MISC 300772

October 14, 2008


Piper, J.


This case is before the court on the motion for summary judgment by the plaintiff, Ann B. Dalbec, Trustee of the Ann B. Dalbec Qualified Personal Residence Trust, and on the cross motion for summary judgment by the defendants, Clayton M. Harrison, Gerald Coutinho, Margot desJardens, Christopher Graham, and Donna Lambert as they are members of the Town of Westport Zoning Board of Appeals (“Board”). In this action the court must interpret and apply provisions of the Town’s zoning laws which deal with the protections the municipality affords to land which, though no longer meeting the zoning law’s dimensional requirements, nevertheless may be built upon lawfully. The parties dispute whether or not these “grandfather” provisions, properly read, afford protection to two lots shown on a 1956 recorded plan of the plaintiff’s land, allowing her to build upon them. The court, persuaded by a review of the record the parties have assembled, determines that, as matter of law, and without there being any material fact in dispute, the Town’s zoning law does permit the plaintiff to build a house on each of the two lots, and rules that the Board’s decision, which reached a contrary conclusion, must be set aside.

This action involves an appeal under G. L. c. 40A, §17 by plaintiff from the written decision of the Board, whose members are defendants. The Board’s decision upholds the denial by the Westport Building Inspector of the plaintiff's application for building permits to construct one single family home on each of two parcels of land shown on a 1956 recorded plan described below, and identified on that plan as Lots 5 and 6.

Plaintiff's husband, Donald Dalbec, asked the Building Inspector to issue building permits to construct one single-family home on each of Lot 5 and Lot 6. The Building Inspector turned down the request for building permits, advising that the lots were deficient dimensionally according to the Westport Zoning By-Laws, were no longer protected by any of its applicable grandfathering provisions, and thus were not separate buildable lots. The Building Inspector explained the basis for his conclusion:

“Article 7.5 of the Westport Zoning By-Laws states that for a lot be exempt from Article 7.0 the lot must stand alone. The lot cannot be held in common ownership with any adjoining land, and must contain at least 20,000 square feet with 100 feet frontage. M.G.L. Chapter 40-A Section 6 states that commonly joined lots are protected for five years after the effective date of a zoning change, or for (5) years after January 1, 1976, whichever is later. Therefore lots 5 and 6 lost their grandfather rights . . . .”

The Building Inspector also wrote that the three lots owned by the Dalbecs, known as Lots 4, 5, and 6, had become legally “merged” into a single lot for purposes of determining compliance with the dimensional requirements of the zoning by-laws, and that, accordingly, the lots each now have to meet current area and frontage regulations.

Plaintiff appealed the Building Inspector’s determination to the Board, which held a public hearing and voted to uphold the decision of the Building Inspector for the reasons stated in his letter of denial. Plaintiff filed this action in this court on July 23, 2004. In Count 1 of plaintiff's complaint, she asks the court under G. L. c. 40A, § 17 to annul the decision of the Board. Plaintiff alleges that the Board's decision was based on legally untenable grounds because Lot 5 and Lot 6 conformed to the intensity regulations in place at the time they were created and were protected against subsequent changes to the dimensional requirements of the Town’s zoning by-laws; plaintiff asserts that she has available to her the exemption for pre-existing lots set out in Section 7.0 of the Zoning By-Laws. Plaintiff contends that a second, later-enacted provision of the zoning by-laws, Section 7.5 of the by-laws, does not diminish the protections for pre-existing lots established by the earlier-adopted Section 7.0, but instead provides additional grandfathering protection for lots that do not qualify for the protections of Section 7.0.

Count 2 of plaintiff's complaint asks the court for a judicial declaration pursuant to G. L. c. 240, §14A. Plaintiff seeks declaration consistent with her contention that Section 7.5 of the zoning by-laws does not limit the applicability of Section 7.0 to her lots, and that as a result she is entitled to a building permit for a single family house on each of Lot 5 and Lot 6.

