Wildlands Trust of Southeastern Mass., Inc. v. Cedar Hill Retreat Center, Inc.

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19-P-971 Appeals Court
WILDLANDS TRUST OF SOUTHEASTERN MASSACHUSETTS, INC.1 vs. CEDAR
HILL RETREAT CENTER, INC.
No. 19-P-971.
Suffolk. May 7, 2020. - November 12, 2020.
Present: Neyman, Englander, & Hand, JJ.
Real Property, Conservation restriction. Practice, Civil,
Findings by judge, Presumptions and burden of proof.
Waiver.
Civil action commenced in the Superior Court Department on
May 4, 2016.
The case was heard by Kenneth W. Salinger, J.
Emily Kanstroom Musgrave for the plaintiff.
Jason W. Morgan for the defendant.
Christopher A. Klem, Lillian F. McCullough, & Heather M.
Romero, for Massachusetts Audubon Society & another, amici
curiae, submitted a brief.
1 Wildlands Trust of Southeastern Massachusetts, Inc., has
changed its name to Wildlands Trust, Inc. Consistent with our
practice, we use the entity name that appears in the amended
complaint.
2
NEYMAN, J. In this case, we interpret a conservation
restriction (restriction) voluntarily placed on a parcel of real
property owned by the defendant, Cedar Hill Retreat Center, Inc.
(Cedar Hill). The plaintiff, Wildlands Trust of Southeastern
Massachusetts, Inc. (Wildlands Trust), contends that a Superior
Court judge incorrectly construed certain provisions of the
restriction, and that, as a result, the judge erred in
determining that Cedar Hill did not violate the restriction. We
agree that the judge's interpretation of one provision of the
restriction was inconsistent with its plain meaning. However,
we affirm the judgment because we agree with the judge that
Wildlands Trust did not prove that Cedar Hill committed a breach
of the restriction as properly construed.2,3
Background. In 1969, the Massachusetts Legislature enacted
the Conservation Restriction Act, G. L. c. 184, §§ 31-33, which
created a framework to protect conservation lands, historic
properties, and agricultural lands through the use of what are
essentially negative easements. The grantor of a conservation
restriction voluntarily restricts the use of its land. See,
2 As discussed below, Wildlands Trust did not preserve for
appeal its claim that the judge erred in placing the burden of
proof on it at trial.
3 We acknowledge the amicus brief submitted by the
Massachusetts Audubon Society and the Massachusetts Land Trust
Coalition.
3
e.g., Goldmuntz v. Chilmark, 38 Mass. App. Ct. 696, 697-698
(1995). The grantor maintains possession but grants a
nonpossessory interest in the property to a holder -- generally
a government entity or charitable organization -- which agrees
to protect the natural aspects of the property. See G. L.
c. 184, § 32. In this manner, c. 184 furthers "the public
benefits of conserving land and water in their 'natural, scenic
or open condition.'" Weston Forest & Trail Ass'n v. Fishman, 66
Mass. App. Ct. 654, 658 (2006), quoting G. L. c. 184, § 31. The
creation of a permanent conservation restriction requires
government approval, including by the Secretary of Energy and
Environmental Affairs, who must determine that the restriction
is in the public interest. See generally G. L. c. 184, §§ 32-
33. Conservation restrictions have become a popular tool for
land conservation in the Commonwealth. There was evidence at
trial that conservation restrictions currently protect more than
4,000 properties in Massachusetts.
1. The premises.4 One such property is the approximately
twelve-acre parcel on the shores of Duxbury Bay in Duxbury that
is the subject of this litigation. The premises is
predominantly undeveloped coastal habitat, but it also contains
4We refer to the real property at issue in this litigation
as the premises, consistent with the terminology used in the
restriction.
