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14-P-222 Appeals Court

NANTASKET BEACHFRONT CONDOMINIUMS, LLC vs. HULL REDEVELOPMENT 

AUTHORITY.

No. 14-P-222.

Plymouth. November 7, 2014. - June 5, 2015.

Present: Rapoza, C.J., Milkey, & Hanlon, JJ.

Contract, Performance and breach, Implied covenant of good faith 

and fair dealing, Damages, Provision for liquidated 

damages, Termination. Practice, Civil, Summary judgment, 

Damages, Waiver. Redevelopment Authority. Administrative 

Law, Conflict of interest. Conflict of Interest. Public 

Employment, Unethical conduct. State Ethics Commission.

Waiver. Damages, Breach of contract, Liquidated damages.

Civil action commenced in the Superior Court Department on 

February 8, 2012. 

The case was heard by Robert C. Cosgrove, J., on motions 

for summary judgment.

Brian K. Bowen for the plaintiff.

Denise A. Chicoine (Edward S. Englander with her) for the 

defendant.

MILKEY, J. In 2004, plaintiff Nantasket Beachfront 

Condominiums, LLC (Nantasket) and defendant Hull Redevelopment 
2

Authority (authority) entered into a contract for the purchase 

and development of certain land in Hull. Under that "LAND 

DISPOSITION AGREEMENT" (LDA), Nantasket was to purchase the 

land, construct seventy-two units of housing, and develop a new 

public park. Subsequently, the proposed project encountered 

robust neighborhood opposition, and this in turn led to 

significant delays in the anticipated closing. Eventually, the 

authority terminated the LDA and notified Nantasket that it was 

retaining as liquidated damages $857,500 in deposits that 

Nantasket had made. This action ensued.

In a comprehensive and thoughtful decision, a Superior 

Court judge ruled in the authority's favor on summary judgment. 

He concluded that Nantasket indisputably stood in breach of the 

LDA, and that the authority was within its rights to terminate 

the agreement and to retain the deposits. On Nantasket's 

appeal, we affirm, albeit on somewhat different grounds.

Background.

1 The parties execute the LDA. In order to spur 

the development of twelve acres of land that it owned, the 

authority in October of 2003 issued a detailed "Request for 

Proposals" (RFP). According to the RFP, the property "provides 

the transition between the [State-owned] . . . Nantasket Beach 

 

1 The facts, which are largely uncontested, are drawn from 

the summary judgment record. We view the facts in a light most 

favorable to Nantasket, the nonmoving party. See Godfrey v. 

Globe Newspaper Co., Inc., 457 Mass. 113, 118-119 (2010).
3

Reservation and a major residential area of the Town of Hull 

along Nantasket Avenue." The RFP set forth a preferred 

development scenario in which approximately three-quarters of 

the land would be developed into "primarily passive public open 

space," with the rest (approximately three acres) developed as 

"residential dwelling units, or other uses, as may be acceptable 

to the [authority]." In a section entitled "Site Constraints 

and Issues," the RFP discussed the applicability of various 

environmental and land use requirements.

Only two developers submitted proposals. One was from 

Nantasket's parent company, which emphasized that, based on its 

thirty years of experience in developing residential and 

commercial projects, it was "well versed in overcoming a

multitude of tough regulatory issues and environmental 

concerns." On July 9, 2004, Nantasket and the authority 

executed the LDA, which spelled out their respective rights and 

obligations in thirty-three single-spaced pages (not including 

voluminous attachments).

Under the LDA, Nantasket would purchase the land for three

and one-half million dollars (subject to various potential 

adjustments). Nantasket would then build seventy-two units of 

housing, develop the open space, and eventually return the park 

land to public ownership and control. Nantasket's specific 

development plans were subject to its completing the authority's 
4

design review process and obtaining -- at its expense -- all 

necessary permits and other approvals (collectively termed 

"Approvals") from other State and local agencies. The closing 

date was set for thirty days after Nantasket obtained the 

Approvals, but not later than July 9, 2006 (termed the "Outside 

Closing Date"). Thus, as originally executed, the LDA 

contemplated that all necessary permitting and the closing would 

be completed within two years.

Deposits. Nantasket paid a $97,000 deposit to the 

authority at the execution of the LDA, in addition to a $25,500 

deposit it had previously paid. An additional deposit of 

$122,500 was due on August 17, 2004, bringing the total deposit 

due by that point to $245,000. Until the closing actually took 

place, additional deposit payments of $122,500 each would be due 

at the six month anniversary of the date of the LDA and the one 

year anniversary, and then "Extension Deposits" of $122,500 each 

would be due every three months after that. The LDA stated that 

if Nantasket missed any deposit payment, this "shall constitute 

a default." 