Defendants answered the complaint on August 3, 2006. Plaintiff moved for summary judgment on September 12, 2007 and filed a supporting memorandum of law. Plaintiff accompanied her motion for summary judgment with affidavits from Donald Dalbec, Carlton Lees, and Eric Wodlinger; a certified copy of the zoning by-laws; and a stipulated set of facts.

Defendants filed their opposition to the motion for summary judgment on October 31, 2007. The defendants also cross-moved for summary judgment pursuant to Mass. R. Civ. 56(c). The defendants submitted a memorandum of law, a response to plaintiff's statement of undisputed material facts, a statement of additional facts, and a motion to strike the affidavit of Carlton Lees. The motions for summary judgment were argued to the court by counsel. At the hearing, I requested more information concerning the doings of the 1982 Westport Special Town Meeting, and directed counsel to supplement the record concerning that meeting and to file a short supplemental memorandum. Plaintiff did not submit a supplemental memorandum. The defendants submitted a supplemental memorandum of law with attachments, at which time the cross-motions were taken under advisement by the court.

Based on the record assembled by the parties and submitted to the court, the following facts appear to be without material dispute:

Plaintiff Ann B. Dalbec is the Trustee of the Ann B. Dalbec Qualified Personal Residence Trust, under declaration of Trust dated August 23, 1996, with an address of 6 Tee Lane, Westport, MA.

Defendant Clayton M. Harris was duly appointed Chairman of the Board and defendants Gerald Coutinho, Margot desJardins, Christopher Graham, and Donna Lambert were the duly appointed members of the Board of Appeals at the time of the decision challenged in plaintiff’s complaint.

The Town of Westport is a municipal corporation with a principal place of business at 816 Main Road, Westport, MA.

Prior to 1957, the Town of Westport had not adopted minimum lot size and frontage zoning requirements for any of the land involved in this case.

Plaintiff owns the lots (“Lots”) shown as Lot 4, Lot 5, and Lot 6 on a plan (“Plan”) entitled “Plan of Land at Acoaxet, Westport, Mass., Belonging to Frank A. DuVally, Jr. and Norma B. DuVally” dated March 22, 1956 and recorded with the Bristol County (Southern District) Registry of Deeds (“Registry”) on August 23, 1956 at Plan Book 53, Page 27. On August 20, 1956 the Westport Planning Board endorsed the Plan “Approval Not Required” pursuant to the provisions of G.L. c. 41, §81P.

Lot 4 contains 20,750.9 square feet of land with frontage of 183.73 feet on Tee Lane and 132.78 feet on Howland Road. Lot 4 has been improved with a single-family house since 1968.

Lot 5 contains 20,320.74 square feet of land with frontage of 135.1 feet on Howland Road and 136.98 feet on Country Club Lane. Lot 5 is, and at all relevant times has been, vacant and unimproved.

Lot 6 contains 17,279.71 square feet of land with frontage of 137 feet on Country Club Lane. Lot 6 also is, and at all relevant times has been, vacant and unimproved.

In 1967, plaintiff, as tenant by the entirety with her husband, acquired title to the Lots by deed. The deed describes each of the three Lots separately, by metes and bounds, and by reference to the 1956 Plan. Title since has passed of record to plaintiff in her status as trustee.

When the Plan was recorded in 1956, the zoning by-laws did not require a minimum area or frontage for lots to be built upon in the area of Westport where plaintiff's Lots are located.

On March 17, 1957, the Westport Town Meeting adopted the first minimum lot size and frontage requirements applicable to the district in which the Lots are located. The 1957 zoning by-laws required a lot size of at least 20,000 square feet and frontage of at least 100 feet. These dimensional requirements have been increased since 1957 and now are codified as Article 7.0 of the by-laws.

Section 7.0 currently provides in part:

“Except as is otherwise permitted under the provision of Section 6 of Chapter 40A of the General Laws, a dwelling hereafter erected or placed in any district shall be located on a lot having not less than 60,000 square feet of area and 150 feet of frontage.” (The parties concur that any exemption available to plaintiff does not derive from G.L. c. 40A, §6, but only, if at all, from the more liberal provisions plaintiff asserts are found in the local zoning by-laws.)

