This case is before the court (Piper, J.) on a motion by the plaintiff for partial summary judgment and a cross motion for partial summary judgment by the defendants. In the relevant part of this action, filed February 15, 2007, plaintiffs seek pursuant to G.L. c. 240, § 14A a determination as to the scope and validity of the frontage requirements of the Milton Zoning By-law, as applied to the plaintiffs land.
In the pending motions, the parties seek an order for partial summary judgment on Count III of the complaint, brought under G.L. c. 240, §14A. Plaintiff asks the court to rule that the parcel of land he owns in Milton is a lawful, preexisting, nonconforming lot that is protected under G.L. c. 40A, §6 from later increases in the requirements for lot frontage under the Milton Zoning By-law. In their cross-motion, defendants seek a ruling that the plaintiffs lot lacks protection under G.L. c. 40A, §6 as to frontage, must comply with the by-laws requirement that the lot have frontage on a street, and, because it lacks that frontage, may not be lawfully built upon by plaintiff.
The plaintiff filed a motion for partial summary judgment on October 19, 2007 and filed a supporting memorandum of law. On November 21, 2007, the defendants filed an opposition to the plaintiffs motion for partial summary judgment, a cross motion for partial summary judgment, and a supporting memorandum of law. The motions for summary judgment were argued to the court and taken under advisement. The following facts are properly before the court for its consideration based on materials submitted pursuant to Mass. R. Civ. P. 56(c) and are undisputed:
1. The plaintiff, Charles L. Bosworth, (plaintiff), owns of record a parcel of land (Locus) off Hillside Street in Milton comprising approximately 93,293 square feet (2.14 acres), by virtue of a deed dated January 8, 2003 and recorded with the Norfolk County Registry of Deeds (Registry) in Book 18028, Page 173. Locus is shown on Milton Assessors Map N as Block 14, Lot 4L.
2. The Town of Milton first adopted a zoning bylaw on January 29, 1938, effective as of
February 10, 1938 (1938 By-law).
3. Section IV.A.4 of the 1938 By-law sets forth the method for calculating frontage as
follows:
Frontage, as required in the foregoing provisions of this section, shall be determined as follows: In the case of a lot fronting on a street, the distance shall be measured along the street line from one side line of the lot to the other and the distance shall also be measured between said side lines along a line which marks the required front setback of the dwelling on such lot, and the longer of said distances shall determine the frontage of such lot. In the case of a lot not fronting on any street, the distance shall be measured from one side line of the lot to the other along the line designated as the front line of the lot on the plot filed in accordance with this by-law with the Building Inspector as a part of an application for a building permit, and such distance shall determine the frontage of such lot.
3. Section IV.A.4 of the Milton Zoning Bylaw was amended on March 9, 1957 (1957
Amendment) to read as follows:
Frontage, as required in the foregoing provision of this section, shall be determined as follows: The distance shall be measured along the street line from one side line of the lot to the other and the distance shall also be measured between said side lines along a line which marks the required front setback of the dwelling on such lot, and the longer of said distances shall determine the frontage of such lot.
4. By deed dated January 15, 1946, Frederick Chase conveyed Lot D (Lot D) to Nancy C. Perry. Lot D is shown on a plan (1946 Plan) entitled Plan of Land in Milton, Mass., dated January 11, 1946, by Everett M. Brooks, and recorded in the Registry as Plan 29 of 1946 in Plan Book 136. As shown on the 1946 Plan, Lot D was improved with a single-family residence, a brick garage, and a tennis court at the time it was acquired by Nancy Perry in 1946. As further shown on the 1946 Plan, Lot D does not have any direct physical frontage on Hillside Street or any other public way. Lot D is accessed by a driveway that passes over the land of others before intersecting with Hillside Street.
5. An instrument, executed by Alexander Forbes, dated September 28, 1954 and
recorded at the Registry in Book 3306, Page 359, established a fifty-foot wide right-of-way (Right-of-Way) that extends from Hillside Street to Harland Street. The document states in pertinent part, Alexander Forbes is establishing but not at this time constructing a fifty foot street extending from Hillside Street Northwesterly and Northerly over said premises and other land of Alexander Forbes to Harland Street.
