Gulf Oil Corp. v. Fall River Housing Authority

• Decision Date: 15 January 1974
• Citation: 364 Mass. 492,306 N.E.2d 257
• Parties: GULF OIL CORPORATION et al. v. FALL RIVER HOUSING AUTHORITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 257

306 N.E.2d 257

364 Mass. 492

GULF OIL CORPORATION et al. v. FALL RIVER HOUSING AUTHORITY et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Sept. 21, 1973.

Decided Jan. 15, 1974.

Richard C. Levin, Fall River, for Gulf Oil Corp. and another.

Antonio R. Luongo, Jr., Fall River, for Fall River Housing Authority.

Jeffrey S. Entin, Fall River, for Mount Hope Development Corp.

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

REARDON, Justice.

This bill in equity is brought to enforce a Land Assembly and Redevelopment Plan (plan) dealing with land in the city of Fall River (city). The plaintiff Gulf Oil Corporation (Gulf) is the owner of a parcel of land in the area affected by the plan, and alleges that the defendants Fall River Housing Authority (authority) and Mt. Hope Development Corporation (Mt. Hope) are violating a use restriction provided for in the plan.

The matter is hereon a statement of agreed facts, a transcript of the evidence and a report of material facts. Thus all questions of law, fact and discretion are open to our decision on review. Gordon v. O'Brien, 320 Mass. 739, 740, 71 N.E.2d 221 (1947). The evidence necessary to decision is undisputed and largely documentary. We are here in as good a position to decide the issues as the trial judge and may do so without deference to the inferences he may have drawn from the facts and, indeed, without regard to the findings and proceedings below. Shattuck v. Wood Memorial Home, Inc., 319 Mass. 444, 445, 66 N.E.2d 568 (1946). Weinstein v. Green, 347 Mass. 580--581, 199 N.E.2d 310 (1964).

The facts are these. In October, 1957, the authority, and the city, acting through its city council, approved the plan for 'The Pearl Street Redevelopment Project.' The plan divided the relevant area of the city into two zones, General Commercial A and General Commercial B, separated by Milliken Boulevard. A 1964 amendment to the plan specifying permitted uses in the two sections included inter alia the following provision: 'Hotel or motel use or restaurant, or gasoline service station use shall not be permitted in parcels designated General Commercial (B) if previously approved for a General Commercial (A) parcel. However, a small restaurant, snack bar or service station may be permitted as an incidental or accessory use serving a primary use such as a retail store.'

Gulf is the owner of property in General Commercial A. Its chain of title relates back to a conveyance from the authority in September, 1963. The original deed and all subsequent deeds of the property provided that the conveyance in each instance was subject to all restrictions and covenants in the 'Contract for Disposition of Land for Private Redevelopment' between the authority and Gulf's predecessor. That contract contained covenants restricting land uses to those permitted by the plan and provided that such covenants were enforceable by the grantor, grantee, their successors in title and the owners of land or any interest in land anywhere in the 'Project Area' which was subject to the restrictions of the plan. The plaintiff Edward Souza is the lessee of Gulf on a portion of the 'Project Area.' The plaintiff Fall River Municipal Employees' Credit Union (credit union) is the owner of land in General Commercial B. It was the direct grantee of the authority, and its contract of purchase and deed contained substantially the same restrictions as those noted with respect to the property of Gulf. Mt. Hope is the owner of a large part of the land in General Commercial B. The contract for sale of land to Mt. Hope provided for restrictions similar to those mentioned, and these restrictions were incorporated by reference into the deed by a correcting deed properly executed, delivered and filed. It is these last restrictive covenants which the plaintiffs seek to enforce.

In May, 1966, the authority issued a certificate of completion and approval to Gulf's predecessor in title approving the use of its land in General Commercial A as a hotel, motel, gasoline service station and/or restaurant. Gulf obtained the necessary licenses and approvals, and a service station operated by the plaintiff Souza opened on that site on or about June 1, 1968. In January, 1970, Mr. Hope was granted a permit by the Fall River city council to store gasoline on a parcel of its property in General Commercial B adjacent to the property of the credit union and across Milliken Boulevard from the service station of Gulf and Souza. A gasoline station was constructed on that site. The plaintiffs' suit alleges that this use was in violation of the quoted provision of the plan in that no gasoline service stations were to be permitted in General Commercial B following approval of gasoline service station use in General Commercial A. Such violation of the plan, it is alleged, would also constitute a violation of the restrictive covenants incorporated by reference in Mt. Hope's deed. The trial judge dismissed the bill with prejudice, and the plaintiffs brought this appeal.