Section 7.0 further provides in its last sentence as follows:

“Provisions of this Article 7.0 shall not apply to any existing lot, which complies with previously approved intensity regulations as to area and frontage if such lot was recorded in the Registry of Deeds at the effective date of this regulation.”

Section 7.5 of the By-Laws provides in full:

“The current provisions of Section 7.0.1 Intensity Regulations pertaining to frontage and/or area requirements shall not apply to a lot for single family residential use which at the effective date of this bylaw amendment was not held in common ownership with any adjoining land and had less than the current requirement, but at least 20,000 square feet of area and 100 feet of frontage. This bylaw shall apply only to such land as is currently recorded in the Registry of Deeds.”

Article 7.5 was adopted by a vote of a Westport Town Meeting in 1982. The parties agree that the reference in Section 7.5 to “the current provisions of Section 7.0.1" contains a typographical error; the reference is to be read: “Section 7.0.”

In 2003, Plaintiff inquired as to building permits to construct one single-family home on each of Lot 5 and Lot 6.

The Building Inspector of the Town of Westport denied the application by letter to Donald Dalbec, Plaintiff's husband, dated November, 20, 2003.

Plaintiff appealed the Building Inspector’s denial letter to the Board.

The Board held a public hearing on Plaintiff’s appeal on February 4, 2004, May 19, 2004, and June 24, 2004 at Westport Town Hall.

By a vote four to one, the Board voted to uphold the decision of the Building Inspector for the reasons stated in his denial letter.

The decision of the Board was filed with the Town Clerk on July 6, 2004.

Section 7.5 of the Zoning By-Laws became effective August 24, 1982.

On the date upon which Section 7.5 of the Zoning By-laws became effective, Lots 4, 5, and 6 were under the common ownership of the Plaintiff, and they have remained so at all times since.

* * * * *

“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). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Id. at 644. In deciding a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 495 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law and "an adverse party may not manufacture disputes by conclusory factual assertions." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. 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 (1989).

When a court seeks to interpret terms used in a zoning by-law, the terms “should be interpreted in the context of the by-law as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning.” Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249 , 254 (1990). See Rando v. Board of Appeals of Bedford, 348 Mass. 296 , 297-98 (1965). A zoning by-law must be read in its complete context and be given a sensible meaning within that context. Selectmen of Hatfield v. Garvey, 362 Mass. 821 , 826 (1973).

In addition, by-laws should be interpreted in a way that avoids rendering other portions of the by-laws meaningless. Trustees of Tufts College v. Medford, 415 Mass. 753 , 761 (1993); Adamowicz v. Ipswich, 395 Mass. 757 , 760 (1985). Each separate provision or article should be given its intended effect. Shea v. Danvers, 21 Mass. App. Ct. 996 (1986) (“Requirements of one section of a zoning bylaw may not be ignored by reason of another section unless strictly necessary.”). Id. at 997.

When a court seeks to interpret a zoning by-law, the intent of the local legislative body, in this case the town meeting, is controlling. It is the court's primary purpose to determine that intent. See King v. Zoning Bd. of Appeals of Chatham, 30 Mass. App. Ct. 938 , 940 (1991); Southern New England Conference Ass'n of Seventh-Day Adventists v. Burlington, 21 Mass. App. Ct. 701 , 709 (1986).

The intent of the by-law is to be ascertained from all its terms and parts as well as the subject matter to which it relates. Tilton v. Haverhill, 311 Mass. 572 , 577-78 (1942). The court must construe the provisions being interpreted to effectuate the municipality's intent in adopting the by-law. See Industrial Fin. Corp. v. State Tax Comm’n., 367 Mass. 360 , 364 (1975). It is settled, however, that where the language of an enactment is clear and unambiguous it should be followed; this is so even if in doing so, hardship results. Massachusetts Mut. Life Ins. Co. v. Comm'r of Corps. & Tax’n., 363 Mass. 685 , 690 (1973). When a zoning by-law is clear on its face, no further interpretation is required. See Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 478 (1986); see also Massachusetts Broken Stone Co. v. Weston, 430 Mass. 637 , 640 (2000).