4
two residential buildings, a small storage shed, an unpaved
driveway, and an unpaved path to the beach. The Ballou Channing
District of the Unitarian Universalist Association (Ballou
Channing), a religious organization, acquired the premises in
the 1980s and used it for retreats and educational programs for
approximately thirty years. In 2008, John and Cynthia Reed, who
own an abutting parcel, paid Ballou Channing $3 million to
secure a conservation restriction protecting the premises. The
Reeds appreciated living next to undeveloped land and wanted to
ensure that the premises "would not be developed or used in a
way that would disturb their own peace and quiet." In 2009,
Ballou Channing created Cedar Hill and transferred ownership of
the premises to it, subject to the restriction. Today, Cedar
Hill operates the premises, in part, as a retreat center,
renting the buildings to companies, families, and other groups
for a fee.
Wildlands Trust helped the Reeds negotiate and obtain the
restriction, agreed to assume responsibility for monitoring and
enforcing the terms of the restriction, and is a signatory to
the restriction. Wildlands Trust is a regional land trust that
works to preserve and protect native habitats, farmland, and
areas of scenic value in southeastern Massachusetts. It
oversees approximately 260 properties, encompassing more than
8,500 acres of protected land. It monitors properties through
5
annual visits and notifies the landowner if it believes there
are violations of the restriction applicable to a particular
property.
2. The conservation restriction. The restriction, which
was recorded in the Plymouth County registry of deeds on October
24, 2008, states in section II5 that its purpose is to
"protect[], preserve[] and conserve[] in perpetuity [the]
predominately natural, scenic, wooded and open space condition
[of the Premises] . . . [,] the bird, plant, and wildlife
populations on the Premises, and . . . the aesthetic and
ecological condition of the Premises," while also "permitt[ing]
uses described" in section III.B of the restriction.
5 Section II of the restriction, captioned "PURPOSE,"
states, in relevant part:
"Grantor intends that this Conservation Restriction will
assure that, while permitting uses described in Section
[III.B} below, the Premises will be protected, preserved
and conserved in perpetuity in its predominately natural,
scenic, wooded and open space condition. Grantor intends
that this Conservation Restriction will preserve and
protect in perpetuity (i) the bird, plant and wildlife
populations on the Premises, and (ii) the aesthetic and
ecological condition of the Premises. Grantor also further
intends that this Conservation Restriction will prevent any
use of the Premises other than for the intention mentioned
above or the permitted uses described in Section [III.B].
below. Grantor additionally intends that this
C[onservation ]R[estriction] will prevent those activities
that would materially impair or harm the Premises or
conservation interests that are the subject of this
Conservation Restriction, or in any manner conflict with
the maintenance of the Premises in its existing natural,
scenic, wooded, open space condition."
6
To achieve its purpose, the restriction further states that
the restriction will "prevent those activities that would
materially impair or harm the Premises or conservation interests
that are the subject of this Conservation Restriction." It then
enumerates certain permitted and prohibited uses. As relevant
here, the restriction, at section III.B.1, permits the
premises's use "for the quiet enjoyment of nature for religious,
aesthetic, non-motorized/passive recreation, scientific and/or
educational purposes." Section III.B.2 states that "[t]he
Premises may be used for research and programs of study in the
fields relating to religion, geology, conservation, and nature."
Section III.B.3 permits the premises's use "for classes,
conferences, and retreats, all consistent with the Purposes set
forth in Section II," discussed supra, and allows for the
collection of fees "in connection with such activities."
Section III.B.3 is the only provision in the restriction that
permits charging a fee for use of the premises.
Section IV of the restriction makes available to Wildlands
Trust certain legal remedies, including a provision authorizing
Wildlands Trust to equitably enforce the restriction. That
provision also sets forth a procedure for addressing alleged
violations of the restriction. Specifically, section IV.A of
the restriction states:
7
"[Wildlands Trust] shall immediately notify [Cedar Hill] in
writing of the nature of the alleged violation if
[Wildlands Trust] finds what it believes is a violation.
