## Facts

- A conservation restriction approved and recorded in 1974 burdened most of an eight-acre parcel in Weston, Massachusetts, and was held for the benefit of Weston Forest and Trail Association, Inc. (WFTA).
- The restriction applied to all but 60,000 square feet of the parcel; a recorded plan delineated the boundary between restricted and unrestricted areas.
- The restriction’s purpose was to preserve the land in a “predominantly natural and undeveloped condition.”
- The restriction prohibited “construction or placing of any buildings … or other structures” in the restricted area and limited use to agricultural, farming, or outdoor recreational purposes that keep the land predominantly natural.
- The restriction reserved limited rights related to agriculture, including grazing, certain clearing and burning for livestock/agricultural activities, and construction and maintenance of fences.
- Beth Ellen Fishman acquired the property subject to the restriction and constructed a barn in the restricted portion of the land.
- WFTA sued in the Massachusetts Land Court to enforce the restriction; the Land Court granted summary judgment to WFTA and ordered removal of the barn.
- Fishman appealed; WFTA sought costs and fees, arguing the appeal was frivolous.

## Issues

1. Whether constructing a barn in the restricted area violated the conservation restriction’s express ban on buildings despite language permitting agricultural and farming uses.
2. Whether the restriction’s reserved agricultural rights implicitly authorized a barn in the restricted area.
3. Whether any genuine dispute of material fact (including the barn’s location relative to the boundary) precluded summary judgment.
4. Whether the appeal was frivolous such that appellate costs or fees should be awarded.

## Decision

- The Massachusetts Appeals Court affirmed summary judgment for WFTA and the order requiring removal of the barn.
- The court held the barn violated the restriction as a matter of law and that there was no genuine issue of material fact.
- The court denied WFTA’s request for sanctions, concluding the appeal was not frivolous.

## Legal Principles

- Conservation restrictions are enforced according to their plain language and stated conservation purpose.
- Permission to use restricted land for agricultural or recreational purposes does not, without express authorization, create an implied right to erect buildings where the restriction expressly prohibits buildings and structures.
- Reserved rights in a conservation restriction are construed narrowly and will not be expanded to allow structures inconsistent with preserving land in a predominantly natural and undeveloped condition.
- Summary judgment is proper when the material facts (including the location of the challenged structure within the restricted area) are undisputed and the dispute turns on interpretation of the recorded restriction and plan.

## Conclusion

The court enforced the recorded conservation restriction as written, holding that agricultural-use language and limited reserved rights did not permit construction of a barn in the restricted area; it affirmed summary judgment and the removal order while declining to impose sanctions for a frivolous appeal.


Weston Forest & Trail Ass’n, Inc. v. Fishman, 849 N.E.2d 916 (Mass. App. Ct. 2006)