A court “must construe the statute 'in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.' ” Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617 (1983), quoting Industrial Fin. Corp. v. State Tax Comm'n, 367 Mass. 360 , 364 (1975). The proper starting point is therefore the plain language of the statute, see, e.g., Simon v. State Examiners of Electricians, 395 Mass. 238 , 242 (1985), but a court also may, in appropriate cases, seek guidance from legislative history, see Oxford v. Oxford Water Co., 391 Mass. 581 , 587-88 (1984), quoting Commonwealth v. Welosky, 276 Mass. 398 , 401-02 (1931), cert. denied, 284 U.S. 684 (1932), the language and construction of related statutes, see, e.g., Boswell v. Zephyr Lines, Inc., 414 Mass. 241 , 247 (1993), and the law of other jurisdictions, see, e.g., Commonwealth v. Melton, 436 Mass. 291 , 296-97 (2002); Commonwealth v. Donovan, 395 Mass. 20 , 29-30 (1985). “It is a well-established canon of statutory construction that a strictly literal reading of a statute should not be adopted if the result will be to thwart or hamper the accomplishment of the statute's obvious purpose, and if another construction which would avoid this undesirable result is possible." See Watros v. Greater Lynn Mental Health & Retardation Ass'n, 421 Mass. 106 , 113 (1995).

The parties agree that the case before me lends itself to resolution on summary judgment, that there is no dispute as to any fact which is material, and that the ruling on the pending motions is one properly arrived at by the court as matter of law. The court’s resolution of the summary judgment requests is governed by the interpretation of the provisions of Article 7 of the Westport Zoning By-Laws. The two by-law provisions at issue are Section or Article 7.0 and Section or Article 7.5.

The parties agree that Section 7.0, considered alone, provides an exemption for Lots 5 and 6 that would permit them each to be a lot suitable for building a single family dwelling. Section 7.0, in isolation, is straightforward and provides protection to any lot that complied with previously approved intensity regulations so long as it was recorded in the Registry of Deeds at the effective date of 7.0. At the time the Plan was drawn and recorded in 1956, there were no area or frontage requirements in the district within the Town where the plaintiff's lots are located. The first lot area and frontage requirements applicable to plaintiff's Lots were adopted in 1957. The 1957 By-Laws required lots to have at least 20,000 square feet of area and 100 feet of frontage to be improved with a single family home. (There evidently was a modest 4,000 square foot minimum lot size in effect in the Town since as early as 1931, but the record tends to show that that regulation applied to a “Zone A” district, and did not concern the district in which the plaintiff’s Lots lie.)

The exemption now codified in Section 7.0 was enacted in the same year, 1957, that the By-Laws initially imposed dimensional regulations on the Lots. This Section then, and at all times since, extends protection to lots that complied with “previously approved intensity regulations . . . .” This is the first time that in the amendments the words “previously approved intensity regulations” appear. The imposition of dimensional requirements, on the one hand, was matched with the grant of an exemption from regulation for lots which complied with previously approved intensity regulations concerning area and frontage, and were shown on recorded plans or instruments. One question this indulgent language of Section 7.0 raises is whether it applies to the Lots at issue in this case, plaintiff’s Lot 5 and 6, given that the record suggests they were not the subject of any specific numerical minima for area and length of frontage prior to the 1957 dimensional regulation imposing requirements of 20,000 square foot area and 100 foot frontage. Defendants say that, given the apparent lack of any regulation prior to the institution of area and frontage requirements in 1957, the grandfathering clause of Section 7.0 did not apply to plaintiff’s Lots at that time. Defendants observe that the language of the exemption limits it to parcels which complied with “previously approved intensity regulations,” and that, because there was not any such specific numerical regulation in effect governing the Lots, they do not have the benefit of the protective language of Section 7.0 as adopted in 1957.

Plaintiff, on the other hand, contends that the Lots were fully compliant with whatever area and frontage requirements there were in 1957 prior to the enactment of the first regulation in that year. Plaintiff urges the court to read the exemption as available to lots, already properly described in the Registry, which met the zoning laws’ requirements prior to the adoption of the new by-law provision in 1957. In effect, plaintiff asks the court to interpret the exemption language first added in 1957 as applicable to lots properly described of record which met the previously existing area and frontage regulations, if any existed.