Upon receipt of this written notice, [Cedar Hill] shall
either (a) immediately cease the activity constituting the
violation and promptly restore the [premises] to its
condition prior to the violation to the satisfaction of
[Wildlands Trust], or (b) immediately cease the activity
and provide a written explanation to [Wildlands Trust] of
the reason why the alleged violation should be permitted."
The restriction also contains, at section IV.E, an
antiwaiver clause, which states that "[a]ny election" Wildlands
Trust makes "as to the manner and timing of its right to enforce
th[e] Conservation Restriction . . . shall not be deemed or
construed to be a waiver of such rights."
Section IV.F of the restriction is a dispute resolution
provision that authorizes either party to call a meeting at any
time "for the purpose of resolving disputes or problems arising
under this Conservation Restriction." This provision also
requires the parties to "make every reasonable effort to resolve
problems or disputes to the satisfaction of both parties."
Finally, the provision requires the parties, "prior to pursuing
other available remedies," to attempt to negotiate any dispute
"directly with each other" and, "[i]f negotiation is
unsuccessful," to participate in mediation.
3. The parties' dispute. Shortly after Ballou Channing
transferred the premises to Cedar Hill, Wildlands Trust became
concerned that Cedar Hill authorized retreats on the premises
8
that violated the restriction. Wildlands Trust initially
claimed that Cedar Hill could host only retreats that had a
religious or charitable purpose. In other words, Wildlands
Trust viewed family and business rentals as prohibited.
Wildlands Trust also viewed overnight stays as prohibited. Over
time, Wildlands Trust moderated its position. Its complaint and
amended complaint alleged that the restriction did not bar
retreat rentals that promoted the preservation, protection, or
study of the premises. At trial, Wildlands Trust focused on
what it perceived as the overuse of the premises, contending
that Cedar Hill was "in effect using the [premises] as a
commercial hotel or resort," exposing the premises to damage
from excessive foot and vehicle traffic.6
Beginning in 2010, Wildlands Trust sent Cedar Hill a number
of letters and e-mails and arranged meetings to discuss the
perceived violations. Cedar Hill acknowledged that it had
notice of some of Wildlands Trust's concerns. Nonetheless,
Cedar Hill continued to rent the premises to families and
businesses.7
6 Although Wildlands Trust framed much of its trial argument
in terms of overuse, its president and executive director
testified throughout trial to the earlier claim that the
restriction prohibits all overnight rentals of the premises, and
prohibits day retreats unless the use was "religious or
charitable."
7 At various times, Wildlands Trust raised concerns about
9
4. Superior Court proceedings. On May 4, 2016, Wildlands
Trust filed a five-count complaint against Cedar Hill in the
Superior Court. A judge allowed Cedar Hill's motion to dismiss
four of the counts, leaving only Wildlands Trust's claim for
breach of the restriction.8 On June 8, 2017, Wildlands Trust
filed an amended complaint. A judge again partially allowed
Cedar Hill's motion to dismiss, again leaving only Wildlands
Trust's claim for breach of the restriction.
Following discovery, Wildlands Trust filed a motion for
summary judgment. In his summary judgment decision, the judge9
interpreted certain provisions of the restriction. The case
then proceeded to a bench trial on Wildlands Trust's sole
remaining claim against Cedar Hill, the alleged breach of the
restriction. After trial, the judge issued comprehensive
findings of facts and rulings of law, which incorporated his
interpretation of the restriction from his earlier summary
other issues, including improperly parked cars, improvements to
the buildings on the premises, and the cutting of trees. The
judge determined that the parties resolved those concerns before
trial. In any event, Wildlands Trust does not press these
issues on appeal.
8 Wildlands Trust's amended complaint also named Ballou
Channing as a defendant. Wildlands Trust eventually settled its
claims against Ballou Channing.
9 The judge presiding over the summary judgment motion and
the trial was not the same judge who heard and decided the
motion to dismiss the amended complaint.
