JEROME BERG & others [Note 1] vs. TOWN OF LEXINGTON & others. [Note 2]

DREBEN, J. The planning board of Lexington approved a "subdivision plan" and a "special permit with site plan review" (special permit) for the construction of residences on three

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parcels of land on a paper street (a street shown on a plan but not built on the ground), and for the development of the street and utilities. Thereafter, the plaintiffs, some of the abutters of the parcels and others also claiming to be aggrieved persons, [Note 3] brought this action under G. L. c. 41, § 81BB, [Note 4] and G. L. c. 240, § 14A. They claimed that the parcels were not exempt from current dimensional zoning requirements and that approval of the subdivision plan should be annulled because the planning board exceeded its authority as the project is not a subdivision. On cross motions for summary judgment, a judge of the Land Court ruled that (1) the parcels were grandfathered under the 1999 zoning by-law as to the area and frontage requirements, and (2) while the plan was properly considered under the subdivision control law, its approval had to be annulled because the developer, David Burns, doing business as Debco Properties (Debco), failed to comply with § 2.2.4 of the planning board's development regulations by not obtaining the signatures of all the persons owning the fee of the paper street. See G. L. c. 183, § 58.

The plaintiffs appeal from the zoning ruling that the parcels were grandfathered and the treatment of the project as a subdivision. Robert and Constance Ericson, the present owners of the lots, and Debco appeal from the determination that Debco was required to obtain the signatures of all persons having a fee interest in the paper street. The municipal defendants have

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not appealed. None of the parties appeals from the granting of the special permit. We affirm the determination that the lots are grandfathered as to area and frontage requirements of the zoning by-law and reverse the ruling requiring Debco to obtain the signatures of all persons having a fee interest in the paper street.

1. Background. The Ericsons own three noncontiguous parcels of land, each of which is an aggregation of individual lots on the paper street called Grandview Avenue, originally shown on a plan recorded in 1893. See sketch, infra. None of the parcels meets the minimum lot size requirement of 15,500 square feet set forth in the current Lexington zoning by-law. [Note 5] One parcel also does not meet the current frontage requirement. Debco, through an entity controlled by Burns, executed a purchase and sale agreement to purchase the three parcels.

In order to provide access to the lots, Grandview Avenue has to be improved; it is currently a dirt trail through woods. The planning board instructed Debco that a subdivision plan is the appropriate method for obtaining approval for its project, including the construction of Grandview Avenue. We will first consider the zoning questions and then discuss the issues relating to the requirement of obtaining permission from the owners of the fee in the paper street, adding such facts from the record as are necessary to our analysis.

2. Zoning. As indicated earlier, none of the parcels meets the dimensional requirements of the town's current zoning by-law (minimum lot size of 15,500 square feet). The plaintiffs claim that the 1999 zoning by-law is the applicable one and that the lots are not grandfathered under its provisions. The grandfathering exemption from the area and frontage requirement is contained in § 7.4.1 of the by-law and is similar to G. L. c. 40A,

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§ 6, construed in Rourke v. Rothman, 448 Mass. 190 (2007). [Note 6] Both provisions are set out in the margin. [Note 7]

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a. Parcels 1 and 2. Relying on the definition of "lot" in § 2 of the by-law, the plaintiffs claim that parcels 1 and 2 do not qualify as lots. In relevant part, § 2 of the by-law defines "lot" as "[a]n area of land in one ownership with definite boundaries. . . ." Since parcel 1, an aggregation of two lots, and parcel 2, an aggregation of three lots, are areas of land held by two owners, namely Robert individually and Robert and Constance as tenants by the entirety, see note 5, supra, the record title is not in one ownership, and, hence, according to the plaintiffs, the parcels are not "lots."

The separate ownership of the lots in each parcel was the result of "checkerboarding," a method sometimes employed to avoid zoning provisions that require lots held in common ownership to be combined for determining area and frontage. Through a series of conveyances a parcel can be divided so that no person named as an owner of a lot holds title to an adjacent lot. [Note 8] DiStefano v. Stoughton, 36 Mass. App. Ct. 642, 642-645 & n.3 (1994). See Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148, 151 n.4 (1981). Such conveyances are ineffective to defeat lot combination provisions when the lots remain in control of the originator of the scheme. Planning Bd. of Norwell v. Serena, 406 Mass. 1008, 1009 (1990). DiStefano v. Stoughton, supra at 644-645. While it may be argued that the Ericsons should be held to bear the consequences of their own acts, we consider the judge warranted in treating each of the two parcels as a single lot in common ownership. Moreover, it was Debco, the would be developer, who applied for approval of the plan, the Ericsons indicating their agreement. The treatment of each of the parcels as a single lot is also consistent with the purpose

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of the rule that "adjacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities with the dimensional requirements of the zoning by-law or ordinance." Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 522 (1987).