Plaintiff’s position on this point is persuasive. The obvious intent of the 1957 enactment was to temper the imposition of dimensional requirements, by affording an indulgence to lots which were already described in the Registry and, in that sense, existing. The enactment sought to protect landowners’ prior expectations of buildability as to these already-established lots; the new local legislation wished to make clear that so long as those lots did not violate the area and frontage requirements previously imposed on them, the right to build on them would be preserved notwithstanding the creation of new area and frontage minima. From the record, it appears that there was no prior area or frontage requirement applicable to the Lots now owned by the plaintiff. They thus were compliant with whatever regulation pre-dated the 1957 law. The Town Meeting in 1957 used the formulation requiring previously recorded lots to comply with “previously approved intensity regulations” to earn exemption because, the record suggests, there were at least some previously-existing dimensional regulations in the Town going back to 1931. For lots to which those earlier regulations long had applied, there was a requirement that they have been in compliance with those earlier regulations when the new and more intensive regulations of 1957 became applicable to them. The language of the 1957 exemption, given the circumstances of its enactment, means that the Town Meeting desired to protect–to grandfather–lots already established of record, so long as up until that enactment the lots could have been built upon without violating lot size or frontage regulations, if any, applicable to the lots.

This exemption continued, as a matter of local zoning law indulgence, for a number of years. It protected Lots 4, 5, and 6. In 1970, after the dwelling house had gone up on Lot 4, the Town amended its zoning laws to increase the dimensional requirements applicable in the district in which the Lots lie. The 1970 regulation set the minimum lot dimensions at 40,000 square feet minimum area, and not less than 100 feet of frontage. However, the enactment provides a number of specified exceptions, including: “the foregoing provisions of this section shall not prohibit the erection of a dwelling in any district upon a vacant lot having less than such minimum requirements as to area or frontage. (1) if such lot was shown on a plan or deed on file in the Registry of Deeds on July 11, 1957 and had a minimum of 30 feet frontage or (2) if the owner of such lot on July 11, 1957 owned no adjoining land available for use in connection with such lot or (3) if such lot has an area of at least 20,000 square feet and a frontage of at least 100 feet and is shown on a plan or deed on file in the Registry of Deeds on the effective date of this by-law or. . . .”

The then unbuilt-upon Lots, Lot 5 and Lot 6, plainly qualified for the continuing exemption addressed by this 1970 provision, which was enacted to accompany the adoption of an increase in the relevant lot size requirement. Bot Lot 5 and Lot 6 were shown on a plan on file in the Registry of Deeds in 1956, and have well more than the minimum of 30 feet in frontage set out in the first subsection of the 1970 exemption language.

The second subsection, which did not even require 30 feet of frontage, was available if the land in question was not available for use in connection with other land. This was not the case, of course, because Lots 5 and 6 were adjoining and in common ownership in 1970, but there was no need to resort to the second subsection of the exemption because the requirements of the first were fully met. Nevertheless, the two subsections, read together, show that the Town Meeting was sensitive to the distinctions between land in common ownership and land which stood alone, and knew how to distinguish those circumstances in determining when to make a grandfathering provision available. Similarly, the Town Meeting also knew how to condition the availability of a grandfathering exemption on the existence of minimum lot size and frontage, as the third subsection of the 1970 exemption enactment shows. It required that, to receive the exemption, a lot exist of record at the time the lot size requirement went from 20,000 to 40,000 square feet, and be shown of record to have both 20,000 square feet in area and 100 feet of frontage.

The import of these provisions is that the legislative body of the Town was quite adept at conditioning entitlement to local grandfathering provisions, based on a variety of grounds, including: the date of the original laying out of a lot, and whether or not the lot met a range of certain minimum dimensions, with the range differing on whether or not the lot was in common control with adjoining land.

There can be no doubt that, following the 1970 zoning change, both Lots 5 and 6, though still vacant, continued to be protected against application of minimum lot area and frontage requirements based on the local zoning law’s indulgence.

