SUSAN TEHRANIAN v. TOWN OF COHASSET BOARD OF APPEALS, whose members are S. WOODWORTH CHITTICK, BENJAMIN H. LACY, BARBARA M. POWER, CHARLES HIGGINSON, PETER L. GOEDECK, and STEVEN A. ROSS, as Trustee of GMR Cohasset Nominee Trust

This action is an appeal by Plaintiff of a decision (Decision) of the Town of Cohasset Board of Appeals (Board), which upheld the granting of a building permit by the Cohasset Building Inspector. The permit authorizes the construction of a residential dwelling on certain land (Locus), owned by Steven A. Ross, Trustee of GMR Nominee Trust (GMR). Plaintiff owns property that abuts Locus. The Land Court has jurisdiction under G. L. c. 40A § 17.

On April 2, 2007, Plaintiff filed a Verified Complaint requesting the court review the Decision and revoke the building permit for Lot A. [Note 1] In an effort to prepare the case for a dispositive motion, the parties submitted an Agreed Statement of Facts on March 7, 2008, followed on May 28, 2008, by GMR’s Motion for Summary Judgment. The Board filed a response on July 1, 2008, generally supporting GMR’s motion. Plaintiff filed her opposition on July 3, 2008. The parties attended a summary judgment hearing on July 8, 2008. They have put before the court many issues and agreed facts, some of which this court has determined are not relevant to the question before the court, and some of which do inform this court’s decision. [Note 2] The undisputed facts which this court finds material are:

1. Plaintiff Susan Tehranian (Tehranian) resides at and is the owner of 132 Atlantic Avenue, Cohasset.

2. Defendants identified in paragraphs 3 through 8 of the Verified Complaint were the members of the Board at all times relevant to this action.

3. GMR owns Lots 1, 2, and 3, all shown on a plan entitled “Plan of Land Meadow Lane Cohasset Massachusetts” dated April 2, 1999 (1999 Plan).

4. Prior to 1987, Lots 1 and 2 on the 1999 Plan comprised one lot with two houses, one house known as the “Farm House,” and the other known as the “Log Cabin.”

5. GMR acquired title to Lots 1, 2, and 3 on the 1999 Plan by foreclosure deed dated December 23, 2005.

6. All land involved in this action is located within the residential zoning district known as “District R-C” under the Cohasset Zoning Bylaw (Zoning Bylaw).

7. Under the Zoning Bylaw, a lot for a single family dwelling in District R-C must have a minimum area of 60,000 square feet. However, Zoning Bylaw Section 5.4.4 lists exceptions to the minimum area requirement, including the following:

“b. lots adjacent to one or more said lots are owned by the same owners in an identical manner and contain an aggregated area exceeding 120,000 square feet (exclusive of any parts of said lots below mean high water), . . .

The requirement that each lot much contain at least 60,000 square feet is varied to the extent that so long as no lot or subdivided lot may contain less than 20,000 square feet if the average size of the areas of all the lots contained in a subdivision plan of said lot or of said adjacent lots, shall amount to at least 60,000 square feet (exclusive of ways and roads.)”

8. Lot 1 and Lot 2 on the 1999 Plan represent the same land as Lot A and Lot B on the 2006 Plan, with a reconfigured lot line between the two lots.

9. Lot A, Lot B, and Lot 3, [Note 3] aggregated, comprise a total area of 263,000 square feet for the three parcels, creating a per lot average of 87,000 square feet. On both the 1999 Plan and the 2006 Plan, Meadow Lane is shown with a solid centerline marking the boundary between the lots shown on those plans, confirming that the abutting owners own to the centerline of Meadow Lane. [Note 4]

10. In 1997, GMR’s immediate predecessors-in-title, the Deans, commenced an action in the Land Court, (subsequently transferred to the Norfolk Superior Court, Docket No. 99-1098), against Ronald and Donna Blain, at that time the owners of 132 Atlantic Avenue, Cohasset (Blains), seeking, inter alia, a declaratory judgment that the Deans were entitled to use Meadow Lane as access for Lots 1, 2, and 3 on the 1999 Plan.

11. On July 28, 2003, the court (Lombardi, J., sitting as a Superior Court judge by designation of the Chief Justice for Administration and Management), issued a decision and judgment in Dean v. Blain, determining the access rights of the Deans. The court held that Lot 1 and Lot 2 have an appurtenant prescriptive easement over Meadow Lane, and that there is no such right appurtenant to Lot 3. [Note 5]

12. On July 10, 2006, GMR submitted to the Cohasset Planning Board, a Form A plan (2006 Plan), which showed two lots; Lot A, which has 43,560 square feet in area, and Lot B, which has 63,105 square feet in area. 13. On the 2006 Plan, both the Farm House and Log Cabin are located on the same lot, Lot A, while Lot B is unimproved.

14. On July 27, 2006, the Planning Board endorsed the 2006 Plan as not requiring approval under the Subdivision Control Law (ANR Endorsement).

15. On September 27, 2006, Robert Egan, the Cohasset Building Inspector (Building Inspector) issued to GMR a building permit to construct a new single-family dwelling on Lot A on the 2006 Plan. Subsequent to the issuance of the building permit, GMR razed the Farm House and has constructed a single-family house in accordance with the building permit.

16. On December 11, 2006, the Building Inspector issued GMR a building permit to construct a new single-family house on Lot B on the 2006 Plan.