6. By deed (Blenkhorn Deed) dated September 28, 1954, and recorded with the Registry in Book 3306, Page 363, Alexander Forbes conveyed Lot B to George P. Blenkhorn. Lot B is shown on a plan (1941 Plan) entitled Plan of Land in Milton, Mass., dated January 11, 1941, by Everett M. Brooks, and recorded with the Registry as Plan 21 of 1941 in Book 2316, Page 151.
7. By deed (Perry Deed) dated May 14, 1956 and recorded in the Registry in Book 3472, Page 433, Henry S. Forbes conveyed to Nancy C. Perry a parcel of land (Bosworth Lot or Locus) adjacent to Lot D. The Bosworth Lot is shown on a plan (Locus Plan) entitled Preliminary Subdivision Plan Off Hillside Street in Milton, MA prepared by The Decelle Group, and dated February 24, 2003, as N/F Charles L. Bosworth Map 4/14 Plot 4L 89260 S.F. +/- The Bosworth Lot, which has been vacant since its creation in 1956, does not have any direct physical frontage on Hillside Street or any other public way.
8. At the time Nancy C. Perry acquired the Bosworth Lot in 1956, both Lot D and the
Bosworth Lot exceeded the applicable minimum lot-size requirement, which is currently 80,000 square feet.
9. By deed dated August 24, 1959 and recorded with the Registry in Book 3757, Page 27, Nancy C. Perry conveyed Lot D and the Bosworth Lot to Gerald Sibley and Jane Sibley.
10. By deed dated January 25, 1973 and recorded with the Registry in Book 4909, Page 318,
Gerald Sibley conveyed Lot D and the Bosworth Lot to Jane Sibley.
11. By deed dated February 14, 1979 and recorded with the Registry in Book 5573, Page 76,
Jane Sibley conveyed Lot D to Alfred C. Angelone and Sheila H. Angelone, husband and wife as tenants by the entirety.
12. By deed dated June 26, 2001 and recorded with the Registry in Book 15197, Page 001,
Jane Sibley conveyed the Bosworth Lot to Majico, LLC.
13. By deed dated January 8, 2003 and recorded with the Registry in Book 18028, Page 173,
Majico, LLC conveyed the Bosworth Lot to Bosworth.
The foregoing facts appear without substantial controversy, and are deemed established by the court for the purpose of any trial which may take place in this matter. Mass. R. Civ. P. 56(d).
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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 , 643-644 (2002); Mass. R. Civ. P. 56 (c). The moving party bears the burden of affirmatively showing that there is no triable issue of fact. Ng. Bros., 436 Mass. at 644. 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, 459 U.S. 970 (1982).
This case is ripe for summary judgment because there is no issue of genuine material fact. The plaintiff argues that under G. L. c. 40A, § 6 the Bosworth Lot is protected from subsequent increases in the bylaws frontage requirements, and that the statutes common ownership proviso does not apply. The defendants counter that G. L. c. 40A, § 6 is not the controlling statute, and that even if it were, the statutes common ownership proviso prevents the statute from protecting the buildability of the Bosworth Lot under this set of facts.
The parties generally agree that the 1957 Amendment, in deleting from the by-laws frontage section the language beginning ...[i]n the case of a lot not fronting on any street..., took away any right that prior to then existed for a lot to satisfy the frontage requirement without having an actual physical frontage directly on a street. (See generally Gem Properties, Inc. v. Board of Appeals of Milton, 341 Mass. 99 (1960) for a discussion of this change to the Milton by-law.) Because the Bosworth Lot was created of record by the Perry Deed, recorded in 1956, a year before the 1957 Amendment, the parties square off on the issue whether the Bosworth Lot can, as a prior nonconforming lot, be protected against the current requirement of actual physical frontage on a street, something the Bosworth Lot plainly lacks.