Termination rights. The LDA gave each party the right to 

terminate the agreement in certain situations. In the event 

that Nantasket defaulted on its obligations and did not achieve 

a cure of that default within thirty days of receiving written 

notice from the authority, the authority could terminate the LDA 
5

and retain all deposits paid.2 For its part, Nantasket could 

terminate the LDA and secure a return of its deposits in three

different types of scenarios. First, Nantasket was given until 

August 4, 2004, to inspect the property, and until August 16, 

2004, to inspect the title. If such inspections revealed a 

defect in either, then it could terminate the LDA within those 

respective deadlines. Second, Nantasket could terminate the LDA 

in the event that a local permitting agency prevented the 

project from going forward as planned and adjustments to the 

project or purchase price could not be agreed upon to 

accommodate the potential loss in value (this scenario was 

termed a "Local Permit Problem"). Third, if a third party 

challenged the issuance of one or more of the approvals that the 

project needed, Nantasket could terminate the LDA in lieu of 

defending the action. 

Project delays. Almost immediately, the project sparked 

significant opposition from local residents. In 2004, 

Jacqueline Chase, a direct abutter, cofounded a group to try to 

stop it. At Chase's suggestion, the group called itself "No Way 

HRA!" The project opponents used every opportunity to attempt 

to derail the project. Chase herself attended seventy local 

 

2 The thirty-day cure period could be extended if the 

default could not be cured within thirty days even with the 

exercise of due diligence. Nantasket has never argued that this 

provision applies here.
6

board meetings on the topic. After the Hull zoning board of 

appeal (ZBA) issued a special permit for the project on March 

30, 2006, six project opponents filed an action in Superior 

Court appealing the special permit pursuant to G. L. c. 40A, 

§ 17. The lead plaintiffs in that action (zoning appeal) were 

Chase and Phyllis Aucoin, another leading member of No Way HRA!.

First amendment to the LDA. Nantasket did not use the 

filing of the zoning appeal as an occasion to terminate the LDA, 

but instead elected to defend it. However, with it becoming 

increasingly obvious that Nantasket could not obtain all 

approvals by July 9, 2006 (the original Outside Closing Date), 

Nantasket requested and secured an amendment to the LDA. This 

amendment dated May 10, 2006, set a new closing date of forty 

days after Nantasket received all approvals, but in no event 

later than the earlier of: (1) ninety days after the "Appeals 

Termination Date" (set as the date that the zoning appeal and 

any other appeals of project approvals eventually were resolved 

in Nantasket's favor),

3 or (2) July 9, 2012 (the amended Outside 

 

3 The "Appeals Termination Date" was defined in full as the 

date "of the final disposition, in favor of the validity of the 

Approvals, of all appeals challenging or appealing the issuance 

of any Approval, including without limitation the Zoning Appeal, 

including the exhausting of all further appeals or the 

expiration of the time for bringing any further appeal."
7

Closing Date).4 The parties also agreed that after Nantasket 

paid the additional Extension Deposits due on July 9, 2006, and 

October 9, 2006 (bringing the total deposits held by the 

authority to $857,500), further Extension Deposits would be 

waived until the Appeals Termination Date.5 

Chase and Aucoin join the authority's board. In 2007, 

Chase and Aucoin ran for, and were elected to, the authority's 

board. Even after that, they continued their active opposition 

to the project in their personal capacity. Thus, for example, 

after a Superior Court judge in 2008 ruled in Nantasket's favor 

on summary judgment in the zoning appeal, Chase and Aucoin 

joined in appealing that decision to this court.

Second amendment to the LDA. With the continued delays, 

Nantasket requested a further extension of the Outside Closing 

Date, and also requested that Chase and Aucoin recuse themselves 

from participating in matters concerning the project. On August 

3, 2009, by a vote of three to one (with one abstention), the 

authority's board extended the Outside Closing Date to July 9, 

2015. Chase voted against the extension, while Aucoin 

abstained. 

 

4 As part of the first amendment, Nantasket expressly waived 

its right to terminate the LDA based on the filing of the zoning 

appeal.

