This matter came before the court on the motion for summary judgment filed by plaintiffs Daniel W. Cronin and Jacquelyn M. Cronin (plaintiffs or Cronins). Pursuant to
G. L. c. 40A, §17, plaintiffs appeal from the decision (Decision) of the Zoning Board of Appeals (Board or ZBA) of the Town of Lunenburg (Town) whose members are defendants. The Board filed the Decision with the Clerk of the Town on May 28, 2008. In its Decision, the Board upheld the denial--by the Towns Acting Building Inspector (inspector), also named as a defendant--of the Cronins application for a residential building permit.
The focus of this litigation is on the compliance with the dimensional zoning requirements of the Town of a lot owned by plaintiffs. The plaintiffs assert that the Town officials involved incorrectly measured this propertys frontage and lot width, and that a proper calculation would show that the relevant portion of plaintiffs land in the Town, numbered 27 Oak Avenue, shown on a recorded plan as Lot 2, all as described more particularly below, has both sufficient frontage and lot width to comply with the municipal zoning law. Because the inspector took the contrary view, concluding that Lot 2 failed to meet these dimensional requirements, he denied a building permit which plaintiffs had sought for an abutting parcel they own, known as Lot 1B.
The inspector determined that, because Lots 1B and 2 had been owned together, and Lot 1B came to be established separately as a result of a division of the larger holding--which left Lot 2 in violation of the contested dimensional requirements--Lot 1B was not eligible for a building permit. The inspector applied the doctrine sometimes referred to as infectious invalidity to determine that, under the circumstances present here, the dimensional shortfalls of Lot 2, which had already been improved with a residential structure, prevented issuance of the requested building permit for construction of a house on currently unimproved Lot 1B. See, on infectious invalidity, Alley v. Building Inspector of Danvers, 354 Mass. 6 (1968).
The inspectors stated grounds for denial were that Lot 2 had insufficient frontage and lot width under the dimensional zoning requirements in the Protective Bylaw of the City of Lunenburg (Bylaw). The Board, in its Decision, upheld these conclusions. The defendants assert that the inspector properly applied the Bylaw, and correctly denied the Cronins building permit request.
On June 13, 2008, the Cronins filed in this court a complaint for judicial review of the Boards denial of their administrative appeal from the building inspectors determination that he could not issue the building permit. On November 17, 2008, plaintiffs filed a motion for summary judgment and a supporting memorandum of law. On December 19, 2008, the defendants filed an opposition to the plaintiffs motion, a cross-motion for summary judgment, and a supporting memorandum of law. After argument, upon review of the record, and following consideration of the moving and supporting papers, the court now decides the motions before it.
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The following facts are properly before the court for its consideration based on materials submitted pursuant to Mass. R. Civ. P 56 (c), and appear to be undisputed:
1. As of 2004, the Cronins owned property in Lunenburg located at 31 Turkey Hill Road. In March of that year, the Cronins purchased the neighboring lot, 27 Oak Avenue, the lot at the intersection of Turkey Hill Road and Oak Avenue.
2. Bylaw Section 2.1.1.17 sets forth the following definition of Frontage:
The linear extent of the line: measured along a street right-of-way
from the intersection of one side lot line to the intersection of the other side of the same lot, provided that; a) The lot is on a street or way legally accepted by the Town Meeting vote, or b) The lot is on a street or a way established by a county, state, or federal authority, or c) The lot is shown on a street or a way established by a subdivision plan approved in accordance with the Subdivision Control Law, or d) The lot is on a street or way on a list maintained by the Town Clerk which is determined to qualify for frontage under the provisions of this section.
3. Bylaw Section 2.1.1.28(b) defines lot width as:
Lot width is the minimum distance between the side lot lines of the lot measured on any line parallel to a line joining the intersection of the side lot line with the right-of-way at any point between said intersection and the nearest point of the principal building and the right-of-way line.
4. At the time of purchase, 27 Oak Avenue had a lot width of 140 feet. In this respect, the defendants concede that 27 Oak Avenue was a lawful, pre-existing non-conforming lot.
5. On March 28, 2005, the Lunenburg Planning Board endorsed, under G. L. c. 41 § 81P, a so-called Approval Not Required Plan titled Plan of Land in Lunenburg, Massachusetts Scale 1 in. = 40 ft. Prepared for: Daniel Cronin (ANR Plan), dated February 15, 2005; the ANR Plan was recorded on April 1, 2005 in the Worcester (Northern District) Registry of Deeds in Plan Book 454, Page 21. A copy of a portion of the ANR Plan is attached to this Decision as an exhibit.
