ELIZABETH MURPHY vs. JOHN KOTLIK & others. [Note 1]

KAPLAN, J. The Stoughton building and zoning inspector issued a "foundation only" building permit for property fronting on School Street owned by John and Denise Kotlik. [Note 2] Elizabeth Murphy, an immediate neighbor, appealed to the Stoughton zoning board of appeals to revoke the permit, but the board confirmed it. Murphy commenced an action in the Land Court to annul the board's decision. Upon cross motions

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by the Kotliks and Murphy for summary judgment, the trial judge held for the Kotliks. Murphy appeals to this court. We affirm the judgment.

The following appeared on the cross motions. Mary Zabrosky, owner of a conforming lot of 56,522 square feet on School Street in a single-family residence district, in 1968 deeded an unimproved eastern part of it -- called lot "1A" -- to her mother-in-law Agnes Zabrosky, retaining the balance improved by a dwelling -- lot "1." By this division, each of the lots became nonconforming: lot 1A by reason of a deficit in lot area (it had 23,556 square feet of the minimum 30,000) and lot width (seventy feet of the minimum 125 feet, measured at the front yard setback line of forty feet); lot 1 because of a deficit in lot width (lacking 12.8 of the 125 feet required at the forty-foot setback).

After the death of Agnes Zabrosky in 1978, lot 1A passed by will to a group of her relatives including the Kotliks; in 1987, the Kotliks bought the rest of the interests in the lot from the other relatives. Lot 1 came to Elizabeth Murphy by the death in 1980 of Mary Zabrosky. (John Kotlik and Murphy are cousins, as Agnes was grandmother to both of them.)

In 1988, the Kotliks sought to secure variances to enable them to build a single-family residence on lot 1A. Murphy opposed the attempt successfully: the statutory requirements for variance could not be satisfied. [Note 3]

Thereupon the Kotliks acquired two additional parcels, called lots "A" and "B," each to the east of and adjacent to lot 1A. Barring the question raised by Murphy, to be dealt with below, lot 1A so enlarged became fully conforming: together, lot A (4,217 square feet), lot B (2,228 square feet), and lot 1A (23,556 square feet), totalling 30,001 square feet, supplied the lot area requirement; and lot B, fronting on School Street, provided an additional fifty-five feet of lot width, to make up the 125 feet. At this point the Kotliks applied for and secured the building permit whose legality is the issue on the present appeal. Lot 1 remained nonconforming

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for the deficiency of lot width, but the owner and property are protected against any action to enforce the zoning by-law against them by the running of time under G. L. c. 40A, Section 7 (ten-year provision).

Murphy contended that lot 1A, even as extended by lots A and B, could not be regarded as conforming because it offended against Section 4.1 of the Stoughton zoning by-law of 1964, in force at the time of the 1968 conveyance by Mary Zabrosky:

"The lot or yard areas required for any new building or use may not include any part of a lot that is required by any other building or use to comply with any requirements of this By-Law, nor may these areas include any property of which the ownership has been transferred subsequent to the effective date of this By-Law if such property was a part of the area required for compliance with the dimensional regulations applicable to the lot from which such transfer was made."

Murphy rested on the second clause ("nor may," etc.) and claimed that the enlarged lot was disqualified because it comprised an area that lot 1 needed in 1968 to comply with the lot width requirement. [Note 4]

The judge disagreed with Murphy. In his view, the building inspector could reasonably have concluded that Murphy's interpretation of the by-law was not required on the facts of the particular case, where the Kotliks and their predecessors were not involved in the vice at which the by-law was aimed, the Kotliks assembled a conforming lot, and there was nothing they could do to make Murphy's lot conforming.

We are not called upon to express any opinion, nor do we do so, about the correctness of this view.

Another basis for upholding the judge's decision and our affirmance arose from an event that occurred while the parties'

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cross motions were pending decision: the Kotliks acquired an additional parcel of land to the east of and adjacent to Lot B along School Street. [Note 5] This not only further enlarged the Kotliks' lot area by 891 square feet, but also extended the width of their lot by 22 feet along School Street for a total of 147 feet.

For lot 1 to have been conforming after the 1968 transfer, it would have had to extend along School Street for an additional 12.8 feet at a depth of forty feet. As noted, according to Murphy, the by-law prohibits the Kotliks from using part of lot 1A -- an area 12.8 feet wide by forty feet deep which borders on lot 1 and fronts on School Street -- because that area was required for compliance with the dimensional requirement of lot 1, the lot from which the 1968 transfer was made. But if by-law 4.1 is read to preclude the Kotliks from using this 12.8 by forty-foot area, the lot they have now assembled -- conforming lot 1A minus the precluded parcel plus lot A, lot B, and the new parcel -- complies with all dimensional requirements. Therefore the Kotliks should be allowed to build. In the margin we quote the judge's remarks on this ground of decision. [Note 6]

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Alley v. Building Inspector of Danvers, 354 Mass. 6 (1968), cited by Murphy, is quite different from the present case. A developer bought a lot that conformed to the minimum area requirement and divided it into a smaller lot and a larger lot, keeping for himself the smaller lot, which was deficient in area. To remedy this problem, which he had evidently foreseen, he acquired a piece of an adjacent lot, leaving that lot deficient in area as well. He combined the piece with his nonconforming lot, making it conforming, and sought a building permit, which was finally denied. Making a lot conforming at the expense of depriving two other lots of area needed for compliance with the zoning by-law was held unacceptable. The judge below called the developer's conduct in Alley "zoning misbehavior." In the present case the Kotliks' acquisition of parcels renders their property conforming without any claim of impairing the status of any other property; besides, the Kotliks obviate in a reasonable way any difficulty arising from the Stoughton by-law. [Note 7]

Judgment affirmed.