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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 

 

4 We 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 

 

10 The 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 

 

12 We 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 

 

13 As 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' 

 

14 We 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 

 

15 In 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.

 

16 Contrary 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.