6. As shown on the ANR Plan, Turkey Hill Road and Oak Avenue meet at a rounded corner at the 27 Oak Avenue property, which is shown on the ANR Plan as Lot 2. The ANR Plan shows a curve, as measured along the line of the boundary which Lot 2 has with these adjoining streets, having a radius of twenty feet and a circumference of 31.42 feet.
7. The ANR Plan showed the reconfiguration of the land which had been 27 Oak Avenue and 31 Turkey Hill Road to create, in addition to those two previously built-upon house lots, a new lot (New Lot or Lot 1B) shown on the ANR Plan as Lot 1B, containing 96,762 square feet. It is this Lot 1B for which the unsuccessful application for a building permit was made, giving rise to the appeal now before this court. The New Lot, as shown on the ANR Plan has a 52.88-foot wide stretch of frontage on Turkey Hill Road.
8. According to the ANR Plan, with the creation of the New Lot, 31 Turkey Hill Road, shown as Lot 1A, has 61,043 square feet; 27 Oak Avenue has 40,178 square feet; and the New Lot comprises 96,762 square feet.
9. The ANR plan shows that currently 31 Turkey Hill Road and 27 Oak Avenue each contain one residential building.
10. The ANR Plan also shows that 27 Oak Avenue has two driveways, which enter from both Turkey Hill Road and Oak Avenue. These driveways existed when the plaintiffs purchased the property. 27 Oak Avenue also has a pool located behind the residential structure; the pool is not displayed on the ANR Plan.
11. Neither the New Lot nor 27 Oak Avenue connected to the municipal sewer when the plaintiffs created the New Lot. 27 Oak Avenue depended on a private septic system.
12. In 2004, the plaintiffs proposed to extend the municipal sewer line onto Turkey Hill Road from Oak Avenue, as Turkey Hill Road did not connect to the municipal sewer. This proposal was withdrawn.
13. In January 2005, the plaintiffs engineer, Mr. Steven Marsden (Marsden), met with Building Inspector Sauvageau (Sauvageau) to discuss a proposal to connect the New Lot to the municipal sewer present on Oak Avenue. The plan for sewer connection was to have a five foot wide strip of land, at and formerly part of the southwestern side of Lot 2, separated from Lot 2s ownership and transferred to the undeveloped Lot 1B. This strip, denominated Parcel C on the ANR Plan, was to serve as the locus of the sewer pipe connecting Lot 1B to the sewer main in Oak Avenue.
14. On April 5, 2005, the Lunenburg Selectmen, acting as Sewer Commissioners, approved that plan, in the configuration depicted on the ANR Plan.
15. The plaintiffs transferred by deed the fee ownership of the five-foot wide by approximately 260- foot long strip, Parcel C, to serve as an extension of Lot 1B, along the southwestern lot line of 27 Oak Avenue, permitting the New Lot to connect to the municipal sewer in Oak Avenue. The plaintiffs subsequently received the necessary permits, and installed sewer lines in the strip, to connect both 27 Oak Avenue and the New Lot to the sewer main in Oak Avenue.
16. On February 8, 2008, the plaintiffs applied for a building permit to construct a single-family house on the New Lot.
17. In a letter to the plaintiffs dated February 15, 2008, Alternate Building Inspector Cataldo denied the building permit for the New Lot, stating his conclusion that 27 Oak Avenue did not fulfill the minimum frontage requirement of 100 feet in Bylaw § 2.1.1.17, because, in his view, the transfer of the sewer extension strip, five feet in width, had reduced the frontage of what previously had been the 27 Oak Avenue lot from 103 feet to 98 feet (both as measured along Oak Avenue), resulting in less than the 100 feet required; he also took the position that the new lot lines resulted in a reduced lot width of the 27 Oak Avenue property. For these reasons, the inspector determined that infectious invalidity existed, and that the New Lot could not receive the requested building permit.
18. On March 14, 2008, the plaintiffs appealed the denial of the building permit to the Board. The Board heard the plaintiffs appeal on April 23, 2008 and May 14, 2008.
The Board upheld the Alternate Building Inspectors denial of the building permit for the plaintiffs New Lot in the Decision. This appeal followed.
