Nature of the Case
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Facts
Elizabeth Mills owned twenty-four acres of land in the center of D. After she fell ill, her daughter, Shirley Parker, attempted to sell the property. Two local developers made offers to Parker with the intent to subdivide the property into multiple building lots. Before she had acted upon either offer, Louis Fineman and P, both residents of D, approached Parker about purchasing the entire tract for $300,000, with the intention to sell it to D rather than develop it. P approached D with their proposal to purchase the property and then sell it to D. D stated it would be willing to purchase only eighteen acres because it could not afford the entire tract. The FIN-LYN Trust was established with P as the trustee. On February 1, 1985, the property was conveyed to P, as Trustee, by deed. On March 25, 1985, D signed an approved subdivision plan for the property, also recorded in the Hillsborough County Registry of Deeds, which depicted an eighteen-acre parcel, Lot 7-237, and six one-acre building lots, Lot 7-237-1 through Lot 7-237-6, intended for single-family use. P sold the six building lots on May 1, 1985, and engaged in negotiations with D relative to the eighteen-acre lot. P insisted that the eighteen-acre parcel be used only for municipal buildings and that D set up a committee to study the development of town offices on the property. D agreed to purchase the eighteen-acre parcel for $180,000, subject to a number of restrictive covenants. It provided, in part: (6) All buildings to be constructed on the land hereby conveyed shall be of Colonial architecture and shall be architecturally consistent with each other. No building shall have a flat or single-pitch roof and no building shall exceed two stories in height, excluding the basement. (There were other minor requirements as well such as tree planting and a stone wall.) The land was conveyed to D subject to and has the benefit of easements, restrictions, agreements, and reservations of record. The deed did not specify whether the restrictions were intended to be in gross or appurtenant, and likewise did not specify a means of enforcing the restrictive covenants, such as a right of re-entry or reverter. In March 2012, D voted to approve the construction of a new fire station on the Village Green. The design was proposed in 2011. It was observed, “that all of the deed restrictions and covenants encumbering the property had been covered in the proposed design; every [criterion] of the deed had been met.” D described the proposed fire station as being “designed in a traditional New England fashion, with pitched roofs, clapboard siding and double hung windows.” P disagreed and advised the Board of Selectmen that the proposed fire station did not comport with the restrictive covenants in the deed to D. P filed a writ on April 20, 2012, in superior court. At oral argument before this court, D represented that construction of the fire station had been completed. P petitioned the court for declaratory and injunctive relief, claiming that: the proposed fire station would violate the restrictive covenants because it is not of “Colonial architecture,” in whole or in part, and has, in whole or in part, a flat roof; D failed to plant a dense row of trees along the southern boundary of the Village Green; and D violated the covenants by failing to fully reconstruct and maintain the stone wall along Marsh Road. D moved to dismiss claiming P lacked standing to enforce the restrictive covenants because P no longer owned any land near the Village Green. P responded that the covenants are in gross and he is able to enforce them. The court ruled that aesthetic concerns “cannot be considered legitimate where [P] does not own any nearby property.” P appealed and argues that since the Trust had already divested itself of its other property at the time of the conveyance to D, it is clear that the parties did not intend the covenants to benefit a particular parcel of nearby land, but rather the residents of the community, independent of the ownership of any particular parcel. D argues that the rules of deed construction favor appurtenant restrictions and that restrictive covenants may be in gross only if the deed clearly states that the covenants created are in gross.
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