There is the threshold question about which version of the statute controls the courts decision in this matter. The parties disagree, albeit mildly, as to which grandfathering statute applies. The plaintiff argues that it is the current version of the grandfathering statute, G. L. c. 40A, § 6. The defendants argue that what controls is the statute in effect at the time that the Milton bylaw was amended by the 1957 Amendment, causing the Bosworth Lot, which had no physical frontage on any street, to become nonconforming-- . L. c. 40A, § 5 (1954). The distinction under the present facts is significant. If the old statute applies, then the amendment to the zoning bylaw would apply to any change in use or to any alteration of a building or structure on the land. The newer version of the statute affords greater protection, in certain cases, and extends it even to development of vacant lots.
There is ample case law suggesting that the current version of G. L. c. 40A, § 6 is the one which the court must apply in the pending case. In Rourke v. Rothman, 448 Mass. 190 (2007), the Supreme Judicial Court applied the current version of G. L. c. 40A, § 6. In Rourke, the court was called upon to determine whether a previously grandfathered nonconforming parcel of land was buildable in March, 1970, the date when it ceased to be in common ownership with an adjoining lot. The court did not apply the predecessor version of section 6, which was in effect in March, 1970. In Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236 (2001), the court used the current version of G. L. c. 40A, § 6 to determine whether two adjoining lots, which became non-conforming as a result of a 1969 zoning change, had merged or were entitled to grandfather protection under section 6. Again, the court did not look to the predecessor version of section 6 that was in effect at the time. The more expansive protective provisions of the current version of section 6 controlled.
The conclusion that the current version of section 6 is the one which the court ought to employ in considering the pending motions is supported by the provisions of the enactment which put those new provisions in place. St. 1975, c. 808, §5 established a phase-in period for the transition to the new statutes provisions: ...provided that no later than June thirtieth, nineteen hundred and seventy-eight all zoning ordinances and by-laws shall be brought into conformity with the provisions of this chapter and shall be governed hereby, and thereafter no provisions of chapter forty A in effect prior to January first, nineteen hundred and seventy-six shall govern zoning ordinances and by-law.
Based on the case law and the language of the relevant session law, the court rules that the current grandfathering statute, G. L. c. 40A, § 6, as now in effect, applies in this case. That statute, in its fourth paragraph, states in relevant part that:
[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 requirement but at least five thousand square feet of area and fifty feet of frontage.
The Supreme Judicial Court has interpreted the statutory words time of recording or endorsement to mean the time of the most recent instrument of record prior to the effective date of the zoning change. Rourke, 448 Mass. at 191, citing Adamowicz v. Ipswich, 395 Mass. 757 , 764 (1985). Here, the most recent instrument of record prior to the bylaw amendment that changed the method for calculating frontage (the 1957 Amendment) is the May 14, 1956 Perry Deed, from Henry S. Forbes to Nancy C. Perry. At the time of that conveyance, the Bosworth Lot conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. G. L. c. 40A, § 6. Frontage is defined by the bylaw in effect as of the time of the conveyance. See Clark v. Wagoner, 2 LCR 1 , 2 (1994) (Misc. Case No. 179250) (Cauchon, J.) (holding that where a change in definition of frontage standards in a new bylaw adds a threshold requirement not found in the previous bylaw, minimum frontage determinations must be made using the previous bylaw). Therefore, apart from section sixs common ownership proviso, the Bosworth Lot is entitled to grandfather protection under section 6.
The grandfathering provision of section 6 prevents once buildable lots held in separate ownership at the time of a zoning change from losing status as valid residential lots. Preston, 51 Mass. App. Ct. at 239 (2001). One purpose of the provision is to freeze and minimize substandard lots. Id., citing Giovannucci v. Board of Appeals of Plainville, 4 Mass. App. Ct. 239 , 242 (1976).
It is undisputed, however, that the Bosworth Lot and Lot D were, at the time the 1957 Amendment became effective, in common ownership. At that time, neither had any actual physical frontage on a street. Lot D has been improved with residential structures. The Bosworth Lot has been vacant since its creation of record in 1956.