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Summary judgment is appropriate in those cases where no genuine issues exist as to material fact and where the moving party is entitled to judgment as a matter of law. Community Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). The moving party must affirmatively show the absence of any triable issues or facts. Pederson v. Time Inc., 404 Mass. 14 , 16-17 (1989). In deciding motions for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976). The moving party can satisfy this burden by submitting affirmative evidence showing that the opposing party has no reasonable expectation of proving an essential element of its case or by negating an essential element of the opposing partys case. Kourouvabilis v. General Motors Corp., 410 Mass. 706 , 716 (1991).
On an appeal under G. L. c.40A, §17, the judge hears the matter de novo and determines the validity of the boards decision on the basis of the facts found by the judge. Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass. App. Ct. 343 , 348 (1986).
The defendants contend that, notwithstanding the de novo review ordinary in a case such as the one now before me, this matter is one in which the court addresses an issue of local discretion that requires familiarity with local conditions, and so the court ought review the decision of the zoning board with a good measure of deference. It is certainly true that, in appropriate cases, there is a meaningful place in appeals brought under G.L. 40A, §17 for a court to defer to local knowledge and decisionmaking. The local board of appeals brings to the matter an intimate understanding of the immediate circumstances, of local conditions, and of the background and purposes of the entire [zoning] by-law. . . Berkshire Power Development, Inc. v. Zoning Bd. of Appeals of Agawam, 43 Mass. App. Ct. 828 , 832 (1997) (review of special permit decision) (quoting Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 , 57 (1985))(same). The court gives deference to municipal zoning board decisions when the issue requires particularized local knowledge. Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473 , 479 (1986)(same).
In the case at bar, the primary question for decision involves the interpretation of contested provisions of the municipal zoning law, particularly those which define and regulate minimum frontage and lot width. The task for the court is to read and interpret, as a legal matter, the meaning of these enactments, and, having determined their meaning, to apply the provisions to the facts presented by the Cronins lots, as depicted on the relevant plan. This role is traditionally left to the courts to perform. The language of the Bylaw needs to be read and interpreted, and that is a familiar responsibility of the courts. This is not an instance in which the local Board has made its decision as a discretionary matter, as when a special permit granting authority, exercising the considerable discretion it has in such a case, decides to grant or refuse a special permit. In those kinds of judicial appeals, the courts review is highly deferential.
Here, the question is what the words of the Bylaw mean. The Bylaw is law, locally enacted. To be sure, the view of the zoning board on matters involving interpretation of the bylaw in the municipality is to be sought and considered with respect: at least in the first instance, the boards administrative view is valuable and is wanted. Fitzsimonds, supra, 21 Mass. App. Ct. at 57. If, however, the local Board reads the disputed provisions of the Bylaw in a way which the court determines is at odds with their meaning, as a matter of legal interpretation, then the Boards view on the point must yield to the courts. Otherwise, the Boards interpretation of the law might supplant the meaning of it as enacted legislatively in the Town. If there is a reason to look to the local knowledge residing in the Board to aid in the interpretation or application of the meaning of the Bylaw, then some deference certainly is due the Board. Here, on the central questions--the method the Bylaw establishes for the measurement of the minimum frontage length and minimum lot width which corner lots must supply--there is not an obvious reason which especially calls for resort to particularized local knowledge which might reside in the Board in manner which calls for complete deference. Unless the meaning of the Bylaw provisions is inscrutable as enacted, this is an issue of legal interpretation which focuses on the language of the Bylaw itself. Statutory interpretation presents a question of law for the Court. Boston Police Patrolmen Assn. v. Boston, 435 Mass. 718 , 719 (2002).
Locating Frontage of a Corner Lot
The parties disagree how the Bylaw requires the court to measure the frontage of a corner lot, given their competing interpretation of the relevant words of the Bylaw. The plaintiffs contend that by measuring the length along only one right-of-way, the municipal defendants did not correctly apply the legislative definition of frontage to the Cronins corner lot. Plaintiffs argue that the words of the Bylaw permit (indeed, require) but one interpretation: that the combined length of the boundary lines of their Lot 2 alongside both Turkey Hill Road and Oak Avenue are to be counted as frontage. Counted this way, the Cronins would have more than sufficient frontage for Lot 2 following the splitting off of the five-foot wide strip used to provide the route for the connecting sewer lines.
