MATTHEW J. DUPUY, as Trustee of C.N. REALTY TRUST v. ERIC EHNSTROM, ELIZABETH HENSON, ALLEN KOLCHINSKY, GEORGE WAUGH, and WILLIAM PEIRSOL, as members of the TOWN OF ORLEANS ZONING BOARD OF APPEALS

Plaintiff, Matthew J. Dupuy, as Trustee of C.N. Realty Trust, commenced this action on January 4, 2006, as an appeal, pursuant to G.L. c. 40A, § 17, of a decision of the defendant, the Town of Orleans Zoning Board of Appeals, to uphold a ruling of the Building Commissioner, concerning the buildability of a parcel of real property, known as and numbered 69 Captain Linnell Road in Orleans, owned of record by plaintiff.

The property is a nonconforming lot in a subdivision created on February 19, 1974. The Town of Orleans Zoning Bylaws provides an exemption for lots in the zoning district in which the subdivision lies, which were in existence on or before August 2, 1973. Plaintiff contends that the existence of the lot relates back to the submission of the original preliminary subdivision plan on March 9, 1973. Defendants counter that the definition of lot in the Zoning Bylaw is clear and does not allow for such an interpretation.

On January 26, 2009, plaintiff filed a Motion for Summary Judgment. Defendant filed a Cross-Motion for Summary Judgment on February 20, 2009. The motions were argued on April 23, 2009, and are the matters presently before the Court.

After reviewing the record before the Court, I find that the following facts are not in dispute:

1. On or about March 9, 1973, Michael A. Dunning submitted a preliminary subdivision plan to the Town of Orleans Planning Board (“Preliminary Plan”).

2. The Preliminary Plan included land which is now 69 Captain Linnell Road in Orleans (“Property”)

3. The subdivision is located within the Residence R Zoning District.

4. Prior to March 13, 1973, the minimum lot size for a buildable lot in the Residence R Zoning District was twenty thousand (20,000) square feet and the minimum lot frontage requirement was one hundred and twenty (120) feet.

5. On March 13, 1973, the Town of Orleans enacted a change in its Zoning Bylaws. The minimum lot size for a buildable lot in the Residence R Zoning District is now forty thousand (40,000) square feet and the minimum lot frontage requirement is one hundred and fifty (150) feet.

6. Section 164-22.A.(3) of Town of Orleans Zoning Bylaws allows for a single-family dwelling on any lot, “which existed on August 2, 1973, which contained at least twenty thousand (20,000) square feet and had a minimum frontage of one hundred twenty (120) feet….”

7. On March 27, 1973, the Planning Board found that the Preliminary Plan was not a proper preliminary plan.

8. On April 9, 1973, Mr. Dunning submitted a new preliminary subdivision plan. On April 24, 1973, the Planning Board disapproved the Preliminary Plan because the lots did not conform to the new zoning requirements of the Residence R Zoning District and because of concerns expressed by the Board of Health.

9. By letter dated May 23, 1973, the Planning Board informed Mr. Dunning that the subdivision plan would not be objected to so long as each lot contained an area exceeding twenty thousand square feet and had at least one hundred and twenty feet of frontage.

10. On or about October 25, 1973, Mr. Dunning submitted a definitive subdivision plan.

11. On February 19, 1974, the Planning Board endorsed the definitive plan.

12. On or about August 5, 2005, plaintiff sought a ruling from Building Commissioner that he was entitled to a building permit for a single-family dwelling on the Property, pursuant to § 164-22.A.(3) of the Zoning Bylaws. On or about August 31, 2005, the Building Commissioner ruled that the Property was not a lot in existence on or before August 2, 1973 because the definitive plan had not been endorsed prior to that date.

13. Plaintiff appealed the ruling to the Zoning Board of Appeals. On December 7, 2005, the Board of Appeals upheld the Commissioner’s ruling. This appeal followed.

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Summary judgment is granted where there are no issues of material fact and when the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue, and its entitlement to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14 , 16-17 (1989). In viewing the record before it, the Court reviews “the evidence in the light most favorable to the nonmoving party….” Donaldson v. Farrakhan, 436 Mass. 94 , 96 (2002).

In weighing the merits of a summary judgment motion, the court must address two questions: (1) whether the factual disputes are genuine, and (2) whether a fact genuinely in dispute is material. Town of Norwood v. Adams-Russell Co., Inc., 401 Mass. 677 , 683 (1988) (citing Anderson v. Liberty, 477 U.S. 242, 247-48 (1986)). “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248 (cited in Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006)); Molly A. v. Comm’r of the Dept. of Mental Retardation, 69 Mass. App. Ct. 267 , 268 n.5 (2007). In order to determine if a dispute about a material fact is genuine, the court must decide whether “the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248.