10
judgment decision. In particular, the judge ruled that the
restriction "allows classes, conferences or retreats [that], at
least in material []part, involve or promote the preservation,
protection, study, or quiet enjoyment of the bird, plant, and
wildlife population, or the aesthetic or ecological condition of
the [premises] without materially . . . impairing any of these
conservation interests." Based upon this interpretation of the
restriction, the judge determined that Cedar Hill's rental of
the premises to businesses and families did not violate the
restriction because, inter alia, the renters enjoyed the
premises's natural features and views during their stays.
The judge also found that Wildlands Trust had failed to
give prompt written notice of certain violations and to make
reasonable efforts to resolve disputes concerning alleged
violations, thereby waiving its right to bring a lawsuit as to
those violations. Finally, the judge found that Cedar Hill's
decision to continue renting the premises to families and
businesses until the parties resolved the dispute did not
constitute a material breach of the dispute resolution
provisions of the restriction. The judge found that any such
violation was "technical" and "immaterial." The judge
explained:
"[t]o rule otherwise would be to give Wildlands Trust
unilateral power to alter the terms of the . . .
restriction. It would mean that Wildlands Trust could
11
issue a written notice of violation based on a mistaken or
even, in theory, a purely fanciful reading of the . . .
restriction and that Cedar Hill would have to give up its
actual rights under the . . . restriction by immediately
ceasing that use of the [premises] until it could complete
the dispute resolution procedure, file a civil action, and
obtain a declaratory judgment that the use was permitted
under the . . . restriction."
In sum, the judge found that Cedar Hill had not committed a
material breach of any provision of the restriction. A final
judgment, (1) declaring the allowed and prohibited uses under
the restriction, and (2) ordering that Wildlands Trust was not
entitled to recover damages or attorney's fees, or to obtain any
permanent injunctive relief against Cedar Hill, entered in Cedar
Hill's favor on April 2, 2019. Wildlands Trust now appeals from
that judgment.
Discussion. Wildlands Trust argues that the judge erred in
his interpretation of the restriction. Wildlands Trust also
contends that the judge failed to give effect to the
restriction's antiwaiver provisions, misinterpreted the cease
and desist provision of the restriction, and failed to place the
burden at trial on Cedar Hill to prove that the activities on
the premises did not violate the restriction. We affirm the
judgment because the judge did not err in determining that
Wildlands Trust did not prove that Cedar Hill committed a breach
of the restriction as properly construed.
12
In reviewing the judge's decision, we accept his findings
of fact unless they are clearly erroneous. See Haskell v.
Versyss Liquidating Trust, 75 Mass. App. Ct. 120, 125 (2009).
However, the judge's interpretation of the meaning of the
restriction's terms and provisions is a question of law. See
Sullivan v. O'Connor, 81 Mass. App. Ct. 200, 204–205 (2012).
See also Weston Forest & Trail Ass'n, 66 Mass. App. Ct. at 661
(conservation restrictions interpreted like deeds). We review
the judge's conclusions of law de novo. Casavant v. Norwegian
Cruise Line, Ltd., 460 Mass. 500, 503 (2011).
1. Breach of restriction. Wildlands Trust's primary
argument on appeal is that the judge incorrectly interpreted
section III.B.3 of the restriction, which specifies the classes,
conferences, and retreats that may be held on the premises in
exchange for a fee. Although conservation restrictions have
some unique features, they are interpreted in the same manner as
other recorded instruments. See Weston Forest & Trail Ass'n, 66
Mass. App. Ct. at 661. The judge must "give effect to the
intent of the parties as manifested by the words used,
interpreted in the light of the material circumstances and
pertinent facts known to [the parties] at the time it was
executed" (citation omitted). Chatham Conservation Found., Inc.
v. Farber, 56 Mass. App. Ct. 584, 590 (2002). See Weston Forest
& Trail Ass'n, supra. Given their conservation purposes,
13
restrictions "must be construed beneficially, according to the
apparent purpose of protection or advantage . . . [each] was
intended to secure or promote" (citation omitted). Maddalena v.