So treated, both parcels are grandfathered under the 1999 zoning law. In 1967, see note 8, supra, the time of recording of the most recent instrument of record, see Adamowicz v. Ipswich, 395 Mass. 757, 762 (1985), parcels 1 and 2 were not held in common ownership with any adjoining land, each has at least 5,000 square feet of area (as combined) [Note 9] and fifty feet of lot frontage, and, because of the applicable grandfather clause in the zoning law in effect in 1967, conformed to the then existing requirements for minimum lot area. Rourke v. Rothman, 448 Mass. at 196-198.

The only zoning provisions of Lexington in the record prior to 1999 are portions of the 1953, 1965, and 1967 by-laws. [Note 10] All contain a provision that the requirements as to area, frontage, and side yards "shall not apply to . . . [a]ny lot lawfully laid out and recorded by plan or deed prior to March 17, 1924." [Note 11] Since the lots were laid out in 1893, they were buildable under the 1953, 1965, and 1967 by-laws. There was no requirement that they be held in separate ownership under those by-laws.

b. Parcel 3. The plaintiffs challenge the zoning conformity of parcel 3 on different grounds. They point to the title history which shows that on the original 1893 plan the parcel consisted of three lots which were reconfigured into two lots on a 1955 registered subdivision plan (subsequently modified), long after the Lexington zoning by-law was adopted. [Note 12] The two lots were conveyed together in 1962 for the first time into separate ownership from adjacent lots by a deed to Robert and Constance Ericson as tenants by the entirety. Since the two lots, even when

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considered in combination, did not comply with the applicable dimensional requirements of 15,500 square feet in effect in 1955 when the subdivision was registered, and also in effect in 1962 and 1967 [Note 13] when the lots came into separate ownership, the plaintiffs argue that parcel 3 is not a buildable lot.

Contrary to the plaintiffs' contention, the lots were then protected. Under the relevant by-law in effect at the time of conveyance to the Ericsons, [Note 14] any lot which was laid out and recorded by plan prior to March 17, 1924,

"may be enlarged by combining it with an adjoining lot or lots, or fractions thereof, in the same ownership. Such enlarged lot shall not be subject to greater requirements as to area, frontage . . . by reason of such enlargement."

There was also no requirement until the 1999 zoning by-law that the lots be in separate ownership from adjoining lots. Thus, since the area requirements did not apply to any lot lawfully laid out and recorded by plan prior to March 17, 1924, and since those lots could be enlarged, parcel 3 was a buildable lot at the time it came into separate ownership in 1967, and complies with the grandfathering exemption (§ 7.4.1, see note 7, supra) of the 1999 zoning law. In 1967, parcel 3 "was not held in common ownership with any adjoining land, had at least 5000 square feet of lot area and 50 feet of frontage, and conformed to the then existing requirements . . . ," i.e., the zoning law in effect in 1967. See Rourke v. Rothman, 448 Mass. at 196-198.

3. Access to the parcels. In order for the parcels to be buildable, the Lexington zoning by-law requires that frontage be on a street, road, or way. Under a number of provisions of the Lexington land use laws and regulations it appears that the only method by which access to these parcels may be obtained is through a subdivision plan. More specifically, the definition of

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street, road, or way in the zoning by-law, set out in the margin, [Note 15] lists certain classifications; the only one that would apply to the parcels at issue requires a subdivision plan. A zoning regulation, § 5.2.4, provides that if more than one new dwelling is to be built on an unaccepted street, the applicant must file a subdivision plan and provide for construction of public facilities as required by the subdivision regulations. A subdivision regulation, § 3.2.1, provides that "[n]o person shall: . . . c. undertake preliminary steps, such as the clearing of land, excavation, site preparation or other preparatory steps leading to the construction of a street . . . for which requirements or standards are set forth in these Regulations; unless and until a definitive subdivision plan has been submitted to, approved, and endorsed by the Planning Board . . . ."

Because of these provisions, as discussed in a planning board staff memo, the subdivision route was suggested to the defendants. The judge agreed, indicating that if Debco was unable to obtain an endorsement "approval not required" under G. L. c. 41, § 81P, then the plan must be considered under the subdivision rules. [Note 16] He also found correct an assertion of the municipal defendants (who are not parties to this appeal but

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who were parties in the Land Court proceeding) that "the land submitted for subdivision approval includes the Grandview right of way, which together with the non-adjacent lots, constitutes a single tract of land." The judge then turned to the planning board's development regulations and, relying on § 2.2.4 set out in the margin [Note 17] and the derelict fee statute, G. L. 183, § 58, determined that Debco "has failed to comply with Section 2.2.4 of the Development Regulations by not obtaining the signatures of all those persons owning the fee of private Grandview included within the Debco subdivision."