Bylaw § 2.1.1.17 does not include an additional method for measuring the frontage required of lots that are bounded by two streets, such as the corner lot at issue, Lot 2. To reinforce their contention that Lot 2's sidelines along both streets should be considered, in the aggregate, as frontage, the plaintiffs reach to other sections of the Bylaw, including those relating to driveways, to reinforce their argument. The Bylaw defines driveway as [a] way for the passage of vehicles from the street used to qualify for required frontage to a garage or off-street parking and loading area. Bylaw § 2.1.1.12. The plaintiffs argue that Lot 2's pair of driveways, which enter it from both streets to reach the garage(s) on Lot 2, qualify both streets to be included in the frontage of that lot. The plaintiff looks to Bosworth v. Whiteside for the proposition that in most instances, the frontage will be the place where traffic from the lot enters and exits from the street. Bosworth v. Whiteside, 16 LCR 686 , 689 (2008) (Misc. Case No. 340917) (Piper, J.).
Both the definition of driveway in the Bylaw, and the Bosworth opinion, describe activities that ordinarily take place across the frontage of a lot, rather than activities that per se designate particular lot lines as supplying frontage for zoning purposes. Entry and exit from a lot across a lot line do not necessarily define frontage; traffic also may reach a property using a right-of-way easement over land of another, and that does not necessarily convert the line where the easement meets the lot as frontage for the purpose of measuring minimum required frontage of the lot. Id. The Bylaw definition of driveway requires that it connect to the street which supplies the lots frontage, but frontage, as contemplated by the Bylaw, does not necessarily require a driveway.
Defendants argue that the Bylaw requires frontage to be measured along a street, indicating the intention to limit the measurement of frontage to one street. The examples listed in Bylaw § 2.1.1.17 (a)-(c), which all refer, in the singular, to a street or way, reinforce the legislative emphasis on using a single street. The defendants present alternative definitions of frontage from the Bylaws of other towns which use less restrictive language in defining frontage, such as any, to demonstrate that the language used in the Bylaw intentionally restricts frontage to one street. Defendants position on this is persuasive. It is not possible to ignore the clear meaning and thrust of the Bylaw, which limits the availability of frontage, to meet the required minimum length, to frontage along a single street. Bylaw § 2.1.1.17 limits frontage available to satisfy the minimum required to a length measured along a single street bordering the property, even if the property does border two intersecting rights-of-way.
In determining which lot lines should be designated front, side, or rear, courts have considered [t]he general location, the manner in which the particular lot and its adjacent lots have been laid out, the customs of surveyors in that respect, the uses to which the lot has been put as well as those to which it is proposed to be put, the practices of public officers charged with duties respecting it, and all the other pertinent facts touching the customs of the neighborhood. . . Bianco v. Ashley, 284 Mass. 20 , 25 (1933). Analysis of the uncontested record facts supports the conclusion that Oak Avenue should be designated as the front line for the lot in question, Lot 2. The location of the building on this lot implicates Oak Avenue as the front lot line. Treating Turkey Hill Road as the front of Lot 2, and as the road supplying its frontage, would make the existing building violate front yard setback requirements. What is shown on the ANR Plan as Lot 2 previously had its frontage and its address on Turkey Hill Road, but an application for a residential building permit in 1984 modified the address to what it has been called since, 27 Oak Street. This deliberate selection of Oak Avenue as the street constituting the front line of the parcel was necessary for the then owners to construct the house now on Lot 2 in its present location without violating the existing setback requirements for front and side yards. Plaintiffs have not shown any use of the property that is inconsistent with classifying Oak Avenue as the street constituting the parcels front line. Lot 2, 27 Oak Avenue, has its frontage on Oak Avenue. Lot 2 does not have frontage on Turkey Hill Road.
Measuring the Frontage of a Corner Lot
The parties disagree about the proper measurement of the lots frontage on Oak Avenue. Bylaw § 2.1.1.17 states that frontage is the linear extent of the line: measured along a street right-of-way from the intersection of one side lot line to the intersection of the other side of the same lot. . . The ANR Plan shows that Oak Avenue and Turkey Hill Road do not meet at the point of an angle, but rather along a rounded corner. According to the ANR Plan, the outermost edge of this curve at the southeast of 27 Oak Avenue, at the two streets intersection, follows along a portion of a circle which has a radius of twenty feet for a length of 31.42 feet from the first point at which the road bends, to the end of the curve. Plaintiffs, as an alternative position, assert that some portion of this distance should be included in the measured frontage for 27 Oak Avenue. The defendants read the Bylaw to exclude any of the curivng distance at the meeting of the two streets from the measure of frontage, asserting that the Bylaw requires a linear frontage measurement, which they say definitionally excludes curves.