Brand, 7 Mass. App. Ct. 466, 469 (1979). See Parkinson v. Board
of Assessors of Medfield, 398 Mass. 112, 113 n.1 (1986). This
does not mean, however, that a restriction should be read in a
manner that is inconsistent with the plain meaning of its
language. See Goldmuntz, 38 Mass. App. Ct. at 699. "[A]s with
any contract, we 'must construe all words that are plain and
free from ambiguity according to their usual and ordinary
sense.'" Boston Redev. Auth. v. Pham, 88 Mass. App. Ct. 713,
717-718 (2015), quoting Suffolk Constr. Co. v. Lanco Scaffolding
Co., 47 Mass. App. Ct. 726, 729 (1999).
We now apply these principles to the restriction at issue.
Section III.B.3 states that "[t]he Premises may be used for
classes, conferences, and retreats, all consistent with the
Purposes set forth in Section II." Section II of the
restriction describes its purpose, which is to "protect[],
preserve[] and conserve[] in perpetuity [the] predominately
natural, scenic, wooded and open space condition [of the
Premises]," as well as the "bird, plant and wildlife
populations" and "the aesthetic and ecological condition of the
Premises." Section II further states, inter alia, that the
restriction is intended to "prevent those activities that would
14
materially impair or harm the Premises or conservation interests
that are the subject of this . . . Restriction, or in any manner
conflict with the maintenance of the Premises in its existing
natural, scenic, wooded, open space condition." In other words,
the purpose of the restriction is to preserve the land in its
natural state, and "[i]nherent" in that purpose "are
environmental concerns." Chatham Conservation Found., Inc., 56
Mass. App. Ct. at 590. Construing section III.B.3 according to
its plain meaning and consistent with the conservation purposes
of the restriction, Cedar Hill is permitted to rent the premises
for classes, conferences, and retreats provided that they do not
materially impair or harm the wildlife, aesthetics, or ecology
of the premises or alter its natural, scenic, wooded, and open
space condition. It thus follows that classes, conferences, and
retreats that would materially impair or harm these conservation
concerns are prohibited.
Here, the judge conflated section III.B.3 with unrelated
language from section III.B.1, which permits the use of the
premises "for the quiet enjoyment of nature" under certain
circumstances. Section III.B.3 permits rental of the premises
for classes, conferences, and retreats for purposes consistent
with section II, but not for quiet enjoyment. We attach meaning
to the different language in sections III.B.3 and III.B.1. See
MacDonald v. Hawker, 11 Mass. App. Ct. 869, 872-873 (1981),
15
quoting Crimmins & Peirce Co. v. Kidder Peabody Acceptance
Corp., 282 Mass. 367, 375 (1933) ("we bear in mind that '[i]t is
to be presumed that parties employ all the provisions and
phrases of a written contract with the purpose that each has an
appropriate meaning. In interpreting contracts every word is to
be given force so far as practicable'"). See also Whitecap
Int'l Seafood Exporters, Inc. v. Eastern Ins. Group, LLC, 97
Mass. App. Ct. 578, 586 n.10 (2020). If the parties had
intended to allow Cedar Hill to charge fees for classes,
conferences, and retreats to those who wished to quietly enjoy
the premises, they could have crafted language that so provided.
Instead, the restriction as written authorizes fees only for
classes, conferences, and retreats that are consistent with the
conservation purposes of the restriction.10
10The judge incorrectly stated in his findings that "the
conservation restriction allows Cedar Hill to charge fees for
classes, conferences, or retreats that, at least in material
part, involve the quiet enjoyment of the aesthetic or ecological
condition of the property and that are consistent with the
purposes that are laid out in the conservation restriction."