Both the Bosworth Lot and Lot D were, as to frontage, compliant residential lots before the 1957 Amendment took away the right to meet the frontage requirement based on a measurement alone, rather than by providing actual physical frontage on a street. If the two lots had not been held in common ownership, the Bosworth Lot would have been grandfathered. However, the prior nonconforming exemption granted by section 6 does not, by the statutes plain words, apply when the lot owner has adjoining land available for use in satisfying the dimensional non-compliance of the lots involved. The decisional law interpreting section 6 and its predecessors long has insisted on the combination or merger of dimensionally substandard lots in common ownership or control, to the end that their nonconformity be reduced or eliminated. Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963). The rationale of such a provision is that an owner who has or has had adjacent land has it within his power by adding such land to the substandard lot, to comply with the frontage requirement, or, at least, to make the frontage less substandard. Id., citing Rathkopf, Law of Zoning and Planning c. 32, pp. 3-4 (3d ed.).
In Sorenti, where a forty foot frontage requirement was in dispute, the Supreme Judicial Court explained that the owner of a lot cannot avail himself of the statutory exemption for prior lawfully nonconforming lots unless he includes his adjacent land to minimize the nonconformity; otherwise, an owner who owned adjacent lots with frontages of 19 feet and 20 feet, respectively, would have greater building rights than the owner of a single lot with a frontage of 39 feet. Id.
Sorenti was one of a line of cases prior to the enactment of the current version of section 6 which, in the words of the Appeals Court, established a common law principle of merger... Preston v. Hull, supra, 51 Mass. App. Ct. at 240. When section 6 became effective, it codified this decisional law by explicitly requiring that the lot to be grandfathered not be held in common ownership with any adjoining land.... Id. The Preston court, relying on the general rule that [w]e read a statute in light of the common law that existed at the time the statute was enacted... id., concluded that section 6 prevented grandfathering of lots which were separately owned at the time of the relevant zoning change, but which later came into common ownership. The court was in part led to this conclusion by the determination that the merger doctrine is a powerful tool in achieving the very goal of the Zoning Act. Preston, 51 Mass. App. Ct. at 243.
In the case at bar, of course, the Bosworth Lot and Lot D, both lacking any actual physical frontage, were in common ownership at the time of the 1957 Amendment. The defendants find in this fact the end of the inquiry the court needs to make. Defendants argue that the language of section 6 is plain that common ownership at the time of the zoning change precludes affording statutory protection to the Bosworth Lot. Plaintiff, on the other hand, asks the court to delve beneath the language of the statute, and to reach what plaintiff says is its purpose: to require dimensionally deficient lots to be used together to reduce or eliminate their deficiency. Plaintiff argues that, because neither Lot D nor the Bosworth Lot ever have had actual physical frontage on a streetwhich now is a requirement in Milton and has been since 1957the merger of the two lots will accomplish nothing to reduce or eliminate this deficiency under current zoning.
There are two responses to plaintiffs argument. First, the court must interpret and apply section 6 according to the canons of construction that courts are bound to follow when the meaning of a statute is central to the case. When a court seeks to interpret terms used in an enactment, the terms should be interpreted in the context of the [statute] 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). When a court seeks to interpret an enactment, the intent of the legislative body 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 an enactment 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 legislative intent in adopting the law. See Industrial Fin. Corp. v. State Tax Commn., 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. & Taxn., 363 Mass. 685 , 690 (1973). When an enactment 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).
The words of section 6 are clear and they control the courts resolution of the pending motions. The express prohibition on extending section sixs exemption to lots held in common ownership with any adjoining land at the time of the zoning law change is unambiguous, and requires the court to rule that section 6 is unavailable to plaintiff.
The court resists plaintiffs invitation to disregard the plain words of the statute. While [i]t 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 case now before this court does not provide an occasion for invocation of that principle. Plaintiff has not shown in any way that application by the court of the critical words of section 6, as enacted decades ago, will thwart or hamper the accomplishment of the statutes obvious purpose. Plaintiffs counsel conceded at argument that he was aware of no reported appellate decision in which the statutory provisothat section 6's protection not be extended where there is commonly owned land involved--has been disregarded because to do so would not serve the broader purpose of the statute.
