CHARLOTTE LACEY v. JAMES P. MOVALLI, ROBERT G. STEWART, FRANCIS S. WRIGHT, STEPHEN REYNOLDS and DAVID GARDNER, as they are members of the Board of Appeals of the City of Gloucester

Plaintiff Charlotte Lacey (the “Plaintiff”) initiated this case when she filed a complaint on May 10, 2006 appealing a decision of the Board of Appeals of the City of Gloucester (the “Board”) which upheld a decision of the City’s Building Inspector refusing to issue a building permit for Plaintiff’s property known as 10 Ferry Hill Road, Gloucester, Massachusetts (the “locus”). In its decision, the Board upheld the Building Inspector’s denial of Plaintiff’s application for a building permit, determining that the locus was not entitled to the protections of G.L. c. 40A, § 6 because it had an existing structure on it when a zoning change made the lot nonconforming.

The locus, located in the R-3 Zoning District in the City of Gloucester, is approximately 5256 square feet in area and has more than 50 feet of frontage on Ferry Hill Road. The R-3 Zoning District had the minimum lot size of 5,000 square feet until 1957, at which time the minimum lot size increased to 10,000 square feet, rendering the subject property nonconforming. In this action, the Plaintiff named as Defendants the members of the Board of Appeals in their official capacities (the “Defendants”), alleging that the Board’s decision exceeded its authority and seeking a determination from the court that the locus is an appropriate site for a single family structure pursuant to G.L. c. 40A, § 6 and the Gloucester Zoning Ordinance.

On July 28, 2006, eight individuals who own property abutting the locus filed a Motion to Intervene as Defendants pursuant to Mass. R. Civ. P. 24(a), asserting that their interests would not be adequately represented by counsel for the Board. The motion was argued before the court (Trombly, J.) and taken under advisement on September 26, 2006, the same day on which a case management conference was held. In an Order issued on October 2, 2006, this court denied the Motion to Intervene.

After several attempts at rescheduling a status conference, Plaintiff filed a Summary Judgment Motion and Statement of Material Facts, Statement of Legal Elements, an affidavit of the Plaintiff Charlotte Lacey, and a Memorandum in Support of the Plaintiff’s Motion for Summary Judgment on May 29, 2007. On June 28, 2007, the Board filed an Opposition to the Motion for Summary Judgment and a request that summary judgment be granted in its favor, along with an appendix of exhibits, Statement of Material Facts, Statement of Legal Elements and a Memorandum in support of their opposition to the summary judgment motion. On this same day, the parties appeared before the court and argued the motions for summary judgment, at which time the matter was taken under advisement. Based on the record before it, the court finds that the following facts are not in dispute and are established for the purpose of any trial or further proceedings which may become necessary in this matter. Mass. R. Civ. P. 56(d).

1. The Plaintiff Charlotte Lacey resides at 22 Chapel Street, Gloucester, Massachusetts.

2. The property at issue is located at 10 Ferry Hill Road in Gloucester, Massachusetts and contains approximately 5,256 square feet of area and more than 50 feet of frontage on Ferry Hill Road. It is shown as “Lot 6” on a 1911 plan, a reduced copy of which is attached hereto as “Decision Sketch.”

3. On the other side of Ferry Hill Road facing the locus are a number of lots which have been built upon, one of which is owned by the Plaintiff. Said lot is shown as “Lot 7” on the “Decision Sketch.”

4. At some point prior to 1957, the exact date of which is unknown to this court, Plaintiff’s predecessor in title, who owned both Lots 6 and 7, erected a structure on the locus, referred to by the Plaintiff as a “garage” or a “shed.”

5. At the time the structure was erected, the minimum lot size for the property, located in the R-3 Zoning District, was 5,000 square feet, and the Gloucester Zoning Ordinance allowed private garages as accessory buildings on lots lacking a principal building. Thus, at the time of its erection, the structure on Lot 6 complied with relevant zoning requirements.

6. In 1957, the minimum lot size in the R-3 Zoning District was increased to 10,000 square feet.

7. Plaintiff contends and the court finds that at the time her family purchased the property in approximately 1970, the structure at issue was still standing but was “dilapidated” and “had only 3 failing walls and a dirt floor.” Plaintiff claims that the structure at all times served as an accessory structure to a residence also owned by her and located on Lot 7, and that it was never used for residential or commercial purposes.