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). 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). However, where appropriate, summary judgment may enter against the moving party. Mass. R. Civ. P. 56(c).

When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The court does not “pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Id. at 370. However, the court may only consider evidence which meets the requirements of Mass. R. Civ. P. 56(e). That evidence must come from “pleadings, [Note 1] depositions, answers to interrogatories, and responses to requests for admissions under Rule 36, together with…affidavits, if any….” Mass. R. Civ. P. 56(c).

In the instant matter, there are no genuine issues of material fact, within the meaning of Mass. R. Civ. P. 56(c), and, therefore, this case is proper for summary judgment.

General Laws, chapter 40A, § 17 requires that “[t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require.” The Supreme Judicial Court has interpreted § 17 to require that a Court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the board’s findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the Court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmm’n, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).

However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The Court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A Court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the board’s judgment is controlling. ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances the trial court may substitute its judgment for that of the board’s, where “justice and equity” require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.

Therefore, the Court may overturn the board's decision only if the decision is “based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary.” Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. However, where the Court’s findings of fact support any rational basis for the municipal board’s decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.

Furthermore, a municipal authority is entitled to deference as to its interpretation of its own zoning bylaw. Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. Ct. 921 , 923 (1997).

Section 164-22.A.(3) of Town of Orleans Zoning Bylaws allows for a single-family dwelling on any lot, “which existed on August 2, 1973, which contained at least twenty thousand (20,000) square feet and had a minimum frontage of one hundred twenty (120) feet….” “Lot” is defined by § 164-4 as: “An area or parcel of land in undivided ownership with definite boundaries, used or available for use as the site of one (1) or more buildings.”

In the instant case, the definition of a lot is clear and unambiguous. The primary task of a court in interpreting a zoning bylaw is to determine the intent of the legislative body that enacted it. Lowery v. Klemm, 446 Mass. 572 , 576 (2006); Commonwealth v. Valiton, 432 Mass. 647 , 650 (2000); Bd. of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339 (1973). The language of a statute “is the principal source of insight into Legislative purpose.” Commonwealth v. Lightfoot, 391 Mass. 718 , 720 (1984); Hoffman v. Howmedica, Inc., 373 Mass. 32 , 37 (1977). “Where the language of a statute is clear, courts must give effect to its plain and ordinary meaning and the courts need not look beyond the words of the statute itself.” Massachusetts Broken Stone Co. v. Town of Weston, 430 Mass. 637 , 640 (2000); LeClair v. Norwell, 430 Mass. 328 , 335 (1999); Pyle v. Sch. Comm. of S. Hadley, 423 Mass. 283 , 286 (1996).

For a lot to be in existence in the Town of Orleans, it must be defined by “definite boundaries” and be “available” as the site of a building. A preliminary subdivision plan necessarily depicts the lots proposed to subdivide the property. However, this plan is merely an application, the submission of which does not bring the depicted lots into existence. The proposed lot boundaries are, as the name suggests, preliminary and, therefore, at best, approximate. Far from definite, these boundaries are subject to, and very often do, change. This is the function of the preliminary approval process. Here, the plaintiff’s preliminary subdivision plan was altered as a result of initial disapproval by the Planning Board (the plan submitted on March 9, 1973, depicts seventy eight (78) lots but the final definitive subdivision plan depicts seventy six (76)).

Similarly, the submission of a preliminary subdivision plan does not create buildable lots. The purpose of the subdivision process is to determine whether the proposed lots meet the requirements of zoning such that the definitive plan qualifies for endorsement. This is the case even where the proposed lots of the preliminary plan meet zoning requirements in every respect from the outset. The endorsement of the definitive plan is a certification by the municipal board that it has reviewed the plan and found the lots in conformity. It is only then that the lots come into existence and not at anytime prior. Here the Property was not a buildable lot at the time the preliminary plan was submitted. It did not become a buildable lot until the subdivision was approved on February 9, 1974.