At a superficial level, plaintiffs argument has some appeal. He says, in effect: neither Lot D nor the Bosworth Lot have ever had the kind of frontage that the by-law currently requires. Lot D has been built upon in the past. Requiring the two lots to be merged will not supply a single inch of physical frontage along a street to the combined holding. Allowing the Bosworth Lot also to be built upon will not result in the loss of a single additional inch of physical frontage along a street. To require merger under these circumstances will not lead to any more compliance with current zoning than if building is permitted on the Bosworth Lot.
The court is unable to adopt this view. The plaintiffs argument presumes that frontage along a street is nothing but a mere metricthe arithmetic count of the feet and inches a given lot has along the side of a street. This is too simplistic an analysis. The court is convinced that the Milton Town Meeting, in changing the municipal zoning law to insist that each lot have an actual frontage on a street, was concerned about more than measurement.
The current frontage requirement means that a lot must have a sufficiently long direct legal and physical connection to the street, one over which, ordinarily, people and vehicles will pass and repass, to and from the improvements on the lot. In most instances, the frontage will be the place where traffic from the lot enters and exits from the street. It is true that in some cases, the vehicles associated with a lot will not pass over the frontage, but instead will use a right of way for travel to the street. That is evidently what occurs with Lot D, which lacks actual frontage on Hillside Street and has a right of way over intervening land. With the improvements that currently exist on Lot D, there is undoubtedly a certain volume of traffic generated by the use of Lot D which, by passing over a right of way, makes its way to and from the public street. With the addition of another dwelling on the Bosworth Lot, there would be more traffic passing to and from the Bosworth Lot over a right of way to reach the public street system. Public and emergency vehicles would need to make use of rights of way over land of private owners to reach not just the improvements already on Lot D, but also the house Bosworth proposes to erect on his lot.
The 1957 local legislative determination--to require direct frontage on a street--was intended to limit the opportunities to have lots built upon in a configuration that required the use of private rights of way to gain access to the interior lots. This goal of the zoning law would be ignored if section sixs prohibition on protecting commonly owned lots was overridden in this case. The addition of an extra house on the Bosworth Lot--with the extra aggregate density and intensity of use of the two lots that that would engender--would exacerbate the non-conformity created by the 1957 Amendment.
Given the nature of the local regulation at issue in this case, it does not present the right occasion to disregard, for the first time in the statutes history, the express language of section 6 requiring separate ownership of lots as a condition to receiving protection for prior non-conformity. To read away the separate ownership requirement from the statute would frustrate its purpose, rather than promote it.
The court will grant the defendants motion for partial summary judgment on the declaratory judgment count, and deny the plaintiffs motion for partial summary judgment. Judgment will enter on that count that the Bosworth Lot, which does not comply with the current frontage requirement of the zoning by-law, is not entitled to the protection of G.L. c. 40A, §6, because the Bosworth Lot was in common ownership with Lot D at the time of the 1957 Amendment.
At argument, the court understood counsel to agree that, should the court rule as it now has in this Order, the remaining counts of the complaint would become moot. Counsel are requested to confirm this understanding. They are directed to confer and to file with the court a joint written report on their collective or respective positions regarding the viability of the remaining counts in light of this Order. Based on the submission it receives, the court will enter final judgment, or schedule a further hearing or conference.
It is
ORDERED that the Plaintiffs Motion for Partial Summary Judgment is DENIED. It is further
ORDERED that the Defendants Cross Motion for Partial Summary Judgment is GRANTED. It is further
ORDERED that, within twenty days of the date of this Order, counsel are to file the joint written report described in this Order.
So Ordered.
By the Court. (Piper, J.)
Attest:
Deborah J. Patterson
Recorder
Dated: October 14, 2008.
CHARLES L. BOSWORTH v. ALEXANDER WHITESIDE, J. WILLIAM DOLAN, BERNARD J. LYNCH, III, EDWARD DUFFY and EMILY KEY INNES, as they are members of the Milton Planning Board; JAMES G. MULLEN, JR., as he is the Town Clerk of the Town of Milton; and the TOWN OF MILTON