5 The parties also agreed to reduce the purchase price of 

the land by $125,000, because of a reduction in the scope of the 

project required by the special permit.
8

The end of the zoning appeal. The zoning appeal was 

finally resolved on May 3, 2010, when a stipulation of dismissal 

was filed in this court. This removed a significant obstacle to 

the project's moving forward, but others remained. Indeed, 

changes to the project that resulted from review by the State 

Department of Environmental Protection pursuant to the Wetlands 

Protection Act, G. L. c. 131, § 40, meant that Nantasket would 

have to resubmit the project for various additional local 

approvals. Meanwhile, changes to the real estate market in the 

interim called into question the financial viability of the 

project. In fact, as Nantasket acknowledged in a letter to the 

authority dated September 10, 2010, "[t]here exists no bank 

financing available for this project, and there are no equity 

partners willing to invest in it." 

Nantasket's efforts to renegotiate the deal. Under the 

express terms of the LDA, Nantasket's inability to obtain 

financing did not constitute a force majeure event excusing its

performance. In light of the new circumstances it faced, 

Nantasket sought to renegotiate the terms of the original deal. 

In its September 10, 2010, letter, Nantasket proposed to 

construct the park improvements immediately using a portion of 

the deposit funds, with the remainder of the funds to be 

returned to Nantasket. Also, the housing would be developed in 

phases on a more long-term basis (with the hope that the housing 
9

market would improve in the interim), with Nantasket to pay a 

pro rata share of the original purchase price for each phase. 

The authority flatly rejected this proposal, and stated its view 

that "[g]iven that there is no longer any appeal pending, the 

payment of the Extension Deposits must resume." At the same 

time, the authority indicated flexibility in three areas. 

First, instead of insisting that the closing take place within 

forty days of Nantasket's receiving the approvals,6 the authority

expressed a willingness to extend the closing until November 9, 

2014. Second, the authority indicated it was open to allowing

the postclosing construction to be completed in phases (so long 

as Nantasket purchased all of the property at the closing). 

Third, the authority indicated that if a new agreement were 

reached, it would agree to have new Extension Deposits due every 

six months rather than every three.

By letter dated November 1, 2010, Nantasket countered that 

it would not agree to pay any new Extension Deposits before the 

closing. As to the existing deposit monies, Nantasket stated 

that it needed the return of $250,000 "plus the cost of 

designing and permitting the park." Nantasket also indicated 

that it could only purchase all of the property at the closing

if market rate financing was available.

 

6 The second amendment had not modified this provision but 

instead had changed only the Outside Closing Date.
10

The authority demands payment. As a result of this back 

and forth, the parties remained far apart. The authority's 

further response on November 19, 2010, brought them no closer. 

That letter rejected Nantasket's last proposal, offered no new 

proposal, and instead merely sharpened the authority's position 

that Nantasket had to resume payment of the Extension Deposits. 

In fact, the letter declared that Nantasket was already in 

default for not making additional Extension Deposit payments of 

$122,500 each on August 3, 2010, and November 3, 2010, and for 

not actively pursuing the remaining approvals for the project. 

According to the authority, if these problems were not cured 

within thirty days, this "will leave the Authority no choice but 

to declare [Nantasket] to be in default of its obligations under 

the LDA [which] . . . would allow the Authority to exercise all 

of its rights and remedies under Section 10.2 of the LDA, 

including, without limitation, the termination of the LDA and 

the retention of the deposit as liquidated damages under the 

LDA." 

In its response dated December 30, 2010, Nantasket 

underscored its continued unwillingness to resume payment of any 

additional Extension Deposits. Nantasket also stated its view 

that there were outstanding title problems that the authority 

had not cured and that this both excused Nantasket's failure to 

pay additional Extension Deposits and provided Nantasket its own 
11

basis for terminating the LDA and demanding return of the 

deposits paid to date.7 The authority responded on January 11, 

2011, by explaining its view that the title problems had been 

cured and that Nantasket had no grounds for refusing to resume 

making the Extension Deposits. It also reiterated its demand 

that such sums be paid. In a short and extremely pointed letter 

dated February 14, 2011, the authority once again demanded 

payment.

The termination of the LDA. After the demanded additional 

Extension Deposit payments were not made, the authority's board

on April 19, 2011, voted to send Nantasket a letter terminating

the LDA. Four of the five board members were present (including 

Chase and Aucoin), and the vote apparently was unanimous. The 

record reflects that before the vote was taken, the board's 

chairman, Bartley Kelly, purported to invoke the "rule of 

necessity" and that Chase and Aucoin "follow[ed]."8 No further 

 

7 Nantasket had raised some of these title issues in a 2004 

letter that was sent to the authority prior to the relevant 

deadline set forth in the LDA. The letter stated a view that 

the problems could be resolved and requested "an extension of 

the 'Title Inspection Period' for the period of time necessary 

for the parties to address these issues." It further stated 

that "[i]n the event that the Authority is unable or unwilling 

to address these issues then, most reluctantly, kindly consider 

this written notice of termination pursuant to [the relevant 

provision in the LDA]." Other of the title issues arose only 

later.