The judge then declared in the judgment that the restriction
"allows classes, conferences, or retreats . . . that at least in
material part involve or promote the preservation, protection,
study, or quiet enjoyment of the bird, plant, and wildlife
populations or the aesthetic or ecological condition of the
Premises, without materially impairing any of these conservation
interests."
16
We nonetheless affirm the judge's finding that Cedar Hill's
retreat rentals did not constitute a breach of the restriction.
Wildlands Trust's argument to the contrary rests on a narrow
reading of section III.B.1 that would limit retreat rentals to
those that affirmatively promote conservation. That
interpretation ignores the restriction's plain language and
stated intent. As discussed, section II states as one of the
restriction's purposes the intention that the restriction "will
prevent any use of the Premises other than for the intention
mentioned above or the permitted uses described in Section
[III.B] below," as long as such uses do not include "activities
that would materially impair or harm the Premises or
conservation interests that are the subject of this . . .
Restriction, or in any manner conflict with the maintenance of
the Premises in its existing natural, scenic, wooded, open space
condition." (Emphasis added.) Neither this language nor any
other provision dictates, as Wildlands Trust claims, that "such
uses are allowed only if they are focused on 'preserv[ing] and
protect[ing]' the land."
Under the proper interpretation of the restriction, the
evidence at trial did not show that the retreats held at the
premises were inconsistent with the "[p]urposes set forth in
Section II" of the restriction. Specifically, the evidence did
not show that any retreat or conduct at any retreat was
17
inconsistent with the protection, preservation, and conservation
in perpetuity of the premises "in its predominately natural,
scenic, wooded and open space condition." The evidence likewise
did not show that the retreats or conduct at any retreat was
inconsistent with the preservation or protection in perpetuity
of "the bird, plant and wildlife populations on the Premises,
and . . . the aesthetic and ecological condition of the
Premises." Indeed, much of the evidence was to the contrary.11
Although there is a measure of persuasiveness to Wildlands
Trust's argument that the sheer number of retreat rentals Cedar
Hills hosts each year threatens to negatively impact the
premises, or is inconsistent with the purposes of the
restriction, the evidence at trial did not establish such harms
11 Although we discern no ambiguity in the terms of the
restriction, to the extent any terms may be equivocal, we note
that Wildlands Trust's interpretation of the restriction also
ignores the evidence of the circumstances surrounding its
execution. See Winchester Gables, Inc. v. Host Marriott Corp.,
70 Mass. App. Ct. 585, 591 (2007) ("[W]here a contract is so
expressed as to leave its meaning obscure, uncertain or
doubtful, evidence of the circumstances and conditions under
which it was entered into are admissible, not to contradict,
enlarge or vary its terms by parol, but for the purpose of
ascertaining the true meaning of its language as used by the
parties" [citation omitted]). When the restriction was being
negotiated, all parties were aware that Ballou Channing had been
using the premises for retreats. That retreats are one of the
restriction's few categories of permitted uses suggests that the
parties wanted to preserve the ability of Ballou Channing and
its successors to host such retreats. The conservation purposes
of the restriction were thus protected by prohibiting retreats
to the extent they impaired the purpose of the restriction.
18
from such use. Instead, Wildlands Trust focused at trial on the
nature of the rentals and their lack of any charitable or
conservation purpose. That evidence did not establish that
Cedar Hills overused the premises such that it "materially
impair[ed] or harm[ed]" the wildlife or aesthetic and ecological
condition of the premises, or altered its "predominately
natural, scenic, wooded and open space condition." Accordingly,
the judge did not err in determining that Cedar Hill's use of
the premises for family or business retreats did not constitute
a breach of the restriction.
