KEVIN M. FULGONI v. SUSAN MILLER, ROBERT A. REDFERN, JOHN A. JAREMA, PAUL DUSTIN, MICHAEL CONWAY, and PETER TEDESCO, as they are members of the TOWN OF READING ZONING BOARD OF APPEALS

Introduction

This case is the plaintiff’s, Kevin M. Fulgoni, G.L. c. 40A, § 17 appeal of the defendant Town of Reading Zoning Board of Appeals’ (the “ZBA”) decision upholding the building inspector’s denial of the plaintiff’s application for a building permit to construct a single-family dwelling on the property identified as Lot A, South Street in Reading (“Lot A”). Lot A was once part of a larger parcel of land and was located in a Business “C” Zoning District. After the Commonwealth took a portion of Lot A by eminent domain as part of a taking for the alteration of Route 128 (which effectively severed Lot A and other properties from the town’s central business district), the town rezoned the property (and the other affected properties) to a Residential A-1 Zoning District. At the time of the zoning change, Lot A did not meet the area and frontage requirements for a buildable lot in the Residential A-1 Zoning District.

In 2006, the plaintiff applied for a building permit to construct a single-family dwelling on Lot A (now located in an S-15 Residential Zoning District). The building inspector denied that request, stating (among other reasons) that the property did not meet The Town of Reading Zoning By-Laws’ (the “Bylaw”) requirements for the S-15 Zoning District. The plaintiff appealed to the ZBA, arguing that he was entitled to grandfather protection under G.L. c. 40A, § 6 and the Bylaw since Lot A, prior to the rezoning, was in compliance with the Bylaw. The ZBA upheld the building inspector’s denial, finding that Lot A was not entitled to grandfather protection since it could not be developed for residential purposes prior to the zoning change (only certain commercial uses) and thus it was never a lawfully created residential lot prior to the zoning change.

The plaintiff now appeals from the ZBA’s decision. Both parties have filed cross-motions for summary judgment. For the reasons set forth below, I ALLOW the defendants’ motion for summary judgment and DENY the plaintiff’s motion. Lot A is not entitled to grandfather protection under either G.L. c. 40A, § 6 or the Bylaw.

Accordingly, the ZBA’s decision is upheld.

Facts

Summary judgment is appropriately entered when, as here, “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56; Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976). The following facts are undisputed.

Plaintiff Kevin M. Fulgoni owns the property identified as Lot A, South Street in Reading. Lot A is located in the S-15 Residential Zoning District and is currently vacant. It was once part of a larger parcel of land (containing approximately 27,830 square feet) owned by Herbert McCarthy by deed dated September 19, 1952 and recorded in the Middlesex South Registry of Deeds in Book 7956, Page 491. In 1952, Lot A was located in the Business “C” Zoning District.

In 1959, the Commonwealth took a portion of Lot A by eminent domain as part of a taking for the alteration of Route 128. [Note 1] Layout No. 4913 and Order of Taking (Nov. 24, 1959), recorded in the Middlesex South Registry of Deeds in Book 9519, Page 302 (the taking for Lot A is described on Page 311 as Parcel 5-RT-4). As a result, Lot A was reduced to approximately 5,336 square feet of area and approximately 52.04 feet of frontage. The parties agree that the resulting Lot A conformed to the requirements of the Business “C” Zoning District that it was located in since the bylaw in effect at that time had no minimum area or frontage requirements for such a district. [Note 2]

However, on June 23, 1966, Lot A and other parcels similarly affected by the taking were rezoned from the Business “C” Zoning District to the Residence A-1 Zoning District at a Special Town Meeting. At that meeting, the Planning Board reported that the taking

changed the complete character of this land [(all of the impacted parcels)], eliminating its entire frontage along Main Street, reducing its size and leaving its only access on South Street in a residential district. It is the opinion of this Board that this district no longer serves the original intent of its zone and we unanimously recommend that this parcel be rezoned to the proposed district, Residence ‘A-1’.

Town of Reading Annual Report at 62 (1966). The Special Town Meeting voted 138 to 1 in favor of the rezoning. Id. In 1966, Reading’s zoning bylaw required a minimum lot size of 10,000 square feet and eighty feet of frontage for a lot located in the Residential A-1 Zoning District. 1966 Bylaw §§ V.1, VI.1, Table of Dimensions. It is undisputed that Lot A did not in 1966, and does not now, meet these requirements. Furthermore, Lot A does not meet the current Bylaw requirements for a lot in an S-15 Residential Zoning District, which requires 15,000 square feet of area and 100 feet of frontage. Bylaw § 5.1.2.