8 The "rule of necessity" is a doctrine that recognizes that 

in some circumstances, public officials who otherwise have an 
12

explanation was given. The authority sent Nantasket a letter 

formally terminating the LDA that same day. 

Discussion. Nantasket's five-count complaint relies on 

various overlapping contract-related theories. However, 

permeating Nantasket's legal claims is its overarching 

contention that the authority's actions were tainted by serious 

conflicts of interests among two or three of its five board 

members. In addition, Nantasket argues that the authority's 

proceeding to terminate the LDA in the face of those issues 

violated the covenant of good faith and fair dealing implied in 

every Massachusetts contract. See Uno Restaurants, Inc. v. 

Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). We 

begin with addressing these ethical considerations.

1. Ethical issues. As noted, Chase and Aucoin led the 

opposition to the project, and they continued that opposition 

after they joined the authority's board. Based on the 

allegations they raised in the zoning appeal and the deposition 

 

ethical duty to recuse themselves from participating in a 

particular matter nevertheless may do so if necessary for the 

public entity to act. See Boston Retirement Bd. v. Contributory 

Retirement Appeal Bd., 441 Mass. 78, 85 (2004), citing Moran v. 

School Comm. of Littleton, 317 Mass. 591, 593 (1945), and cases 

cited. By letter dated July 26, 2010, town counsel had sent a

letter to the authority's board that generally explained how the 

rule of necessity worked, and that cautioned that the rule 

should be invoked only as a "last resort" (and then only in 

accordance with certain specified procedures). The letter did 

not analyze whether any members of the authority's board in fact 

had a disqualifying conflict of interest.
13

of Chase taken in that case, Nantasket argues -- with 

significant force -- that Chase and Aucoin had a direct and 

substantial economic stake in whether this particular project 

succeeded or failed. If so, then Chase and Aucoin had a 

"financial interest" in the authority's consideration of the 

project.9 This means that unless one of the recognized 

exceptions applied, they could not participate as board members 

in matters concerning the project. See G. L. c. 268A, § 19. 

The judge noted that Chase and Aucoin had an "undisputed 

conflict of interest." Nevertheless, he seems to have concluded 

that they satisfied their ethical obligations and that they, in 

any event, did not act in bad faith. With regard to their 

failure to follow the procedures for invoking the rule of 

necessity outlined in town counsel's letter (see note 8, supra), 

the judge concluded that this did "not evidence bad faith, where 

their participation in the abutter litigation and opposition to 

the Project was [already] well known." Finally, he ruled that 

even if the vote to terminate was taken in bad faith, this was 

immaterial, because Nantasket itself was in breach of the 

contract before the vote was taken and the authority therefore 

had an express contractual right to terminate.

 

9 Whether Kelly also had a disqualifying financial interest 

is less clear because the record reveals little about his 

situation.
14

Although we agree with the motion judge that the ethical 

issues Nantasket sought to raise ultimately do not aid its 

cause, we arrive at that conclusion by a somewhat different 

path. Without resolving whether his analysis of the rule of 

necessity was correct, we note that the issues do not appear to 

be as straightforward as he suggested. As the State Ethics 

Commission (commission) has emphasized, and the authority 

acknowledges, the rule of necessity is to be invoked only "as a 

last resort." State Ethics Commission Advisory 05-05, at 841 

(2005). Under the commission's interpretation of that rule, if 

in fact there was no need for Kelly to recuse himself, then 

Chase and Aucoin could not have invoked the rule because their 

participation would not have been necessary to achieve a quorum 

(assuming the absent member could have attended a subsequent 

meeting). See Ibid.

10 Thus, any premise that Chase and Aucoin 

satisfied their G. L. c. 268A, obligations lies in at least some 

doubt.