Thus, when the Town again increased dimensional requirements in 1973, imposing minima of 60,000 square feet and 150 feet of frontage, both Lot 5 and 6 continued to be exempt. This was so because both Lot 5 and Lot 6 were entitled to the benefit of the grandfathering provision at that time enacted: “Provisions of this section [increasing the minima to 60,000 square feet and 150 feet of frontage] shall not apply to any existing lot, which complied with previously approved intensity regulations as to area and frontage, if such lot was recorded in the Registry of Deeds at the effective date of this regulation.” Both of these Lots complied with the regulations governing them up until this 1973 upzoning, and had been in the same configuration, as a matter of record, since the 1956 Plan went to record. Notably, this 1973 enactment, in contrast to those put in place in some subsections of the exemption provided in conjunction with the preceding 1970 upzoning, imposes no condition that lots not be held in common ownership, nor that there be some minimum dimension such as frontage, to qualify for the indulgence. Lots 5 and 6 each had the benefit of the 1973 enactment’s grandfathering provision when it became effective.

The remaining question is whether the action taken by Town Meeting in 1982, adding Section 7.5 to the Zoning By-Laws, somehow brought about a change in the state of the local bylaws--a change which took away the exemption that until then was available to both Lot 5 and Lot 6. Defendants see in the 1982 enactment an effective repeal of the exemptive provisions of Section 7.0, which were enacted in 1973, based on earlier generous local by-law exemptions going back to the first imposition of dimensional requirements in this district in 1957. Defendants read the 1982 enactment of what is now Section 7.5 as intended by Town Meeting to take away much of the breadth of this long-standing local indulgence, and to require, for the first time, that in all cases a lot be held apart from adjoining land to qualify for protection. Defendants’ argument on this score, however, does not square up with the rules of interpretation the court is obliged to apply to the Zoning By-Laws. The defendants’ position requires the court to conclude that the Town Meeting set out to repeal implicitly the grandfathering provisions of Section 7.0. A ruling that there has been implicit repeal is disfavored generally, and is not indicated on the record before the court in this case.

The Board upheld the decision of the Building Inspector “for the reasons stated in his decision of November 20, 2003.” The Building Inspector's decision noted that the Lots could not benefit from the grandfather provisions in Section 7.5 because the Lots were held in common ownership and were “commonly joined.” Nowhere in the denial letter does the Building Inspector address the grandfather exemption which is part of Section 7.0.

It is incorrect to interpret Section 7.5 in a way that applies Section 7.0 dimensional regulations, without grandfathering of any sort, to lots commonly owned with adjoining land. To do that is to conclude that Town Meeting in 1982 impliedly repealed Section 7.0's grandfather protection, notwithstanding that the Town had an extensive history of over a quarter-century of legislatively preserving the buildability of lots which had been of record in 1957--an indulgence that at all times applied to lots which were held in common ownership and control.

Implied repeal is disfavored as a matter of statutory interpretation. "We will find an implied repeal of one statute by another only when `the prior statute is so repugnant to, and inconsistent with, the later enactment that both cannot stand.'" Boston v. Board of Educ., 392 Mass. 788 , 792 (1984), quoting Commonwealth v. Graham, 388 Mass. 115 , 125 (1983).

The plaintiff contends that Sections 7.0 and 7.5 are not inconsistent with each other, but merely provide protection to different types of lots. In plaintiff’s view, Section 7.0 protects those lots that previously conformed to approved intensity regulations, regardless of current size, frontage, or common ownership; Section 7.5 extends protections to lots recorded prior to its enactment in 1982, even if they were not previously conforming, so long as the lots have a minimum area of 20,000 square feet and frontage of 100 feet, and are not held in common ownership with adjoining lots.

When a court seeks to interpret a zoning by-law, the intent of the local town meeting is controlling, and it is the court's primary purpose to determine that intent. See King v. Zoning Bd. of Appeals of Chatham, 30 Mass. App. Ct. 938 , 940 (1991); Southern New England Conference Ass'n of Seventh-Day Adventists v. Burlington, 21 Mass. App. Ct. 701 , 709 (1986).