8. Assessor’s records for the City of Gloucester indicate that the “garage” or “shed” on Plaintiff’s property was taxed until at least 1966, at which time these records appear to have been misplaced for the next fifteen years. Reappearing again in 1981, the assessor’s records at this time make no mention of the “garage”.

9. Subsequent to 1966, the “garage” or “shed” fell into disrepair or was destroyed. The exact date or cause of its demise is unknown to this court. Only remnants currently remain.

10. In an October 3, 2005 decision, the Building Inspector for the City of Gloucester denied Plaintiff’s request to build a single family residence on the locus. The Plaintiff timely appealed the Building Inspector’s denial to the Board of Appeals.

11. In a decision filed with the City Clerk on April 21, 2006, the Board upheld the Building Inspector’s denial of a building permit, finding that G.L. c. 40A, § 6 does not provide grandfathered protection to a lot that is not vacant at the time a zoning change renders it nonconforming.

12. Paragraph four of G.L. c. 40A, § 6 states in pertinent part: [a]ny increase in area, frontage, width, yard or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirements but at least five thousand square feet of area and fifty feet of frontage.

13. Plaintiff timely appealed the Board’s decision by filing a complaint in this court on May 10, 2006.

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“Summary Judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643–44 (2002); Mass. R. Civ. P. 56(c). Whether a fact is material or not is determined by the substantive law, and “[a]n adverse party may not manufacture disputes by conclusory factual assertions.” Ng Bros., 436 Mass. at 648; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). With respect to any claim on which the party moving for summary judgment does not have the burden of proof at trial, it may demonstrate the absence of a triable issue either by submitting affirmative evidence that negates an essential element of the opponent’s case, or “by demonstrating that proof of that element is unlikely to be forthcoming at trial.” Flesner v. Technical Communications Corp., 410 Mass. 805 , 809 (1991). However, the party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). Summary judgment may be granted to the non-moving party. Mass. R. Civ. P. 56(c).

Discussion

The central issue before this court is whether the grandfathered protection of G.L. c. 40A, § 6, paragraph 4 applies to lots with structures thereon when a zoning change renders them nonconforming. In making such a determination, the court must also inquire as to whether it is of consequence that such a structure is an accessory or principal use at the time the lot in question becomes nonconforming. I find that no issues of genuine material fact exist in this action, and that the matter is ripe for summary judgment.

Plaintiff, referring to the grandfathered protection provided by G.L. c. 40A, § 6 as the “separate lot exception,” concedes that the “separate lot exception” cannot be applied where a principal structure (i.e. a house) is demolished after the adoption of a zoning change makes the lot nonconforming. However, she distinguishes the facts of the instant action from the aforementioned principle, explaining that her property has never contained a principal residential structure. Rather, she contends that the existence of an accessory structure on a lot after the adoption of a zoning change, as was present on the locus until after 1957, does not void the protections provided under the “separate lot exception.” The Board, on the other hand, argues that the exception set forth in paragraph four of G.L. c. 40A, § 6 applies only to vacant land, contending that it is irrelevant whether or not an existing structure on a lot is a residential dwelling or an accessory use. Relevant to the inquiry, they argue, is whether or not there is a use on the lot. Contrary to Plaintiff’s contention that a lot is protected by G.L. c. 40A, § 6 when an accessory structure exists on the property at the time a zoning change renders the lot nonconforming, the Board asserts that the existence of any structure on a lot after that lot becomes nonconforming takes the lot outside of the protections provided by G.L. c. 40A, § 6.

“It is settled that a lot of land must be vacant in order to qualify for the single lot exemption.” Kibbe v. Town of Douglas, 14 LCR 418 , 420 (2006), aff’d, 69 Mass. App. Ct. 1108 (2007). “There is nothing on the face of the fourth paragraph [of G.L. c. 40A, § 6] to suggest that it was intended to apply to anything but vacant land.” Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 18 (1987). See Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 , 168 (holding that the “reconstruction” of a single-family residential structure was governed by G.L. c. 40A, § 6, first paragraph rather than by G.L. c. 40A, § 6, fourth paragraph, because the lot was not “vacant land” for the purposes of applying the single lot exemption pursuant to the fourth paragraph of G.L. c. 40A, § 6). Similarly, in Kibbe, the central issue before the court was whether the locus was entitled to the single lot exemption as a vacant lot for single-family residential use. The lot in Kibbe became nonconforming upon the adoption of a 1970 bylaw and a mobile home existed on the property until approximately 1986. The court found that the property did not constitute vacant land while the mobile home was present, regardless of whether or not it was occupied, holding that “[a]n unoccupied dwelling would constitute a use on a lot, and I find no distinction of legal import here just because the structure on the locus was a trailer. Accordingly, Kibbe cannot avail himself of the protection of G.L. c. 40A, § 6, fourth par.” Kibbe, 14 LCR at 420-421.