We also question the judge's conclusion that Nantasket's 

being in default necessarily rendered any bad faith by authority 

officials beside the point. To be sure, we agree that the 

 

10 Compare Attorney Gen. v. Department of Pub. Util., 390 

Mass. 208, 215-216 (1983) (approving use of rule to avoid 

deadlock even where presence of a quorum was not an issue); 

Boston Retirement Bd., 441 Mass. at 85 (approving use of rule 

even though filling vacant board seat by the governor could have 

provided a quorum).
15

authority had no obligation to renegotiate the terms of the 

contract or to sit idly by once Nantasket defaulted (especially 

where Nantasket conceded that it could not bring itself in 

compliance due to the collapse of the housing market). At the 

same time, the authority's decision to terminate the LDA was a 

discretionary one, and parties to a contract cannot exercise 

such discretion based on improper motives.11 See Anthony's Pier 

Four, Inc. v. HBC Assocs., 411 Mass. 451, 473 (1991). It is of 

course axiomatic that public officials should not be exercising 

their authority to promote their own financial interests. 

Our recognition of these principles creates a potential 

conundrum about how to proceed. On one hand, the case law 

teaches that courts are to apply a markedly strong presumption 

that public officials act in good faith, and it casts a 

jaundiced eye toward judicial inquiries into what really 

motivated the official action.12 See, e.g., LaPointe v. License 

 

11 Put differently, the authority's right to terminate the 

LDA (based on Nantasket's breach) does not necessarily immunize 

its exercise of that right from any scrutiny.

12 This is a case where the plaintiff is challenging the 

motives behind otherwise valid government action; it is not one 

where the government actions themselves were improper. Compare 

Judge Rotenberg Educ. Center, Inc. v. Commissioner of the Dept. 

of Mental Retardation (No. 1), 424 Mass. 430, 451-459 (1997). 

In that vein, it cannot be said that the authority unfairly 

terminated the LDA in order to put itself in a better position 

than had both parties performed. Instead of receiving a total 

purchase price of $3,375,000 and the housing and park 

development that it desired, the authority was left with only 
16

Bd. of Worcester, 389 Mass. 454, 459 (1983); Brennan v. The 

Governor, 405 Mass. 390, 397-398 (1989). Such presumptions 

serve to avoid interference with the democratic process.13 In 

this regard, we note that the voters of Hull may have elected 

Chase and Aucoin to the authority's board precisely because of 

their opposition to the project. On the other hand, the 

presumption that public officials act in good faith is not 

irrebuttable, and there are exceptional cases where courts have 

invalidated an otherwise valid public action based on proof that 

the "dominant reason" the action was undertaken was an improper 

one. See, e.g., Pheasant Ridge Assocs. Ltd. Partnership v. 

Burlington, 399 Mass. 771, 777-780 (1987) (invalidating the 

taking of land for a public park, done pursuant to a town 

meeting vote, where the manifest purpose behind this was to 

block low or moderate housing at the site). Nantasket argues 

that because the summary judgment record allows the inference 

that the board members made their decision to terminate the LDA 

 

$857,000 as liquidated damages while having to restart the 

development process from scratch in the midst of an anemic 

housing market.

13 In one case, we commented that a court would not set 

aside a legislative act even upon proof that all of the 

affirmative votes were induced by bribery. See Knowles v. Codex 

Corp., 12 Mass. App. Ct. 493, 498 (1981). The Supreme Judicial 

Court has cited this dicta, although in a manner that leaves in 

some doubt its own views of the principle. See Pheasant Ridge 

Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771, 776-778

(1987).
17

for an improper reason, the ethical issues could not be resolved 

as a matter of law.

For purposes of resolving Nantasket's contract-based 

claims, it is important to keep in mind that it is the authority 

that was the party to the LDA, not individual board members. 

Municipal redevelopment authorities are liable in contract and 

tort "in the same manner as . . . private corporation[s]," and 

their officers and agents are, in the same fashion as those of 

private corporations, generally not personally liable in tort or 

contract. G. L. c. 121B, § 13, inserted by St. 1969, c. 751,

§ 1. As the Supreme Judicial Court has held in the context of a 

private corporation, individual board members' conflicts of 

interest are not imputed to actions taken pursuant to a valid 

vote of the board. See Estate of Moulton v. Puopolo, 467 Mass. 

478, 482, 488-489 (2014) (noting that the acts of the

corporation's board by valid vote and those of the corporation 

are "one and the same" even where individual board members face 

conflicts of interest). Absent evidence of bad faith on the 

part of the authority as a contracting entity, Nantasket cannot 

be heard to claim that the termination amounted to a bad faith 

breach warranting damages. 

This did not leave Nantasket without a potential remedy for 

any ethical breaches by individual board members. However, to 

follow such remedies, Nantasket would have had to file a 
18

complaint with the commission alleging violations of G. L. 

c. 268A. See G. L. c. 268B, § 4(a) (governing the filing of 

verified administrative complaints with the commission). 

