American Venture 594 Corp. v. A. Russo & Sons, Inc.
American Venture 594 Corp. v. A. Russo & Sons, Inc.
Opinion of the Court
The defendants, A. Russo & Sons, Inc., and Michael Russo, as trustee of the Oigo A. Russo Real Estate Trust (collectively, Russo), appeal from a Land Court judgment entered for the plaintiff, American Venture 594 Corporation (Venture).
On appeal, Russo claims the Land Court judge erred by (a) ruling that the easement restrictions in the agreement were binding upon it indefinitely; (b) vacating the relief issued by the board in 2007, which scrapped those restrictions; and (c) finding that Venture had standing to maintain a G. L. c. 40A, § 17, action. We affirm.
Facts. The material facts are not in dispute. At issue are the legal consequences derived from the agreement and the related agreement for judgment. The case, though framed nominally in a zoning context, reduces to a contract dispute about the meaning of the language in these documents.
Venture owns a commercial building on Pleasant Street in Watertown (town), which abuts a narrow private way. That way offers the only means of vehicular access available to Venture and its building tenants to and from Pleasant Street.
In 1998, after a public hearing, the board issued zoning relief to Russo, allowing it to (a) expand its facility; (b) use its property for wholesale and retail trade; and (c) install improvements to infrastructure elements of its business, including the private way. Venture then filed an action in the Land Court, appealing the board’s grant of relief to Russo. Venture claimed its rights as an abutter had been prejudiced in that the increased truck traffic serving Russo’s facility would substantially interfere with its (Venture’s) shared easement to use the way. While the case
As is material here, Venture stipulated in the agreement that it would support Russo’s application to the board for modification of the disputed zoning approvals, allowing an expansion of its facilities and parking. Among other consideration, Russo agreed its usage of the private way “shall be limited” as detailed in paragraph 3:
“[Russo] may use the Way for semi-trailer truck traffic use between the hours of 9:00 p.m. and 4:00 a.m. only. [Russo] shall not use the Way for its box truck fleet except for (a) periods when other access routes to or from the [Russo] Property are blocked; or (b) sporadic or occasional use not to exceed five (5) trips per day in or out from the Property.”
The land use restrictions in paragraph 3 were for the exclusive benefit of Venture. The parties incorporated the agreement into an agreement for judgment, which was entered in the Land Court action resolving the claims between them.
As had been contemplated by the agreement, Russo submitted another application to the board, and facing no opposition, it obtained the relief sought. The board’s decisions granting the relief to Russo were grounded on an express condition, i.e., condition number 13, a product of the negotiated settlement, which provides as follows:
“[Russo] shall comply with those provisions of a Settlement Agreement entered into with [Venture] in September of 1999 that relate to Russo’s use of the private way abut*773 ting the west side the property. [Russo] shall inform the Zoning Enforcement Officer of any changes in the terms of the Settlement Agreement regarding Russo’s use of the private way and/or of any litigation brought concerning the Settlement Agreement or [Russo’s] use of the private way.”
In June of 2006, Russo filed several petitions to amend its special permits, and for a variance, to expand its operations and facilities. It was Russo’s request to the board to remove condition number 13 from existing and future zoning approvals that triggered the current dispute.
Specifically, over a span of months between 2006 and 2007, public hearings were held by the board on Russo’s application for zoning relief. Venture’s president spoke in opposition. He pointed out to the board that the terms and conditions of the agreement barred the relief sought by Russo’s application. The board granted Russo the relief and removed condition number 13 from all approvals.
By its complaint and summary judgment motion, Venture alleged that the restrictions set forth in paragraph 3 were enforceable against Russo indefinitely. This was, Venture argued, consistent with the parties’ own stipulation that the agreement be “binding on their successors and assigns,” without qualification. Russo held to a view that the limitations of paragraph 3 remained in force only for so long as the related 1999 zoning approvals were in effect; relying on the board’s actions in 2007 in allowing zoning relief and removing condition number 13, Russo argued that the limitations of paragraph 3 no longer were enforceable.
On summary judgment, the judge ruled that the agreement was an unambiguous contract, the provisions of which clearly restricted Russo’s use of the private way. The judge vacated the zoning relief that issued to Russo in 2007 on the ground that the board erroneously had found that the restrictions on Russo’s use of the way no longer obtained.
Discussion. Review of a grant of summary judgment is de novo. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.l (1997). The evidence under Mass.R.Civ.P. 56, 365
A. Standing. The judge’s finding that Venture had standing under c. 40A
B. Agreement. The terms of the agreement — a contract subject to the usual rules of interpretation — are unambiguous.
The interpretation advanced by Russo that the use restrictions in paragraph 3 are not enforceable cannot be sustained.
Judgment affirmed.
Venture’s complaint also raised a claim of violation of G. L. c. 93 A, which the judge dismissed and which we do not address because Venture did not appeal the dismissal. In any event, the Land Court does not have subject matter jurisdiction over c. 93A claims. See G. L. c. 93A, § 9(1).
Since 1999, other businesses have leased space in Venture’s building, largely for garaging their fleets of commercial vehicles that service customers in the various surrounding communities.
“[A]n agreement for judgment is a separate and valid contract whereby the parties make a ‘free, calculated and deliberate choice to submit to an agreed upon decree rather than seek a more favorable litigated judgment.’ ” Kelton Corp. v. County of Worcester, 426 Mass. 355, 359-360 (1997), quoting from Thibbitts v. Crowley, 405 Mass. 222, 227 (1989).
Only a person “aggrieved” may obtain zoning relief through the administrative and judicial appeal process. G. L. c. 40A, §§ 8, 17. See Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996); Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999, 1000 (1984). A party must offer evidence demonstrating a “plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989).
The language employed therein does not raise a triable issue as to meaning for which reasonable minds might differ. See Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999) (language ambiguous if facially inconsistent or capable of supporting reasonable difference of opinion as to meaning of words employed and obligations undertaken).
Cf. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). In Rufo, the United States Supreme Court ruled that a party who seeks to modify an otherwise valid consent decree must show both “a significant change in circumstances” as to the facts or governing law, which would warrant a revision of the decree, and that the “proposed modification is suitably tailored” to the changed circumstances. Id. at 383-384. No showing has been made of a frustration of purpose or unforeseen change of circumstances that might provide a basis for relief along the line requested by Russo.
“The obligation between those who hold separate or common easements over the same land is that they act reasonably in the exercise of their privileges so as not to interfere unreasonably with the rights of other easement holders.” Cannata v. Berkshire Natural Resources Council, Inc., 73 Mass. App. Ct. 789, 797 (2009). See generally Restatement (Third) of Property (Servitudes) § 4.12 (2000). Russo admits that, should the agreement be declared not legally enforceable, it will use the private way for both semi-trailer and box truck access, to and from its site at all times, contrary to the express restriction set forth in paragraph 3. Such a result, Venture alleges, will adversely impact the market value of leased space within its own building, due to a marked increase in truck traffic on the way.
The parties make little mention of the preclusive effect of their agreement for judgment, but they “are as much bound by the legal effect of the judgment as if it were the outcome which a court would have reached had the issues disclosed by the pleadings been fully tried and decided.” Ansara v. Regan, 276 Mass. 586, 589 (1931). See Macheras v. Syrmopoulos, 319 Mass. 485, 486 (1946). In this subsequent dispute between the very same parties,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.