1. The initial question presented is one of interpretation of the plan restrictions, for if the use by the defendants is in conformity with the plan no resolution of further issues is necessary for decision. The defendants contend that the facility constructed fits into the proviso for 'a small restaurant, snack bar or service station . . . as an incidental or accessory use serving a primary use such as a retail store' in General Commercial B. even if a 'gasoline service station' had already been approved for General Commercial A. The use of the property projected by the defendants appears to be that of an ordinary gasoline service station. The defendants argue that, notwithstanding the qualifying adjective 'small,' the kind of service station permitted in the last sentence of the provision should be interpreted as identical to the use referred to in the prior sentence. They further contend that the gasoline station in question is 'an incidental or accessory use serving a primary use such as a retail store' and that the primary use to which the service station is incidental is the planned complex of apartment buildings, office buildings and retail stores in the 'Project Area.' This interpretation makes every service station use an incidental one. If we adopted the reading urged by the defendants, we could paraphrase the provision as follows: 'Service station use may not be permitted in General Commercial B if previously approved for General Commercial A. However, a service station may be permitted.' We will not construe an instrument to imply such nonsense when the provisions may be read together consistently if the last sentence is interpreted to identify some use different in kind from that preceding it. See Corbin v. Healy, 20 Pick. 514, 515 (1838); Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 701, 200 N.E.2d 248 (1964). A reasonable construction of the plan indicates that the drafters intended to restrict ordinary service station use to one sector or the other, with exceptions for a particular and limited kind of use. We need not attempt to explicate the terms 'small' or 'incidental or accessory use' since it is clear that the questioned use before us is in no way different from that customarily associated with service stations in general. In the absence of any evidence that the use has some special characteristics which fit into the exception, we must hold that the use violates the plan and therefore the covenants in the deed to Mt. Hope.

2. The defendants next argue that in any event the covenants are against competition and therefore unenforceable under our holdings in Norcross v. James, 140 Mass. 188, 2 N.E. 946 (1885), and Shell Oil Co. v. Henry Ouellette ,& Sons Co., Inc., 352 Mass. 725, 227 N.E.2d 509 (1967). Before reaching that question it is necessary to determine what standing the plaintiffs have to enforce the covenant made by Mt. Hope to the authority. ¹ The conveyances by the authority to the plaintiffs preceded that from the authority to Mt. Hope. Ordinarily Mt. Hope's covenants arising from the latter conveyance could not benefit the property of the plaintiffs, the title to which was no longer in the authority. However, the right to enforce the covenant of Mt. Hope can be exercised by the plaintiffs if they are prior grantees from the authority of property which is part of a common scheme of development under the rule discussed in Snow v. Van Dam, 291 Mass. 477, 197 N.E. 224 (1935). If such a scheme exists here, embracing the land of both the plaintiffs and Mt. Hope, the plaintiffs may enforce the restriction.

We think such a scheme does exist. The plan was formulated and approved in 1957 before any of the conveyances described. Every purchaser was aware of the existence of that plan and every purchaser was required to covenant to use the property acquired in accordance with that plan. Indeed, such covenants from every purchaser were required by statute. G.L. c. 121, § 26LL, repealed by St.1969, c. 751, § 2, G.L. c. 121B, § 49, added by St.1969, c. 751, § 1. The restrictions are identical in that each grantee was required to adhere to the plan. See Snow v. Van Dam, supra, at 481--483, 197 N.E. 224. It was not of course uniform with respect to the particular building or use restrictions which are imposed on individual lots. While the language of some opinions might be construed as mandating such physical uniformity before a common scheme is found, see, e.g., Sterling Realty Co. v. Tredennick, 319 Mass. 153, 64 N.E.2d 921 (1946), we do not believe the intent or rationale of the rule allowing enforcement by owners restricted by a common scheme supports such a narrow interpretation.

While it is true that the legal theory behind the rule related to a common scheme 'is not easy to find,' Snow v. Van Dam, supra, 291 Mass. 485, 197 N.E. 224; Am. Law of Property, § 9.30 (1952), we think the policy...