Compliance with State ethical rules is now overseen by the 

commission. See Doe v. State Ethics Commn., 444 Mass. 269, 271 

(2005) (referring to the commission as "the primary civil 

enforcement agency for violations of the conflict of interest 

law, G. L. c. 268A," and noting that the commission is 

authorized "to identify and seek redress for ethics violations 

by public officials in the Commonwealth"). Thus, the commission 

regulates the conduct of municipal officials, provides guidance 

to them, and investigates whether they have violated their 

obligations under G. L. c. 268A. Doe, supra. If the commission 

determines that ethical breaches "substantially influenced the 

action taken by any municipality in any particular matter," the 

commission may order that the municipal action be "avoid[ed], 

rescind[ed] or cancel[ed]. . . upon request by said municipal 

agency." Leder v. Superintendent of Schs. of Concord & ConcordCarlisle Regional Sch. Dist., 465 Mass. 305, 311 (2013), quoting 

from G. L. c. 268A, § 21(a).14 Nantasket could have raised its 

 

14 Granted, invalidation of the municipal action is 

available only when the municipal entity requests such relief. 

However, the statute also authorizes alternative relief for a 

party who has suffered damages from an ethical breach. If the 

commission determines that a municipal official has "acted to 

his economic advantage in violation of" certain sections under 
19

ethical concerns with the commission,15 but did not do so.16 In 

the circumstances of this case, Nantasket's failure to follow 

the statutorily prescribed procedures prevents it from now 

asking a court to invalidate the LDA termination vote (or to 

seek damages from individual board members). See Leder, supra

at 313. Although the remedies provided for in G. L. c. 268A, 

are not exclusive, the statute "contemplates a primary role for 

 

G. L. c. 268A, it may award damages to the municipality and 

restitution to injured third parties (subject to various 

conditions and limitations). Leder, supra at 311 & n.10. In 

the event that the commission determines that damages exceed the 

amount it is authorized to order through administrative action 

($25,000), the commission "may bring a civil action against the 

violator to recover such damages." G. L. c. 268A, § 21(b), 

inserted by St. 2009, c. 28, § 80. Municipal officials are 

protected from enforcement by the commission if they rely upon a 

formal opinion from municipal counsel issued pursuant to G. L. 

c. 268A, § 22, so long as certain procedures are followed. See 

930 Code Mass. Regs. 1.03(3) (2012).

15 The filing of a verified complaint triggers a 

"preliminary inquiry" into any alleged violations. G. L. 

c. 268B, § 4(a), inserted by St. 1978, c. 210, § 20. If there 

is "reasonable cause for belief" that a violation has occurred, 

the commission may, upon a majority vote, initiate an 

adjudicatory proceeding. G. L. c. 268B, § 4(c), inserted by St. 

1978, c. 210, § 20.

16 Nantasket did not raise its ethical concerns with the 

commission after the 2011 termination vote. Nor did Nantasket 

prior to that vote ever seek any judicial or administrative 

adjudication whether the potentially conflicted board members 

could participate in matters related to the project. Compare 

Graham v. McGrail, 370 Mass. 133, 136-137 (1976) (concluding --

in a case that arose before the commission was created -- that a 

declaratory judgment action was available for one member of a 

school committee to address the application of G. L. c. 268A, 

§ 19). The extent to which Nantasket could have obtained such 

relief here is not before us.
20

the commission." Leahy v. Local 1526, Am. Fedn. of State, 

County, & Mun. Employees, 399 Mass. 341, 378 (1987). In the 

case before us, there are numerous unresolved issues surrounding 

whether, and to what extent, individual board members violated 

the governing statute by participating in the board's vote. 

Resolution of those issues "requires the application of the 

[commission's] expertise." Id. at 350. To the extent Nantasket 

wanted to rely on the alleged ethical breaches to make out its 

contract claim, it should have brought the issues to the 

commission in the first instance. 

 2. Merits of Nantasket's other contract-related claims. 

Stripped of this ethical overlay, resolution of Nantasket's 

underlying contract claims is relatively straightforward, at 

least based on the arguments that Nantasket raised. 

a. Nantasket's obligation to renew the Extension Deposit 

payments.

17 Once the zoning appeal was dismissed, the authority 

took the position that the Appeals Termination Date had been 

reached (there being at that moment no pending appeals) and that 

Nantasket's duty to pay additional Extension Deposits resumed 

 

17 As noted, the authority also terminated the LDA on the 

grounds that Nantasket was not diligently pursuing remaining 

permit approvals. The motion judge correctly concluded that 

there was a dispute of material fact regarding that issue. 