17. Pursuant to G. L. c. 40A §§ 8 and 15, on December 5, 2006, Tehranian appealed to the Board the issuance of the building permit for Lot A . Shortly after, she also appealed the issuance of the building permit for Lot B. The appeals were consolidated for hearing by the Board. [Note 6]

18. Following two sessions of a duly noticed public hearing in January, 2007, on March 12, 2007, the Board filed with the Town Clerk its Decision on the consolidated appeals.

19. The Decision denied Tehranian’s appeal of the building permit for Lot A, but allowed her appeal of the building permit for Lot B.

20. GMR filed an appeal from the Decision denying a building permit for Lot B with the Norfolk County Superior Court, and Tehranian filed the instant appeal, challenging the grant of a building permit for Lot A. In this appeal, Tehranian seeks to overturn the Decision with respect to Lot A, and asks for a revocation of the building permit for that lot.

21. GMR in their Motion for Summary Judgment, attached a plan of land dated April 14, 2008, endorsed by the Planning Board (2008 Plan), combining Lot A and Lot B on the 2006 Plan.

* * * * *

Summary judgment is granted where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm’r of Correction, 390 Mass. 419 , 422 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specifics facts which would establish the existence of a genuine issue of material fact in order to defeat a motion for summary judgment.” Id. at 17. While there are a few minor factual issues in dispute, none are material to the disposition of the motions before the court and this court finds the case is ripe for summary judgment.

When reviewing a decision by a board of appeals under G. L. c. 40A § 17, this court may not disturb the decision unless it is based on a legally untenable ground or is unreasonable, whimsical, capricious, or arbitrary.” Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349 , 355 (2001) quoting Roberts v. Southerwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999), and MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). In this appeal, Tehranian has the burden of proving that the Board has acted beyond its authority in upholding the Building Inspector’s issuance of a building permit for Lot A.

Lot A: An Undersized Lot

The Board was clear in its Decision that the sole deficiency of Lot A is its area. Lot A, at 43,560 square feet, is a non-conforming lot with respect to the area requirement of Section 5.3 of the Zoning Bylaw, as the lot does not meet the 60,000 square foot minimum area. The Board, however found that Lot A has the benefit of the exemption in Section 5.4.4.b of the Zoning Bylaw, set forth in paragraph 7 above. The Board granted this exemption under 5.4.4.b by aggregating the areas of Lot A, Lot B, and Lot 3, as shown on the 1999 Plan. All of these lots were owned by GMR at all times material to the Board’s analysis.

Tehranian argues that the Board was in error when it invoked the provisions of Section 5.4.4.b because none of the lots are entitled to the protection of that section. He has two arguments: 1) he argues that Lot A is not a lot that can be aggregated under Section 5.4.4.b, because it does not have frontage on a “Street,” and 2) aggregation under Section 5.4.4.b, is not possible because Meadow Lane interferes with the adjacency of Lot 3 with Lots A and B. These arguments conflate the provisions and definitions of the Zoning Bylaw with those of the subdivision control law in a way that undermines the protections afforded by Section 5.4.4.b.

With respect to Tehranian’s first argument, for purposes of the exemption under 5.4.4.b, this court must understand the word “Lot” as it is defined under the Zoning Bylaw. In Section 2.1 a “Lot” is defined as “[a]n area or parcel of land in one ownership defined by metes and bounds or boundary lines in a recorded deed or recorded plan. A parcel shall not be designated a lot unless it conforms with the Table of Area Regulations, Section 5.3.1.” Under this definition, the Board was reasonable in relying on the provisions of Section 5.4.4.b to aggregate the areas of Lot A, Lot B, and Lot 3, to reach a total square footage of 263,000 for the three parcels, creating an average of 87,000 square feet per lot. As to the second of Tehranian’s arguments, this court finds that the Board was reasonable in its determination that Lot 3 was adjacent to Lot A and Lot B. As stated in the Decision, if Meadow Lane is not a public street, then it is a path held privately in common ownership as a part of Lot A, Lot B, and Lot 3, where those lots include portions of Meadow Lane. Since all three lots are under common ownership by GMR, this court finds and rules that the Board was within its authority to find that Lot A has the benefit of the provisions of Zoning Bylaw Section 5.4.4.b, which would support the Building Inspector’s issuance of a building permit.

Prescriptive Easement Over Meadow Lane

In accordance with the judgment issued in Dean v. Blain, Lot A has the benefit of a prescriptive easement for access over Meadow Lane. This prescriptive easement was established at trial in connection with the residential use of a dwelling at 75 Meadow Lane- formerly on Lot 1, now Lot A. The Dean v. Blain court held that Meadow Lane could be used “for all purposes reasonably related to the residential and agricultural activities that have historically occurred on the land.” The fact that the house which had existed on the land has now been replaced by the newly constructed house does not eliminate the prescriptive rights established by the Dean v. Blain judgment. While the lot lines have been reconfigured, it is nonetheless reasonable for the Board to have concluded that the residential use which is connected with the newly constructed house is consistent with the historical prescriptive use, and that there will be no overburdening of the easement.

2008 Plan- Mootness Issue

The court is informed that GMR has filed with the Cohasset Planning Board the 2008 Plan, and that the plan has been endorsed , Approval Under the Subdivision Control Law Not Required. At the summary judgment hearing, GMR suggested that the 2008 Plan renders this case moot. However the 2008 Plan is not before the court because no one appealed the Planning Board’s endorsement, and there is no authority in this court to rule on the Board’s endorsement of that plan. Accordingly, the existence of the 2008 Plan has no bearing on this court’s decision concerning the validity of the Decision regarding Lot A on the 2006 Plan.

Defendant’s Motion for Summary Judgment is granted.

Karyn F. Scheier

Chief Justice

Dated: August 4, 2008