On February 13, 2006, the plaintiff applied for a building permit to construct a single-family dwelling on Lot A. [Note 3] On March 13, 2006, the building inspector denied the plaintiff’s application for a building permit,

the reason being information submitted does not comply with or contain the following: CMR - Sixth Edition, Section 110.8 Engineering Details, Reports, Calculations, Plans and Specifications: Certified Plot Plan (not submitted with application)[,] No Fee[,] Other – Assessors map 0006 parcel 0027 indicates a lot of 5730 sf, this lot is located in an S-15 district. Your proposal to construct a single family dwelling on this lot is hereby denied. The information submitted does not comply with the Town of Reading By-Laws for an S-15 district. I suggest at this time that you approach the Zoning Board of Appeals for whatever relief that may be necessary.

Building Permit Review to Kevin Fulgoni from C. Glen Redmond, Commissioner of Buildings (March 13, 2006).

The plaintiff appealed from the building inspector’s denial of the building permit to the ZBA. On August 17, 2006 [Note 4] (filed with the town clerk on Aug. 31, 2006), the ZBA upheld the building inspector’s decision. In its decision, the ZBA determined that Lot A was not entitled to the protections of G.L. c. 40A, § 6:

the [ZBA] concluded that based in part on the plain reading of the statute, the lot must have been available for residential development prior to the increased zoning requirements from which protection is sought. As a result, since the Property was not available for residential use as of September 19, 1952, it is not entitled to protection under M.G.L. c. 40A, § 6 as a pre-existing nonconforming lot.

Town of Reading Decision of the Board of Appeals on the Petition of Kevin Fulgoni for Property Located at Lot A, South Street in Reading Massachusetts at 2 (Aug. 17, 2006) (hereinafter, the “ZBA Decision”).

The ZBA also held that Lot A was not afforded protection under Bylaw § 6.3, “which seemingly affords greater protection to nonconforming lots.” Id. The ZBA noted,

Section 6.3.12 states that ‘A lot, which is nonconforming, shall not preclude the issuance of permits allowed pursuant otherwise in this Zoning By-law.’ However, the introductory paragraph of Section 6.3 also suggests that the additional protections of this Section apply to lots only if they were lawfully created. Since the use of Lot A for residential development was never permitted by the Zoning By-law, the [ZBA] concluded that it was not lawfully created for the purposes of Section 6.3.

Id.

The plaintiff now appeals from the ZBA Decision pursuant to G.L. c. 40A, § 17, claiming that Lot A meets the standards of G.L. c. 40A, § 6, para. 4. Specifically, the plaintiff argues that there is no requirement that a lot be available for residential purposes prior to the zoning change in order to receive protection as a buildable residential lot. Alternatively, the plaintiff argues that Bylaw § 6.3 provides greater protection than G.L. c. 40A, § 6 and allows the plaintiff to obtain a building permit for a single-family dwelling. The defendants argue that the plaintiff is not entitled to protection under either G.L. c. 40A, § 6 or Bylaw § 6.3 since Lot A was located in a commercial district that did not allow residential uses prior to the zoning change. Both parties have filed motions for summary judgment.

Analysis

Lot A is not Entitled to Protection of G.L. c. 40A, § 6

G.L. c. 40A, § 6, para. 4, sentence 1 provides the following:

Any 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 parties agree that Lot A “was not held in common ownership with any adjoining land” and it has “at least five thousand square feet of area and fifty feet of frontage.” The defendants, however, contend that prior to the zoning change, Lot A was not “a lot for single and two-family residential use” and it did not “conform[] to then existing requirements” for a residential lot. They therefore argue that Lot A is not protected by this statutory provision. I agree.

The plaintiff argues that the Supreme Judicial Court and the Appeals Court have both “misstated” and “cited, in error,” Sturges v. Chilmark, 380 Mass. 246 (1980), when they noted that G.L. c. 40A, § 6 protects “once-valid residential lots.” Memorandum of Law in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment at 7-9 (Jan. 22, 2007) (emphasis added). Whether or not these courts have incorrectly applied Sturges, which seems unlikely, this court is bound by such precedent. Accordingly, G.L. c. 40A, § 6, para. 4 applies to “protect once-valid buildable residential lots.” Adamowicz v. Ipswich, 395 Mass. 757 , 764 (1985); see also Chamseddine v. Zoning Bd. of Appeals of Taunton, 70 Mass. App. Ct. 305 , 308 (2007) (“The purpose of [G.L. c. 40A, § 6, fourth par.] is to alleviate the hardship that zoning amendments can cause to small residential owners. It is restricted to the small, one and two-family home owners; it is not available to apartment house owners, much less to commercial and industrial owners.” (emphasis added)); Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 , 239 (2001) (quoting Giovannucci v. Bd. of Appeals of Plainville, 4 Mass. App. Ct. 239 , 242 (1976) (The first sentence of the fourth paragraph of G.L. c. 40A, § 6 “‘grandfathers’ once buildable lots held in separate ownership at the time a zoning change resulted in a particular parcel losing its status as a valid residential lot. The purpose of this provision is ‘to freeze and minimize substandard lots,’ while at the same time protecting landowners from the hardship of not be able to use a once valid residential lot.” (emphasis added)).