In this case we need not decide whether the Debco plan is technically a "subdivision" in order to uphold the requirements imposed by the planning board as to the construction of Grandview Avenue as a means of providing access to the parcels and for the installation of municipal services. The defendants, as owners of parcels abutting Grandview Avenue as shown on the 1893 plan, have an easement to use Grandview Avenue in its entire length. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677-678 (1965). The defendants also have the right to make the street "passable and usable for its entire width, having due regard to the rights and interests of others. . . . The right exists even more clearly [as here] where without improvement the way is impassable and useless." Guillet v. Livernois, 297 Mass. 337, 340 (1937). [Note 18]

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Our cases indicate that planning boards may regulate access to lots established by subdivision plans predating acceptance of the subdivision control laws. Thus, Toothaker v. Planning Bd. of Billerica, 346 Mass. 436, 439 (1963) (Toothaker), held that the planning board had authority to regulate access to the lots of a 1914 plan. That case was an appeal by the planning board from a decision in the Superior Court which held that the "subdivision of the petitioners' land is not subject to the 'subdivision control law.' " [Note 19] The plaintiffs in Toothaker were the owners of 1,200 lots in a subdivision of more than 1,800 lots shown on a 1914 plan. At the time the subdivision control law became effective in Billerica in 1951, about a third of the lots were exempt from the subdivision law under G. L. c. 41, § 81FF. [Note 20] Toothaker, supra at 437. Holding that the plaintiffs' tract is "plainly, a subdivision within the meaning of § 81L," the Supreme Judicial Court ruled: "Nothing in the exceptions to that definition exempts the plaintiffs' land. Nor can it be argued that the planning board lacks power under § 81O and § 81FF to regulate access to the lots of the 1914 plan." Id. at 439. The court did not limit the authority of the planning board to the lots which were not exempt. Even as to the lots which were exempt under § 81FF, the court held that the planning board could apply its regulations to the rights of way appurtenant to those lots, as long as the plaintiffs and planning board applied the law so "that the existing exempt rights of way of the lots separately owned in 1951 are not destroyed or substantially limited or interfered with. . . . In any event, nothing would preclude application of regulations [to those lots] requiring construction of ways and installation of municipal services." Id. at 440. Viewing the exemption in § 81FF very narrowly, the court pointed to the purpose of the subdivision law set out in

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G. L. c. 41M, § 81M. [Note 21] "Except only as stated, any or every aspect of this statutory purpose may be served in applying the law to the plaintiffs' land." Toothaker, supra at 441.

LeBlanc v. Board of Appeals of Danvers, 32 Mass. App. Ct. 760 (1992) (LeBlanc), also involved a lot which had been laid out on a subdivision plan prior to the adoption of the subdivision law in Danvers and which was exempt from the subdivision control law because of G. L. c. 41, § 81FF. Citing Toothaker, supra, this court held that the planning board's regulations could be applied to the paper street abutting the lot. LeBlanc, supra at 764. We pointed out that "[t]o define frontage in c. 40A, § 6, by importing the criteria of c. 41, § 81L [the definition of subdivision], would not serve the purpose of 'protecting a once valid lot from being rendered unbuildable.' " Ibid., quoting from Sturges v. Chilmark, 380 Mass. 246, 261 (1980). Accordingly, we held that where the plaintiff was willing to abide by the town's requirements as to the construction of ways and installation of municipal services, a building permit could not be denied because the paper portion of the street abutting the plaintiff's property was as yet not built.

Under the principles of the Toothaker and LeBlanc cases, the planning board in the case at bar has authority to regulate access to the lots of the 1893 subdivision. [Note 22] Thus, we need not consider whether the Debco plan would, in the absence of the 1893 plan, be within the definition of a subdivision in § 81L. Here, the defendants have the right to improve the street and are willing to comply with the standards imposed by the planning

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board under the local subdivision rules and regulations for such improvements. To uphold the plan insofar as it regulates the construction and the installation of municipal services is not only consistent with Toothaker and LeBlanc, but also furthers the purpose of c. 41, § 81M, see note 21, supra, the town's interest in proper construction of streets, and the policy, recently strongly reaffirmed in Rourke v. Rothman, 448 Mass. at 197, of protecting a once valid lot from being rendered unbuildable. To hold otherwise "would needlessly and drastically reduce the value of the [defendants' parcels] and [their] existing right[s] of way." LeBlanc, supra at 764.

Moreover, the specifications required by the planning board may only be challenged by the plaintiffs if the requirements were imposed without "due regard to the[ir] rights and interests." Guillet v. Livernois, 297 Mass. at 340. The plaintiffs, whose counsel attended the hearings of the planning board, have not suggested that the subdivision plan with respect to construction of the way or the installation of utilities will substantially limit or interfere with their rights in the way. See Toothaker, supra at 440. We note, as mentioned earlier, that neither the plaintiffs nor the defendants have appealed from the special permit which also sets forth requirements for the construction of the street and the installation of municipal services.

In conclusion, the judgment is affirmed in so far as it adjudged that parcels 1, 2, and 3 as shown on the Debco plan comply with the dimensional and frontage requirements of the town's zoning laws; the judgment, insofar as it annulled the planning board's decision pertaining to the subdivision plan, is vacated.

So ordered.