Therefore, like the motion judge, we will focus on Nantasket's 

compliance with the obligation to resume paying the Extension 

Deposits.
21

ninety days later (August 3, 2010).

18 Nantasket never argued in 

the trial court, nor does it argue on appeal, that this 

interpretation was incorrect.19 To the contrary, Nantasket 

itself stated in its appellate brief that "[u]nder the LDA, as 

then amended, additional $122,500 deposits were due every three 

months beginning on August 3, 2010." Therefore, any argument 

that the Appeals Termination Date did not run when the zoning 

appeal was dismissed has been waived.

b. Whether Nantasket's failure to pay the Extension 

Deposits was excused. It is undisputed that Nantasket did not 

make the Extension Deposit payments due on August 3, 2010, 

November 3, 2010, and February 3, 2011. Nantasket nevertheless 

maintains that it was not in breach, because its conduct was 

excused by the authority's own material breach of the contract. 

See Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. 

App. Ct. 599, 610 (2003). Specifically, Nantasket points to the 

fact that although the authority's board approved a second 

 

18 Strictly speaking, ninety days after the dismissal of the 

zoning appeal on May 3, 2010, would have been August 1, 2010, 

but the record reflects that both parties consistently treated 

"ninety days" as meaning three months.

19 As noted, the term Appeals Termination Date was defined 

by reference to "the final disposition . . . of all appeals 

challenging or appealing the issuance of any Approval." See 

note 3, supra, for full text. Even after the zoning appeal was 

dismissed, various approvals remained outstanding, thus allowing 

opportunities for additional appeals to be filed.
22

amendment to the LDA on August 3, 2009, it subsequently failed 

to execute a formal amendment to the LDA memorializing that 

vote.

20 To be sure, the authority's actions in this regard lie 

unexplained in the summary judgment record.21 However, also 

missing is any proof that the authority's failure to execute the 

second amendment played any material role in Nantasket's 

unwillingness or inability to resume making the required 

Extension Deposits. In fact, nowhere in the pointed exchanges 

between the parties leading up to the termination of the LDA is 

there any reference whatsoever to the authority's refusal to 

execute a formal second amendment; the parties' discussion 

instead had turned to a potential third amendment to overhaul 

the original agreement. Under these circumstances, Nantasket 

 

20 Nantasket also argues that that the authority directly 

repudiated the second amendment to the LDA. Its evidence of 

this is that in its letter of October 4, 2010, the authority 

offered to extend the closing until November 9, 2014 (which fell 

eight months before the July 9, 2015, Outside Closing Date 

already approved by the board in its vote on the second 

amendment). However, there is no direct conflict between the 

authority's offer and the second amendment, which modified only 

the Outside Closing Date, not the actual date that the closing 

was supposed to take place.

21 Because Nantasket did not conduct any discovery before 

the discovery deadline lapsed, it largely has itself to blame 

for the relatively thin state of the summary judgment record. 

The judge did not abuse his discretion in declining Nantasket's 

request to extend the discovery deadline.
23

has failed to offer sufficient proof -- even for purposes of 

summary judgment -- that its nonperformance was excused.

22 

c. Whether the parties suspended their termination rights. 

Nantasket also argues that even if its own breach allowed the 

authority to terminate the LDA and retain the deposit, the 

authority implicitly suspended its right to do so while it was 

negotiating a third amendment to the LDA. Once the authority 

engaged in such negotiations, Nantasket maintains, it owed 

unequivocal notice that negotiations had ended and a reasonable 

time to cure any deficiencies before terminating the LDA. See, 

e.g., Church of God in Christ, Inc. v. Congregation Kehillath 

Jacob, 370 Mass. 828, 833-834 (1976). According to Nantasket, 

such notice was critical because at the time, it had its own 

right to terminate the LDA and to have all its deposits 

returned.