The Bylaw does not define or otherwise helpfully address what is meant by intersection. The court will look to the plain meaning of the word intersection as a place where two or more lines cross or come together. When two lines cross, there is one single point where the lines intersect. The Bylaw definition of frontage designates two points as the starting and ending point of the measured frontage. These points, included in the extent of a line measuring frontage, are described as the intersection of one side lot line to the intersection of the other side of the same lot. Bylaw § 2.1.1.17. The Bylaw does not include provisions that explicitly exclude curves from inclusion in frontage. Id. The Bylaw does not provide alternate methods for designating the start- or end-points for measuring frontage if the intersection of a side lot line and the frontage occurs on a curved road. It defies logic and ordinary experience to say that the measurement required to determine adequacy of frontage throughout the Town may only be made, under the words of this Bylaw, where the line along the street right-of-way runs entirely straight.
The Board relies on a narrow reading of the word linear in the Bylaw to have the court limit measured frontage to a single straight line. Aside from the presence of linear in the definition (a word which simply restates the noun line) the Bylaw does not explicitly restrict the measurement to only straight lines, and the defendants did not advance any satisfying explanation, supported by the Bylaw, why such a narrow reading would be called for by the Bylaws words. In ordinary usage, lines may curve or bend. In the real world, lot lines certainly do. Dictionary definitions show that a line, in common usage, includes, rather than excludes, lines with curvature. See, e.g., The American Heritage College Dictionary, fourth ed., which defines a line as, among many other things: [a] degree or circle of longitude or latitude drawn on a map or globe..., [t]he equator, [a] border or boundary...[a] demarcation... [a] contour or outline..., [a] mark used to define a shape or represent a contour....
Nothing in the Bylaw shakes the conclusion that frontage, as defined, cannot be supplied by a line which is to some degree less than unbending. To read the Bylaw definition to apply only to entirely straight lines would leave many lots, with even the most imperceptible of gentle curves in the lines where the lots meet the street, with no guiding method for measuring and satisfying the frontage requirement of the law. That cannot be the reading intended legislatively. The defendants insistence on counting as frontage nothing less than a straight line would, if accepted by the court, lead to a strained, if not absurd, result in many instances. A lot which had only a tiny straight stretch to its run along the street, and a gentle curve of great length along the rest, would fail to comply with the minimum frontage requirement. The Bylaw clearly states that frontage must start and end at the intersections of the side lot lines with the front line of a property. The Bylaw assumes, and apparently requires, that all lots have a front lot line and side lot lines. The definition emphasizes the importance of the two end-points that establish the limits of the line which supplies frontage, something which takes place whether the frontage is in whole or in part curved, on the one hand, or entirely straight, on the other.
When interpreting statutes, each word is to be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute, so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision. Murphy v. Planning Bd. of Hopkinton, 70 Mass. App. Ct. 385 , 394 (2007) quoting Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617 , 618 (1967). Giving linear its plain meaning within the context of the entire statute requires that the frontage be measured in a way that includes both of the intersections of the front and side lot lines.
The Bylaw defines a corner lot as any lot abutting on two (2) or more streets that are intersecting. Bylaw § 2.1.1.28(e). Lot 2 abuts on two streets, Oak Avenue and Turkey Hill Road. They intersect at, or along, the southeast corner of Lot 2. With Oak Avenue supplying the front lot line, Turkey Hill Road supplies Lot 2's side lot line, and the intersection of those two streets establishes a boundary point limiting the extent of 27 Oak Avenue frontage. That point lies on the eastern end of the line of frontage, where it intersects the southern end of the side line along Turkey Hill Road. The Boards proffered interpretation would exclude this point, and would run counter to the Bylaw definition of corner lot as including the intersection of the Oak Avenue frontage line with the Turkey Hill side line. This approach also would exclude the entire thirty-one feet of curved lot line that borders, and forms the connection along and between the two (intersecting) streets. The Boards construction appears to ignore the reality that these two streets do, in a plain and obvious way, intersect, both on the plan and on the ground.