2. Waiver. Wildlands Trust argues that the judge erred
when he found that it had waived its right to challenge retreat
rentals that occurred before 2016 because (1) the defense of
waiver is inapplicable to claims advancing public rights, and
(2) the judge ignored the antiwaiver provision in the
restriction. Here, even assuming that the judge erred in
concluding that Wildlands Trust had "waived" some of its claims,
we do not vacate the judgment because we agree with the judge's
alternative holding that none of the pre-2016 rentals
constituted a breach of the restriction. Wildlands Trust's
claims relating to pre-2016 rentals depend upon its narrow
reading of the restriction, a reading we reject, supra. Because
the restriction permits overnight retreat rentals to business
and family groups, Wildlands Trust cannot prevail on the merits
19
of its claims related to pre-2016 rentals, even if it had not
"waived" them.12
3. Cease and desist provision. Wildlands Trust also
argues that the judge erred when he found that Cedar Hill's
decision to continue to use the premises for overnight retreats,
pending resolution of the parties' dispute, did not constitute a
material breach of the restriction. According to Wildlands
12We note that equitable defenses such as waiver may not be
available in actions of this kind because holders of
conservation restrictions file suit to protect a public, not
private, right. See Weston Forest & Trail Ass'n, 66 Mass. App.
Ct. at 657-660 (laches and estoppel inapplicable to claims by
grantee enforcing conservation restriction because restriction
protects public benefit). Assuming a waiver defense is
available, the better approach in the context of analyzing a
conservation restriction is for a judge to consider what impact,
if any, the restriction's antiwaiver clause had on his analysis,
prior to making a finding of waiver. We further note that
"[u]nder the common law of contracts, waiver is the 'intentional
relinquishment of a known right'" (citation omitted).
BourgeoisWhite, LLP v. Sterling Lion, LLC, 91 Mass. App. Ct.
114, 119 (2017). "Waiver may occur by an express and
affirmative act, or may be inferred by a party's conduct, where
the conduct is 'consistent with and indicative of an intent to
relinquish voluntarily a particular right [such] that no other
reasonable explanation of [the] conduct is possible.'" KACT,
Inc. v. Rubin, 62 Mass. App. Ct. 689, 695 (2004), quoting
Attorney Gen. v. Industrial Nat'l Bank, 380 Mass. 533, 536 n.4
(1980). Whether a party has waived a provision of a contract --
either expressly or implicitly -- is a question of fact. See
M.J.G. Props., Inc. v. Hurley, 27 Mass. App. Ct. 250, 252
(1989). While an antiwaiver clause is not dispositive, fact
finders must decide the question of waiver "in light of all the
circumstances, including the existence of the antiwaiver
clause." Id. See Corcoran Mgt. Co. v. Withers, 24 Mass. App.
Ct. 736, 745-746 (1987) (noting that antiwaiver provision was
"very important" to trial judge's waiver analysis).
20
Trust, the judge's "interpretation nullifies a key provision in
the Restriction."
By its plain language, section IV.A of the restriction
requires that, upon receipt of a violation notice, Cedar Hill
must "immediately cease the activity constituting the violation"
and either (1) "promptly restore the [premises] to its [prior]
condition" or (2) "provide a written explanation to [Wildlands
Trust] of the reason why the alleged violation should be
permitted." We disagree with the claim that the judge's
interpretation of the "immediately cease" language of section
IV.A rendered the provision a nullity. The judge explicitly
focused his analysis of the cease and desist provision on "past
violations that are asserted in this suit by Wildlands Trust,"
rather than future violations.13 Contrary to Wildlands Trust's
claim, nothing in the judge's decision prevents Wildlands Trust
from enforcing the cease and desist provision going forward.
Should Cedar Hill violate the restriction in the future and fail
13As to the alleged past violations, we recognize the
judge's concern that Wildlands Trust's proffered interpretation
of the cease and desist provision was untenable because "[i]t
would mean that Wildlands Trust could issue a written notice of
violation based on . . . a purely fanciful reading of the
conservation restriction." Nevertheless, the restriction must
be read in accordance with its plain language. As the judge
noted, going forward, a notice of alleged violation from
Wildlands Trust, followed by Cedar Hill's failure to immediately
cease the challenged activity, may result in a different
outcome, pending the specific facts at issue.
