EDWARD A. LEBLANC vs. BOARD OF APPEALS OF DANVERS & another. [Note 1]

DREBEN, J. Although the plaintiff's lot, as shown on a recorded plan, fronts on a way, the portion of the way serving the lot is as yet unconstructed. This is an appeal from the entry of summary judgment for the plaintiff declaring that his lot has the requisite frontage to be protected for zoning purposes under the first sentence of the fourth paragraph of G. L. c. 40A, Section 6, as appearing in St. 1975, c. 808, Section 3. [Note 2] The

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judgment reversed the decision of the board of appeals (board) which upheld the denial of a building permit by the building inspector on the ground that the lot did not meet the requirements of the town's zoning by-law. We affirm the judgment.

We take our facts from the agreed statement filed by the parties and from the decision of the judge. The lot, known as 44 Lafayette Avenue in Danvers, was created by a plan recorded in 1925. It has an area of 8,260 square feet and had fifty-six feet of frontage on Lafayette Avenue as shown on the plan. The first zoning by-law of the town took effect on July 29, 1946, and established a minimum frontage requirement of eighty feet and a minimum area of 8,000 square feet in the district in which the lot is located.

Prior to the effective date of the 1946 by-law, the lot was conveyed to James and Barbara McDermott by deed recorded May 24, 1946. During the time they owned the property, the McDermotts did not own any land adjoining the lot. By deed recorded on January 9, 1968, the McDermotts conveyed the lot to the plaintiff. [Note 3]

In 1962, the town accepted Lafayette Avenue as a public way to a point approximately fifty-five feet short of the plaintiff's lot, and some time later, the pavement was extended approximately thirty-five feet beyond the public way to serve the lot adjoining the plaintiff's. The portion of Lafayette Avenue shown on the 1925 plan fronting on the plaintiff's lot has not been constructed.

In 1981, the plaintiff submitted a proposal to the planning board of the town for the construction of the remaining portion

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of Lafayette Avenue. The planning board approved the plan subject to two construction-related conditions and subject to obtaining a dimensional variance from the board of appeals.

The plaintiff obtained a variance in 1981, [Note 4] the board of appeals noting that there was evidence presented "that the subject lot was created by a subdivision approximately 55 years ago and that all the adjoining lots have been developed and are being used." The board's decision which was issued prior to Adamowicz v. Ipswich, 395 Mass. 757 (1985), see note 3, supra, indicated that the lot was not exempt under G. L. c. 40A, Section 6, "because [the plaintiff] formerly owned two adjoining lots."

Subsequent to Adamowicz, the plaintiff sought a ruling from the building inspector that the lot was exempt under G. L. c. 40A, Section 6. The inspector denied the permit in 1988, and on appeal by the plaintiff, the denial was upheld by the board. The board reasoned that since the portion of Lafayette Avenue abutting the subject property was not constructed, it could not be considered a "street" [Note 5] as defined in the zoning by-law and hence could not provide the requisite frontage.

The defendants take the same position on appeal as they did in the Land Court, and argue that the frontage requirements under the subdivision control law, G. L. c. 41, Section 81L, [Note 6]

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for purposes of obtaining an "approval . . . not required" endorsement under G. L. c. 41, Section 81P, should, by analogy, determine whether a lot is protected as a buildable lot under G. L. c. 40A, Section 6. See note 2, supra. This argument fails to recognize that the purposes of G. L. c. 41, Section 81P, and G. L. c. 40A, Section 6, are different. The zoning provision "is concerned with protecting a once valid lot from being rendered unbuildable for residential purposes, assuming the lot meets modest minimum area (at least 5,000 square feet) and frontage (at least fifty feet) requirements." Sturges v. Chilmark, 380 Mass. 246, 261 (1980). On the other hand, a principal object of the subdivision control law is to "ensure efficient vehicular access to each lot in a subdivision." The "statute relieves certain divisions of land of regulation and approval by a planning board (`approval . . . not required') [where] . . . the vital access is reasonably guaranteed in another manner." Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144, 151 (1983), quoting from Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807 (1978).

Nothing in c. 40A, Section 6, requires that the exclusions of Section 81L be the only method of ensuring adequate access to the

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lot. The parties recognize that the subdivision control law is inapplicable to this lot because of G. L. c. 41, Section 81FF, and, as the judge found, "[b]oth admit the right of the town to impose, as to a lot predating the subdivision control law, requirements as to the construction of ways and the installation of municipal services." See Toothaker v. Planning Bd. of Billerica, 346 Mass. 436, 440 (1963). The plaintiff concedes that he must first construct the way before the building permit is issued.

To define frontage in c. 40A, Section 6, by importing the criteria of c. 41, Section 81L, would not serve the purpose of "protecting a once valid lot from being rendered unbuildable." See Sturges v. Chilmark, 380 Mass. at 261. Such a construction is not necessary to insure the interests of the planning board which, as indicated above, was satisfied with the plaintiff's proposal for the road (subject to two modifications) and would needlessly and drastically reduce the value of the plaintiff's lot and his existing right of way. [Note 7] Cf. Toothaker v. Planning Bd. of Billerica, 346 Mass. at 440. Cf. also Jenckes v. Building Commr. of Brookline, 341 Mass. 162, 164-165, 166 (1960). In sum, we agree with the judge's opinion, that "[w]here [the] plaintiff is content to abide by the town's regulations as to construction of ways, his rights as to his lot under the zoning act should not depend on the timing of construction of the way."

Judgment affirmed.