The purpose of requiring linear measurements was not to exclude curved edges of a lot from qualifying as frontage, but to show how to measure to see if there exist dimensionally deficient lots. Lots must be measured using a consistent rubric. Measuring from one intersection of side lot line and front line to the other intersection of the same front line with the other side line, whether the frontage is curved or straight, provides an accurate way to calculate the front dimension. Linear measurement of this sort allows the Town to ensure that lots meet consistent dimensional requirements.
The Board asserts that the measured frontage of a lot can not include any distance measured which lies within the street. This is correct, given the words of § 2.1.1.28. Its subpart (d) says: A building lot shall not include any part of the street. As a result, one cannot measure frontage along Oak Avenue all the way to the meeting point of the extensions of the straight lines of the side and front lines of Lot 2; to do so would position the point of their intersection in the middle of the traveled way. Said another way, the Bylaw does not countenance measurement of frontage which extends along the straight 98.00 foot long run of the frontage line, and then projects further in a straight line on the same course to the point of tangency with the rounded corner of Lot 2.
The Bylaw, in § 5.2.5, Corner Clearance, dealing with the need to maintain sight lines where two streets come together, mandates that the area, within the streets and on the lot, formed by these extensions, for a distance of fifty feet in both directions, be kept open. This section requires that measurements for the clearing should be taken from a point of intersection, or in the case of a rounded corner, the point of intersection of their tangents. . . This section projects the side and front lines to an intersection within the street(s). This point, where these two straight lines come together, cannot, as already said, be the measuring point for the eastern terminus of the frontage line along the Oak Avenue side of Lot 2, for it would encompass, as frontage, a line that in part ran into the traveled way.
Instead, the Bylaw calls for the intersection of side and front lot lines to be located on the curvature of the corner of Lot 2, along the line where the plaintiffs privately owned land meets the layout of the streets used by the public for travel. In this way, the counting does not pick up any phantom length which lies in the street, something the Bylaws definition forbids. What the Bylaw calls for, taking into account all of its relevant provisions and its purpose, in the case of a lot, like Lot 2, which lies where two streets come together along a small curve, is that the point which ends the frontage be located midway along that curve. The point which forms the eastern end of Lot 2's frontage lies on the curved line halfway along its 31.42 foot length. The half of the curve heading towards Oak Avenue is part of the frontage of the lot, and the other half, which heads up Turkey Hill Road, is the beginning segment of the sideline of Lot 2. This is the proper reading of the Bylaws frontage requirement. This reading honors the Bylaws insistence that frontage be measured along a single street right-of-way; the frontage line ends and the side streets line begins at this single point, so no more than one street provides the frontage. This reading leaves Lot 2 with a frontage of 113.71 feet, well more than the 100 feet required.
At argument, the court considered with counsel the possibility of another approach, namely drawing a straight line to connect, across Lot 2, the two termini of the straight lines alongside Oak Avenue and Turkey Hill Road, and then dividing that connecting line at its midpoint, assigning half of the connecting lines length to the frontage and half to the side line along Turkey Hill Avenue. This alternative is not consistent with the definitions and purpose of the Bylaw, because it measures along an artificially created line that runs within the interior of the Lot, and so the court declines to read the Bylaw in this fashion. But even this method would appear plainly to supply more than enough frontage to make up the two feet by which the 98 foot straight line along Oak Avenue falls short of 100 feet.
On this summary judgment record, as a matter of law, the court rules that 27 Oak Avenues total frontage measures 113.71 feet, and satisfies the Bylaws dimensional requirement for frontage. The defendants should not have determined that Lot 2 lacks sufficient frontage.
Measuring the Width of Lots Bordered by Multiple Rights-of-Way
That is not the end of the courts inquiry, however. The defendants assigned a separate reason for the denial of the requested building permit for Lot 1B: that Lot 2, improved with the residential structure, lacks the lot width required by the Bylaw.
The Board upheld the inspectors denial of the Cronins building permit application on the alternative grounds that 27 Oak Avenue did not comply with the minimum width requirements as stated in Bylaw §§ 2.1.1.28 and 5.1.2.1. These two sections require a minimum lot width of 175 feet measured between the side lot lines, and passing through the nearest point of the primary building. Id. [N]o building shall be constructed on a lot having ... less width that the Required Width Through Building, specified in the following table [175 feet]. Bylaw § 5.2.1.1. Lot width is the minimum distance between the side lot lines of the lot measured on any line parallel to a line joining the intersection of the side lot line with the right-of-way at any point between said intersection and the nearest point of the principal building and the right-of-way. Bylaw § 2.1.1.28(b).