Section 7.5 was adopted at a special town meeting in 1982. Nothing in the record concerning that Town Meeting indicates that Section 7.5 was intended to have any repealing or limiting effect on Section 7.0. As recounted in its minutes of the meeting at which it considered the amendment prior to Town Meeting, the Town’s Planning Board discussed the proposed changes to the intensity requirements. The minutes contain no reference to Section 7.0's grandfather provisions, nor to any attempt to limit the number of lots then grandfathered under that section. In fact, the Planning Board expresses concern that it may be appropriate to provide relief to long-term owners of some lots with less than 60,000 square feet and 150 feet of frontage: “The Planning Board feels that it may be appropriate to provide relief for persons with long term ownership of some lots with less than 60,000 sq. ft. and 150 ft. frontage.” The thrust of the Planning Board’s concern was to extend, or broaden, the grandfathering provisions that the Town long had provided indulgently to landowners, not, as defendants suggest, to retract that indulgence by for the first time limiting the protection to earlier-recorded lots that were not commonly owned and controlled.

The affidavit of long-time town counsel Carleton Lees, Esquire, suggests a plausible explanation (and the only one fairly discernable in the record) for the source of concern in the Town in 1982 which would have led to the 1982 enactment of what is now Section 7.5. Lees, who served as town counsel from 1972 to 1992, avers that the 1982 enactment addressed a condition that had arisen in the Town at that time as a result of the Planning Board’s practice of approving residential subdivision plans in the years from 1972 (or earlier) through 1975, even though those plans showed residential lots of only 20,000 square feet. Because the Zoning By-Laws had in 1970 increased the area requirement to 40,000, and were amended again in 1972 to make the minimum area 60,000 square feet, the Planning Board’s approval of subdivision plans showing lots of only 20,000 square feet was problematic. While some of those lots on those approved plans might otherwise have been lawful – grandfathered under the exemptions of the Zoning By-Laws – most would not have been, given that these were new plans of subdivision being considered and approved by the Planning Board.

Thus, the only fair inference from the Lees affidavit is that a purpose of the enactment, in 1982, of what is now Section 7.5 was to legitimize the buildable status of lots which, at that time, were established of record with at least 20,000 square feet and 100 feet of frontage, and were not in common ownership or control with other lots. In doing so, the Town Meeting in 1982 gave additional exemption to the end users of lots shown on subdivision plans erroneously approved by the Planning Board after the upzoning amendments to the Zoning By-Laws which had imposed the 40,000 and then 60,000 lot size minima. Without this extra municipal grace, these lots would have been in a difficult legal status, and those individuals who had bought them, relying on the Planning Board’s approval of the subdivision, might have seen their investment frustrated. Lots protected by this 1982 amendment were not in common ownership with neighboring lots, because by the time of the 1982 enactment they would have been acquired by individual owners. The 1982 amendment was directed to help individual lot owners who had been misled by the Planning Board’s faulty approval, and was not passed for the benefit of the original subdividers.

Defendants moved to strike the Lees affidavit. I deny that request, ruling that the affidavit, at least to the extent relevant to the analysis of the motivation for the 1982 amendment of the Zoning By-Laws, was based on actual personal knowledge of Mr. Lees, and was otherwise properly in the record pursuant to Mass. R. Civ. P. 56(e). There is no countervailing evidence within the record tending to cast into dispute the assertions of the Lees affidavit on this point, so, even with the forgiving standard I am bound to apply on summary judgment, I find and rule that there is not dispute of fact in this regard which would justify denial of plaintiff’s motion.

The import of the Lees affidavit is that there was a logical, understandable reason for the enactment in 1982 of what is now Section 7.5, a reason which does not in any way suggest a legislative intention to repeal the grandfathering provisions currently codified under Section 7.0. The evidence supplied by the Lees affidavit buttresses the ruling that I would in any event make concerning the interaction between Sections 7.0 and 7.5–that the later-enacted Section 7.5 does not, on its plain language alone, work a repeal of Section 7.0. Section 7.5 would have had to speak far more explicitly to undo the Zoning By-Law’s long-standing protections for prior recorded lots–protections which calculatedly were made available to lots like Lots 5 and 6 notwithstanding that they always had been in common ownership.