21
to immediately cease the challenged use, Wildlands Trust has the
ability to seek a preliminary injunction or other immediate
equitable relief. See, e.g., Smith v. Westfield, 478 Mass. 49,
53 (2017) (judge granted preliminary injunction preserving land
as playground pending decision whether city could convert land
to school). See also G. L. c. 184, § 32 (conservation
"restriction may be enforced by injunction or other
proceeding"). We note that the record before us does not
reflect that Wildlands Trust sought an immediate preliminary
injunction or emergency equitable relief, further underscoring
that the judge's analysis does not apply to situations where
Wildlands Trust is seeking equitable relief before there has
been a decision on the merits of any claim for an alleged
violation of the restriction.14
Even assuming, arguendo, that Cedar Hill's failure to cease
its alleged violations during the pendency of the parties'
14We note that section IV.B of the restriction states that
"[t]he parties agree that any enforcement action will not be
undertaken until the parties have completed dispute resolution
procedures set forth in Section IV (F)" of the restriction.
That provision requires the parties to negotiate "directly with
each other" and, in the event they are unable to resolve their
dispute, "to participate in at least three hours of mediation."
We recognize that the cease and desist provision in section IV.A
and the dispute resolution provision might lie in uneasy
tension. We also recognize the potential tension between these
provisions and G. L. c. 184, § 32. That notwithstanding, these
issues have not been briefed by the parties, and we need not
resolve here how they may interact in other circumstances.
22
dispute violated the restriction, Wildlands Trust cannot prevail
on its claim for breach of section III of the restriction,
because Cedar Hill's use of the premises for retreats was found
to be a permitted use. The record reflects that Wildlands Trust
did not establish material impairment or harm to the premises
due to unpermitted use during the pendency of the dispute, and
Wildlands Trust cannot establish the damages element of its
claim for breach of the restriction. See, e.g., Bulwer v. Mount
Auburn Hosp., 473 Mass. 672, 690 (2016) ("To prevail on a claim
for breach of contract, a plaintiff must demonstrate [inter
alia] that . . . the plaintiff suffered harm as a result [of the
breach]").15
4. Burden of proof. Wildlands Trust argues that the judge
misallocated the burden of proof at trial. Specifically, it
contends that the judge should have placed the burden on Cedar
Hill to prove that its use of the premises was a permitted use
under the terms of the restriction. This argument is waived.
To preserve a claimed error for appellate review, a party
must make "a specific objection on point" before the trial
15In its appellate brief, Wildlands Trust does not argue
that Cedar Hill's breach of section IV.A's procedural
requirements, standing alone, entitles Wildlands Trust to
nominal damages and attorney's fees under section IV.B,
notwithstanding our determination that Cedar Hill did not
violate section III's substantive provisions. We therefore need
not decide whether such a procedural violation by itself would
entitle Wildlands Trust to attorney's fees.
23
judge. Matsuyama v. Birnbaum, 452 Mass. 1, 35 (2008). The
objection "must be made sufficiently timely so that the judge
can reflect upon the objection and correct [any] mistake."
Anderson-Mole v. University of Mass., 49 Mass. App. Ct. 723, 726
(2000). Here, Wildlands Trust did not timely raise any concerns
about the judge's allocation of the burden of proof until after
the judge announced his findings of fact and conclusions of
law.16
Conclusion. We conclude that none of Wildlands Trust's
arguments warrant reversal. The case is remanded for the
modification of the judgment consistent with this opinion, and
as so modified, the judgment is affirmed.
So ordered.
16Contrary to Wildlands Trust's argument, the record
reveals that the parties approached and tried the case in a
manner consistent with the understanding that the burden rested
with Wildlands Trust.