This definition applies without much parsing or thought where there is a four-sided lot that has frontage on a single right-of-way, and only two points where the two side lot lines meet the only right-of-way. The Bylaw must have meaning, beyond this obvious example, in cases like that now before the court; the Bylaw must be interpreted as well in cases in which the building lot bounds on two rights-of-way, as where there is a corner lot, or even when the lot is bordered by two parallel streets.
The lot now in question, 27 Oak Avenue, is an irregularly shaped corner lot bordered by two rights-of-ways, and has multiple lot lines, several of which do not run alongside either of the streets, and which might thus qualify as side lot lines. Lot 2, we know, has its frontage along Oak Avenue. It cannot have more than one frontage, and plaintiffs do not contend, for purposes of understanding the lot width requirements, that it does. Lot 2 also has two lines which intersect with the frontage line, as determined by the court: the line running along Turkey Hill Road to the midpoint of the curve where Turkey Hill Road and Oak Avenue meet is the first. The second line is that which extends down to Oak Avenue and is the eastern sideline of the five-foot strip through which the sewer connection lines run. These two lines, at a minimum, are side lines of Lot 2.
Plaintiff come up short, however, when they try to show how the distances between these sidelines should be measured to prove Lot 2's compliance with the Bylaws lot width regulation. Plaintiffs offer alternative interpretations of the Bylaws lot width requirement, and their claimed interpretations are displayed on a marked plan in the record, prepared by surveyor Stanley R. Dillis, a copy of which accompanies this Decision as an exhibit. This plan illustrates plaintiffs contention that Lot 2 meets the minimum lot width through building requirement because it is possible to draw straight lines, shown on the plan, through or touching the Lot 2 dwelling which exceed 175 feet in length.
Plaintiffs argument in this respect fails as a matter of law, given the obvious layout of Lot 2, and the words of the relevant Bylaw provisions. The plan they offer proves the wrong point. First and foremost in the lot width definition is that it is the minimum distance between the side lot lines of the lot(emphasis supplied). It is on this threshold requirement that the plaintiffs argument founders. The interpretation proffered by the plaintiffs, depicted in the Dillis exhibit, may well show a straight line running from one side line to another side line, a straight line which is long enough to meet the 175 minimum applicable to Lot 2 under the Bylaw. The difficulty is that the distance of this line, just a fraction of an inch above the 175 foot required, is not the minimum distance connecting the side lot lines of Lot 2.
Lot 2, as already established, has as one of its side lines the line running along the side of Turkey Hill Road, from Lot 1B (where it meets Turkey Hill Road) southerly to the midpoint of the curve at the place where Turkey Hill Road and Oak Avenue come together. This boundary of Lot 2 is assuredly one of its side lines. There may be others, but this sideline has an intersection with a right-of-way, Oak Avenue, at the midpoint of the curve. That intersection is ignored in the plaintiffs rendition of how Lot 2 might comply with the lot width regulation. The plaintiffs proffered lot width exhibit does not place the parallel lines at the correct alignment. The lines must be drawn to show not the maximum distance between the side lot lines, as the exhibit strains to do, but rather the minimum distance. The minimum distance between the side lot lines lies in the front yard of Lot 2, relative to the building on it, which faces and has its address on Oak Avenue. The minimum distance between the side lot lines of Lot 2 is the length along a line which is the full extension of the line on the exhibit, parallel to Oak Avenue, marked on the exhibit as 40' zoning setback. The length of this line is not given on the exhibit, but there can be no dispute that it is materially shorter than the line proposed by plaintiffs, which only barely measures 175 feet. There can be no doubt that the minimum distance measured between the side lot lines on a line parallel to Oak Avenue, fails to meet the 175 foot minimum the Bylaw mandates.
The correct lot width measurement is not the one which follows from the effort by plaintiffs to find any one possible line with a length of 175 feet which will somehow fit between two points along any two lines which might constitute side lines. This attempt by plaintiffs flies in the face of the Bylaw, which imposes a minimum lot width. Plaintiffs struggle to maximize the line they use to demonstrate compliance, but in doing so they ignore the fundamental purpose of this dimensional requirement, which is that the lot width not be any less than the minimum distance established in the Bylaw.