Plaintiff argues that although the Property was created by the Planning Board’s endorsement of the definitive subdivision plan on February 9, 1974, its status as a lot must relate back to the time the original preliminary plan was submitted on or about March 9, 1973. However, there is no provision of the Zoning Bylaw that suggest such relation back. Instead, plaintiff points to the fact that although the zoning change took effect on March 13, 1973, the framers set August 2, 1973, as the operative date by which a lot had to exist to qualify under § 164-22.A.(3), almost five months later. Plaintiff argues that this five month gap demonstrates an intent by the town to allow preliminary plans to be filed after the zoning change, suggesting that the town interpreted the Zoning Bylaws to allow for a relation back of lot status. I disagree. The gap merely suggests that the town provided the Planning Board and applicants a five month period in which to wrap up those subdivision plans pending before the Board and filed prior to the zoning change. The purpose of this period was to prevent these applicants from being unfairly punished for having filed a plan just prior to a zoning change.

Plaintiff argues also that if the Zoning Bylaws are not interpreted to allow relation back of lot status, then the purpose of G.L. c. 40A, § 6 and c. 41, § 81Q will be frustrated and, therefore, the Zoning Board’s decision is unreasonable. General Laws chapter 41, § 81Q provides that the zoning bylaw in effect at time that a preliminary plan is submitted shall govern the subdivision process. General Laws chapter 40A, § 6 provides that if the preliminary plan is followed by a definitive plan within seven months and the definitive plan is finally approved, the zoning bylaw in effect at the time that the preliminary plan was submitted shall govern the subdivision for seven years from the date of the endorsement. I agree with plaintiff that the purpose of these statutes is to benefit the applicant by securing or making certain the subdivision regulations and zoning bylaws during the subdivision process and for seven-year period thereafter. However, this purpose is in no way frustrated if lot status is not related back to the time the preliminary plan was submitted. These statutes preserve the zoning bylaw for the specific plan, moving forward and for a limited time; they do not relate the start time of a lot back to the earlier zoning bylaw. In fact, all the lots of the subdivision in this case benefited from the zoning freeze created by G.L. c. 40A, § 6 and c. 41, § 81Q, from March 9, 1973, when the preliminary plan was filed, until February 9, 1981, seven years after the endorsement of the definitive subdivision plan.

Ultimately, the Zoning Board is entitled to deference in its interpretation of the Zoning Bylaw. The Board’s interpretation in its decision is entirely reasonable, and therefore, the Court has no discretion. Accordingly, I rule that the Property is a lot that came into existence on February 19, 1974, and whose lot status does not relate back to the time the original preliminary subdivision plan was submitted.

Plaintiff argues also that the Property is one of the last remaining undeveloped lots of the subdivision. It contends that since the end of the seven-year freeze period, a number of lots of the subdivision have been granted building permits, despite being similarly situated. Plaintiff concludes that the town has until now been interpreting the Zoning Bylaw to relate back lot status. It is well-settled law that municipal decisions do not create binding precedent which may be used to equitably estop a municipality in the proper interpretation or enforcement of its bylaws. Stadium Manor v. Div. of Admin. Law Appeals, 23 Mass. App. Ct. 958 , 962 (1987); Outdoor Adver. Bd. v. Sun Oil Co. of Pennsylvania, 8 Mass. App. Ct. 872 , 873 (1979); Ferrante v. Bd. of Appeals of Northampton, 345 Mass. 158 , 162-63 (1962) (“The plaintiff landowner is presumed to have known of the invalidity…and to have acted at his peril”) (quoting Zahodiakin Engr. Co., v. Zoning Bd. of Adjustment, 8 N.J. 386, 396 (1952)).

In the instant case, the Zoning Board has determined that the lot status of the Property does not relate back to March 9, 1973. The lot was created on February 19, 1974, and therefore, does not qualify for the exception of § 164-22.A.(3). Even if municipal estoppel applied, there is nothing in the record to indicate that the building permit issued to lots after the zoning freeze period were authorized pursuant to the § 164-22.A.(3) exception.

CONCLUSION

For the foregoing reasons, this Court concludes that the ruling of the Town of Orleans Zoning Board of Appeals was proper. The language of the Orleans Zoning Bylaws is clear and unambiguous. There is nothing to suggest an intent that the existence of a lot in an endorsed subdivision relate back to the submission of the original preliminary subdivision plan on March 9, 1973. Accordingly, the plaintiff’s Motion for Summary Judgment is hereby DENIED and the defendant’s Cross-Motion for Summary Judgment is ALLOWED. The ruling of the Town of Orleans Zoning Board of Appeals is AFFIRMED.

Judgment to issue accordingly.

Charles W. Trombly, Jr.

Justice

Dated: May 7, 2009