Nantasket's arguments are not without some force. Once the 

zoning appeal was dismissed, the parties did engage in some 

substantive negotiations about remaking their original 

 

22 Nantasket also argues that because Chase and Aucoin 

should have recused themselves from participation, the authority 

violated the contractual requirement that its execution of all 

documents related to the LDA be duly authorized, valid, and 

enforceable. However, on their face, the relevant documents 

executed by the authority in relation to the termination of the 

LDA were authorized, valid, and enforceable, and, as noted, 

Nantasket has forsworn seeking to invalidate the authority's 

actions based on any alleged ethical breaches by its board 

members.
24

agreement, and in that context, the authority specifically 

showed some flexibility about the frequency with which further 

Extension Deposits would be due. In addition, Nantasket has

some argument that -- at least at the beginning of the 

negotiations over a third amendment to the LDA -- it possessed 

its own right to terminate the LDA, even if that argument could 

not be characterized as strong.23

However, the authority's position on the resumption of the 

Extension Deposits hardened over time, with the authority making 

it increasingly clear that it would terminate the LDA if the 

Extension Deposits were not paid as previously agreed. At least 

by the authority's January 11, 2011, letter, it had taken that 

issue off the table. To the extent that the authority had an 

obligation to provide unequivocal notice that Nantasket was in 

default and faced forfeiture of its deposit, the authority 

satisfied that obligation. If Nantasket felt it still retained 

its own right to terminate the LDA, this was the time to 

 

23 In the relevant time period, no permit appeals were 

pending (Nantasket having elected to defend and having 

successfully defended the zoning appeal), and there does not 

appear to have been a pending "Local Permit Problem" (as that 

term was defined in the LDA) even though Nantasket still had to 

secure some additional local approvals. Nantasket's strongest 

argument appears to be that the title issues it identified had 

not fully been cured. Because Nantasket did not terminate the 

LDA within the relevant Title Inspection Period, its ability to 

make such an argument depends on its related contention that the 

authority, by its conduct, had implicitly agreed to extend that 

period. Compare McCarthy v. Tobin, 429 Mass. 84, 88-89 (1999).
25

exercise it. Alternatively, Nantasket could have tried to 

negotiate a standstill agreement to let negotiations continue. 

It chose to pursue neither option, and cannot now be heard to 

claim that the authority's actions were procedurally unfair.

d. Liquidated damages. Finally, Nantasket argues that the 

authority's retaining the $857,500 as liquidated damages cannot 

stand because the sum is so disproportionate to the authority's 

actual damages that it amounts to an unenforceable penalty. See 

NPS, LLC v. Minihane, 451 Mass. 417, 419-420 (2008). A 

contractual liquidated damages provision is entitled to a 

presumption of validity, especially where, as here, it was 

negotiated between two sophisticated parties. The party seeking 

to invalidate a liquidated damages provision bears the burden of 

proving that it is unenforceable, and "we resolve reasonable 

doubts in favor of the aggrieved party" (here, the authority). 

Ibid. "A liquidated damages provision will usually be enforced, 

provided two criteria are satisfied: first, that at the time of 

contracting the actual damages flowing from a breach were 

difficult to ascertain; and second, that the sum agreed on as 

liquidated damages represents a 'reasonable forecast of damages 

expected to occur in the event of a breach.'" Ibid., quoting 

from Cummings Properties, LLC v. National Communications Corp., 

449 Mass. 490, 494 (2007).
26

At the time the parties executed the LDA, trying to 

calculate the amount of damages that the authority would suffer 

from a breach by Nantasket was inherently difficult, as a matter 

of both theory and practice. Therefore, the first criterion of 

the two-part test is easily satisfied. The difficulty in 

predicting such damages makes the second prong challenging to 

apply. Without attempting to demarcate the boundaries of what 

forecast would be reasonable in these circumstances, we agree 

with the motion judge that Nantasket has not met its burden of 

showing that the liquidated damages due here (which in this 

case, amounted to some twenty-five percent of the purchase price 

of the land) were so disproportionate to predictable actual 

damages as to amount to an illegal penalty.

Nantasket emphasizes that under the LDA, additional 

Extension Deposits of $122,500 were to accrue every three 

months, which allowed rapid escalation of potential liquidated 

damages as any delays mounted. However, passing over the 

foreseeability of such delays (especially by a developer that

sold itself as being experienced in overcoming regulatory 

hurdles), we note that the authority reasonably agreed to 

suspend the payment of additional Extension Deposits for over 

three-and-one-half years while the zoning appeal was pending. 

In fact, the last deposit payment that Nantasket ever made came 

on October 9, 2006 (just three months after the originally 
27

contemplated closing date). Moreover, the record makes plain 

that the dominant problem that caused Nantasket to default on 

its obligations was not the delay per se, but the intervening 

collapse of the real estate market. In sum, Nantasket cannot 

claim any substantive unfairness in the enforcement of the 

liquidated damages provision to which it freely agreed.

Conclusion. For the reasons set forth above, we affirm the 

judgment.

So ordered.