Based upon these cases, it is clear that there are “four criteria needed to qualify for grandfather protection under G.L. c. 40A, § 6, fourth par.: that the land be zoned for one or two-family residences; that it not be held in common ownership with adjoining land; that it conformed to then existing requirements; and that it had at least 5,000 square feet and fifty feet of frontage.” Chamseddine, 70 Mass. App. Ct. at 308. “The crucial inquiry for grandfathering purposes is the status of the lot immediately prior to the zoning change that rendered the lot nonconforming.” Preston, 51 Mass. App. Ct. at 239 (internal quotations and citations omitted). Here, it is undisputed that Lot A was located in a commercial district prior to the zoning change. Accordingly, it does not meet the requirement that it be zoned for one- or two-family residences prior to the zoning change and it thus does not receive the protection of G.L. c. 40A, § 6, para. 4. [Note 5], [Note 6]

Lot A Also is not Entitled to Protection under the Bylaw

Bylaw § 6.3.4, Lawfully Created Situations, provides the following:

A use, building, structure, lot, parking area, loading bay, sign, landscaping or any other activity is considered to be lawfully created with respect to zoning requirements if:

1. It was in existence on March 16, 1942 when the Zoning By-Law was originally adopted, or

2. Subsequent to March 16, 1942, it was permitted by the Zoning By-Law either by right or by Special Permit and was in existence prior to the effective date of any amendment, which rendered it nonconforming.

The Bylaw also defines nonconforming as “[a] condition[,] structure or use inconsistent with this By-Law, and lawfully in existence at the time the provision with which it does not conform became effective.” Bylaw § 2.2.22.

Here, Lot A “was permitted by the Zoning By-Law . . . by right . . . and was in existence prior to the effective date of any amendment, which rendered it nonconforming” to the following extent, and the following extent only. Prior to rezoning, Lot A was in a Business “C” Zoning District and conformed to the area and frontage requirements for that district. However, the plaintiff seeks to construct a single-family dwelling on that lot, which is an entirely different use. [Note 7] Again, the lot was previously zoned for commercial purposes. After the rezoning, which rendered Lot A nonconforming, it was zoned for residential purposes. Lot A, therefore, was never “permitted by the Zoning By-Law either by right or by Special Permit” to be used for residential purposes – the plaintiff never was permitted to construct a single-family dwelling on Lot A prior to rezoning. Therefore, the use of the lot for residential purposes cannot be considered a “lawfully created situation” under Bylaw § 6.3.4.

This result is further supported by reviewing the Bylaw’s definition of “nonconforming,” quoted above. Prior to the rezoning, the Bylaw required 10,000 square feet of area and eighty feet of frontage for a lot in a Residence A-1 Zoning District. [Note 8] 1966 Bylaw §§ V.1, VI.1, Table of Dimensions. Lot A did not conform to these area and frontage provisions for a residential use and, as a result, it cannot be considered a lawfully created nonconforming lot or use and cannot receive grandfather protection under the Bylaw provisions.

Finally, it is important to note that although I have independently interpreted the Bylaw provisions at issue here and have found that the ZBA Decision must be upheld, if there were any lingering doubt as to the propriety of the ZBA Decision, the ZBA’s “reasonable interpretation” of its own bylaw provisions at issue here is entitled to deference. Livoli, 42 Mass. App. Ct. 921 , 922 (1997); see also Tanner v. Bd. of Appeals of Boxford, 61 Mass. App. Ct. 647 , 649 (2004). For all of the foregoing reasons, the ZBA Decision is thus upheld.

This result may seem harsh and perhaps it is, but it is inescapable. Both before and after the rezoning, Lot A did not contain the required area or frontage needed to construct a single-family dwelling. See note 8. Since the plaintiff was never entitled to construct a single-family dwelling on Lot A, the property is not entitled to receive grandfather protection. The plaintiff, however, is not without recourse – he can apply for a variance from these dimensional requirements or, perhaps, unless otherwise barred, a takings claim for the damages he has suffered, if any, due to the original taking and/or the subsequent rezoning.

Conclusion

For the foregoing reasons, I ALLOW the defendants’ motion for summary judgment and DENY the plaintiff’s motion. I find that the plaintiff is not entitled to grandfather protection under either G.L. c. 40A, § 6 or the Bylaw. The ZBA Decision is thus upheld. The plaintiff’s claims are dismissed in their entirety, with prejudice. Judgment shall issue accordingly.

SO ORDERED.

By the court (Long, J.)

Attest:

Deborah J. Patterson, Recorder

Dated: 9 January 2009