Earlier this month, the Appeals Court decided Berger v. 2 Wyndcliff, LLC, a dispute over conflicting interpretations of how to extend so called “common scheme” restrictions on land use. G.L. c. 184, §. 27. The restriction in this case originated in 1980 when a property owner executed an agreement of “protective covenants and easements” for the benefit of future owners in conjunction with subdividing her property. The agreement restricted development (among other things, only one single-family dwelling was allowed per lot), and was to run with the land and bind the parties for 30 years from the date of recording. These were common scheme restrictions that applied to four or more contiguous parcels.
Future owners later amended the agreement, with one amendment by two-thirds of the owners purportedly allowing extensions of the restrictions beyond 30 years. Neighbors ultimately sued each other, disputing whether these restrictions were extended or had expired in 2010. The Appeals Court held that, because the instrument originally creating the restriction did not allow extensions, any such amendment violated G.L. c. 184, § 27(b). That law allows common scheme restrictions to be extended beyond 30 years for 20 years at a time under certain conditions, including that the imposing instrument allowed for extensions. Other (non-common scheme) restrictions may be extended without regard to the language of the original instrument imposing the restriction.
In deciding an issue not reached by the Land Court below, this case highlights a difference between common scheme restrictions and non-common scheme restrictions. The judge below had concluded that the amendments made the restrictions unlimited as to time and, thus, they expired 30 years from their creation. See G.L. c. 184, §. 23. He did not reach the issue of whether these parties to common scheme restrictions had properly changed the restrictions’ duration. In the seminal 2001 case Stop & Shop v. Urstadt Biddle Properties, the SJC held that parties (two abutting commercial landowners) to a land use restriction agreement could remove a fifty-year prohibition on certain uses. Removing the time limit made this restriction “unlimited as to time,” invoking G.L. c. 184, §23 and putting the property in a situation where the restriction expired in 30 years. But that was not a common scheme restriction, to which we now know that slightly different rules apply.
This result is logical — common scheme restrictions apply to a group of neighbors, who may have had limited or no bargaining power when acquiring their properties. The initial developer sets the common scheme restrictions, giving those coming into possession notice of the unique qualities and restrictions of the neighborhood. In contrast, it is more equitable for two abutters (such as the owners of one burdened and one benefited parcel) to freely bargain for and enforce lengthy, non-common scheme land use restrictions. As the Appeals Court stated, “the mechanism for the extension of restrictive covenants cannot be added by a later vote of less than one hundred percent of all property owners in the common scheme.” It should be easier for two neighbors to agree on land use than it would be for the four or more neighbors in a common scheme.
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commercial mixed-use development as “Project of the Month” (September 22-28, 2017, Section B, centerfold, nerej.com). Olde Shrewsbury Village was a colonial-style shopping center with a footbridge at the junction of Routes 9 and 20 in Shrewsbury. Turtle Rock, LLC, the owner, developed an ambitious revitalization plan that included relocating an internal stream to the property perimeter in order to create parking close to the retail shops. Mackie Shea was on an elite development team that advanced a creative technical, legal and political strategy, and over four years secured local, state and federal permits and approvals. Little Bummet Brook was transformed from a stormwater drainage ditch into a vibrant stream and ecosystem. Construction was timed to avoid potential impacts to the Northern Long-Eared Bat, a newly listed endangered species.