In ruling as I do on the cross-motions for summary judgment, I am mindful that, in general, zoning law is directed to bringing land into compliance with current dimensional regulations. As a general matter, undersized adjoining lots under common control become “merged” for purposes of achieving, or more closely achieving, dimensional compliance with the current zoning law. Where an owner of a nonconforming or substandard lot has adjoining land available for use in satisfying zoning by-law requirements, that adjoining land must be added to the substandard lot to bring it into conformity with the requirements or, at least, make the substandard lot less substandard. Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963). The general trend of the decisional law regarding lots which fail to meet current zoning dimensional requirements would require a merger of adjoining sub-sized lots held in common ownership or control. See, eg., Preston v. Hull, 51 Mass. App. Ct. 236 , 238 (2001).

Most cases, however, forcing owners to merge adjoining parcels are decided under those provisions of G. L. c. 40A, § 6 which protect only residential lots “not held in common ownership with any adjoining land.” Id. The decisional law long has recognized that a municipality has freedom to expand beyond the protections that section six of chapter 40A require at a minimum in every city and town. Many cases establish the full prerogative of municipalities to legislate in a manner which gives far greater indulgence to the ability to build upon lots no longer dimensionally compliant with current zoning rules. And one of the indulgences a municipality properly may extend is the lifting of section six’s requirement that adjoining commonly-owned lots be merged. A city or town can dispense with the merger rule, and there are many examples in the decisional law where a municipality has done just that. See Luttinger v. Truro Zoning Bd. of Appeals, 11 LCR 72 , 75 (2003).

Courts have upheld local by-law protections that do not include a merger requirement. In Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521 (1987), the Court applied a by-law provision which protected lots, even if in common ownership, from later increases in minimum size regulations, as long as the lots met certain minima as of a specific date. The by-law provision was specific in reserving the exemption; it was available to a lot “regardless of a common ownership with that of adjoining land . . . .” Id., at 521-22.

A municipal grandfather provision can be clear enough to exempt nonconforming lots without directly mentioning and negating the requirement for merger of commonly owned lots. For example, this court has ruled that by-law grandfather provisions enacted in Swampscott, which gave protection to lots described in prior recorded deeds, applied without any requirement to apply the merger doctrine. Lahti v. Shutzer, 5 LCR 1 (1996); Bloch v. Swampscott, 4 LCR 18 (1996). The Swampscott by-law provision exempted lots from increased dimensional requirements if they were described “by deed recorded with the Registry of Deeds . . . prior to March 23, 1948 . . . . ” so long as they complied with prior dimensional table provisions. The court in Lahti ruled that the locus was grandfathered under this by-law provision, despite there being a more general section of the same Swampscott zoning by-law that could be read to require the locus to comply with specific dimensional regulations that it could not meet.

In the case now before me, Article 7.0's language, considered in light of the history of the relevant amendments to the Zoning By-Laws, is clear; the exemption protects separate nonconforming lots, including those in common ownership and control. There is no plausible reading of the exemption that requires commonly-owned adjoining lots, separately shown on a plan recorded in 1956, to be united for the purpose of coming more closely into compliance with the dimensional requirements of the Zoning By-Laws.

Accordingly, Lots 5 and 6 must, under the governing provisions of the Zoning By-Laws, be treated by the Town as not being deficient by way of lot size or frontage. The decisions of the Building Inspector and the Board, which both determined that Lots 5 and 6 lacked the requisite area and frontage to receive building permits, proceeded on legally erroneous grounds. The judgment that I will direct be entered in this case will for this reason annul the Board’s decision, and declare that plaintiff may not be denied building permits for these two Lots on the grounds that they are not of sufficient size or frontage.

Plaintiff’s motion for summary judgment is GRANTED. Defendants’ cross-motion for summary judgment is DENIED.

Judgment accordingly.

Gordon H. Piper


Dated: October 14, 2008.