369 Mass. at 983-985, 338 N.E.2d 806;Newburyport Redev. Authy. v. Commonwealth, supra9 Mass.App.Ct. at 230, 401 N.E.2d 118.See generallySelectmen of Provincetown v. Attorney Gen., 15 Mass.App.Ct. 639, 642-643, 644-645 & nn. 6-8, 447 N.E.2d 677(1983).

The city and Gilberg suggest that since the grantors received substantial payment for the land in 1893, the conveyance was not a gift and, therefore, no trust was established.The record indicates that the city council appropriated $12,000 toward the $20,000 purchase price on the condition that the remaining $8,000 be raised by public subscription.The latter amount was obtained from "property owners near the beach, and by a few public spirited citizens" and included $1,500 donated by the grantors.We have found no authority, nor is any cited to us, ⁷ to the effect that the receipt of substantial consideration prevents a grantor from conveying property to a municipality in such manner as to establish a public charitable trust.Generally, the creation of a trust may be supported by consideration "in the sense that the beneficiary confers a benefit on the settlor in order to obtain from him the creation of the trust."Bogert, Trusts and Trustees§ 202, at 8-9 n. 8 (2d ed. rev. 1992).Moreover, the grantors' monetary contribution in effect establishes that the conveyance, in part, was a gift.In any event, the record does not indicate that the payment to the grantors represented fair market value.This case must be distinguished from decisions denying trust status to conveyances made for substantial consideration "in fee simple forever" and which recited "no specific purpose ... in the deeds...."Jacobson v. Parks & Recreation Commn. of Boston, 345 Mass. 641, 643, 189 N.E.2d 199(1963).SeeBrooks v. Boston, 334 Mass. 285, 286, 135 N.E.2d 13(1956).

The circumstances attending the conveyances to the city evidence a general plan to dedicate the land permanently to public park purposes.During much of the time it was privately owned, the land had been vacant and open to the public.In 1891, the city's park commissioners wrote in their annual report that the owners "are willing to sell this land to the city at [a] reasonable price, if dedicated to public use."They described a less desirable alternative for the city: "It is evident that the time is not far distant when the owners will seek to recover the sum annually paid in taxes for many years, and will sell the land in small lots or make such improvements as may exclude the public."In their 1892 annual report, the commissioners stated the land was to be "secured for public enjoyment forever."The "general plan" and expression of a "consistent and harmonious purpose" are evident.SeeNickols v. Commissioners of Middlesex County, 341 Mass. at 19, 166 N.E.2d 911.The judge correctly concluded that a public charitable trust arose from these conveyances and that the acceptance of deeds by the city, "constituted a contract between the donor and the donee which must be observed and enforced."Salem v. Attorney Gen., 344 Mass. at 631, 183 N.E.2d 859.AccordDunphy v. Commonwealth, 368 Mass. at 383, 331 N.E.2d 883;Opinion of the Justices, 369 Mass. at 982-983, 988, 338 N.E.2d 806;Newburyport Redev. Authy. v. Commonwealth, 9 Mass.App.Ct. at 230, 401 N.E.2d 118.

2.Has It Become Impracticable to Carry Out the Trust Purposes?⁸

The city and Gilberg argue that it has become impossible or...