In Aldrich v. Bd. of Appeals of the Town of Nahant, 6 LCR 3 (1998), the issue before this court was whether a certain locus in the town of Nahant was protected by the grandfather provisions of G.L. c. 40A, § 6. Central to the court’s inquiry was whether the locus was vacant land in 1952 when the minimum lot size was increased, thus rendering the locus nonconforming. The court (Kilborn, C.J.), found that while a garage existed on the locus at one time, by 1945 the majority of the garage had been removed from the tax rolls and demolished, leaving only an eight foot by ten foot portion of wall and part of a concrete floor. The court, therefore, concluded that the “locus was vacant when it became non-conforming as to lot size and that thereafter it had the protection of the first sentence of the fourth paragraph of G.L. c 40A, § 6.” Aldrich, 6 LCR at 4. The Aldrich court also distinguished its facts from those present in Dial Away, noting that unlike in Dial Away, where demolition of the structure on the property at issue took place after the property became nonconforming, the garage on the property in Aldrich was demolished prior to the adoption of the new zoning bylaw.

In the case at bar, both parties agree that only lots deemed “vacant” after a zoning change renders them nonconforming are entitled to grandfathered protection under G.L. c. 40A, § 6, fourth paragraph. This interpretation was applied by the Massachusetts Appeals Court in Willard and was used by the same court again in Dial Away, in which the court stated that “we indicated [in Willard] that par. 4 applies only to vacant land, pointing out that its ‘immediate statutory ancestor, G.L. c. 40A, § 5A…applied to original construction on vacant lots but not to alterations of existing structures which had become nonconforming…’” Dial Away, 41 Mass. App. Ct. at 168, quoting Willard, 25 Mass. App. Ct. at 18. The question before this court, therefore, is whether Plaintiff’s lot was considered “vacant” at the time it became nonconforming in 1957.

The court disagrees with Plaintiff’s contention that the type of structure (i.e. principal or accessory) on the locus is pertinent to whether or not it is “vacant” and entitled to protection under the fourth paragraph of G.L. c 40A, § 6. Guided by the reasoning set forth in previous decisions, I find that the type of structure on a lot is irrelevant in determining whether a lot of land is “vacant” for the purposes of G.L. c 40A, § 6, fourth par. For instance, the court in Kibbe focused on whether or not the trailer on the disputed locus was an “active use of a lot of land” and a “structure” rather than on how it was being used. The Kibbe court stated that “[a]n unoccupied dwelling would constitute a use on a lot…,” and in a footnote, the court pointed out that “[t]he trailer could also be considered a ‘structure’ in that it was assembled at a fixed location using a combination of materials for the purpose of giving shelter, irrespective of whether it was intended for residential or non-residential use.” Kibbe, 14 LCR at 420 and fn. 8. It is clear from Kibbe, therefore, that a structure’s classification is irrelevant to whether a lot is “vacant.” Just as the Aldrich court deemed land to be “vacant” where the remnants of a demolished garage remained, the presence of a structure on a lot, and whether or not it can constitute the “use” of lot, is the key to determining whether land is “vacant.”

In the instant action, the “garage” or “shed” on Plaintiff’s property was in place on the property until sometime after 1957, as stated by Plaintiff herself in her affidavit. At some point after 1957, Plaintiff states that the garage fell into disrepair or collapsed. The exact date of its collapse is unknown. However, the City of Gloucester’s assessor’s records from 1966 indicate that the garage still existed on the property at that time. From these facts, it is reasonable for the court to infer that the garage was indeed present on the property until after the 1957 change to the city’s zoning bylaw. At the time the lot became nonconforming, therefore, a “use” existed on the locus in the form of a “garage” or “shed,” regardless of whether it was merely used for parking or storage. The fact remains that this structure or “use” existed on the property after it became a nonconforming lot. I find that Plaintiff’s lot was not “vacant” at the time the zoning bylaw was changed in 1957, thereby excluding it from the protections of G.L. c. 40A, § 6, fourth paragraph, and that the Board acted within its authority in upholding the Building Inspector’s denial of a building permit for the locus.

Judgment to issue accordingly.

SO ORDERED.

Charles W. Trombly, Jr.

Justice

Dated: July 11, 2008