A line certainly exists which runs between the midpoint on the curve (where the Turkey Hill Road sideline intersects with Oak Avenue) and the westernmost point on the frontage line along Oak Avenue, at the five foot wide extension of Lot 1B (where the western sideline of Lot 2 intersects with Oak Avenue). Any and all lines drawn parallel to this one, and lying between it and the nearest point of the building on Lot 2, surely cannot measure anywhere close to the necessary 175 feet. (The minimum lot width measurement must be taken along a linethe shortest line--that lies parallel to a line joining the intersection of the side lot lines with the right-of-way at any point between said intersection and the nearest point of the principal building and the right-of-way line.) This is why Lot 2 as now configured fails to meet the minimum lot width requirementbecause the width of the lot in what is, by any measure, the front yard of Lot 2 comes up very much short of 175 feet.
From this conclusion, it follows that the inspector and the Board correctly determined that the lot width of Lot 2 violates the Bylaw. The Town appropriately concedes that, prior to the reconfiguration of the property involved, to benefit and provide the sewer connection leg to the New Lot, 27 Oak Avenues width, though less than required under the Bylaw, had been protected as a matter of prior nonconformity by G. L. c. 40A, § 6. See Rourke v. Rothman, 448 Mass. 190 , 197 (2007) quoting Adamowicz v. Ipswich, 395 Mass. 757 , 763 (1985). The defendants correctly assert, however, that the conveyance from the developed Lot 2 to the vacant Lot 1B of the five-foot sewer extension reduced the width of Lot 2, and increased 27 Oak Avenues noncompliance with the Towns dimensional zoning regulations. And this leads to a situation where, in a manner prohibited by the Bylaw and by general principles of zoning, a previously nonconforming lot improved with a building has been changed in a way that would makes it not compliant with the Bylaw, and which, as a matter of objective measurement of the width of the lot, increases the lots non-conformance. See Bylaw § 5.1.6.1: No lot on which a building is located... shall be reduced or changed in size or shape so that the building or lot fails to comply with lot... width... provisions of this Bylaw, or, if such building or lot already fails to comply with said provisions, such reduction or change would bring about a greater degree of non-compliance with said provisions.
This means, further, that the defendants were within their rights to decide that Lot 1B, though not itself the locus of the lot width deficiency, was not eligible for a building permit for new construction, because Lot 1B was made up of land formerly part of Lot 2, and the land taken from Lot 2 caused it to became less compliant with the lot width requirement of the Bylaw. See Alley v. Building Inspector of Danvers, 354 Mass. 6 , 7 (1968) (creating a conforming lot by depriving another lot of a characteristic required in a Bylaw was held improper).
Plaintiffs argued this appeal on the basis that Lot 2 as now constituted complies with the relevant dimensional requirements of the Bylaw. On the record submitted, without any dispute of material fact and as matter of law, the court rules that that is not the case. Plaintiffs did not present to the Board, nor to this court, any argument that, notwithstanding the reconfiguration of the lots involved, Lot 2, while deficient under current zoning dimensional regulation, may still be able to receive some protection based on its prior nonconformity, including by way of a special permit or finding under the provisions of Article 7 of the Bylaw or under Section 6 of G.L. c. 40A. That argument could not proceed on this case as pleaded, and certainly not on the record now before the court, which does not show plaintiffs made any request for a special permit of this sort. It is not at all clear that any such special permit could even be available under any circumstances, given the language of Article 7 and Section 6, but this Decision by the court neither addresses or forecloses any such possibility.
After argument, review of the record assembled and submitted pursuant to Mass. R. Civ. P. 56 and Land Court Rule 4, and consideration of the written submissions of the parties, the court determines that the plaintiffs have failed to show that 27 Oak Avenue complies with the Bylaws dimensional requirements as to lot width. The court rules that the Board correctly denied the plaintiffs administrative appeal from the denial of their building permit application for Lot 1B. Defendants motion for summary judgment is GRANTED and plaintiffs motion for summary judgment is DENIED. Judgment will enter upholding the Decision of the Board.
Judgment accordingly.
By the court. Piper, J.
Dated: October 7, 2009.
DANIEL W. CRONIN and JACQUELYN M. CRONIN vs. DONALD BOWEN, RAYMOND BEAL, JAMES BESARKARSKI, HANS WENTHRUP DAVID BLATT, SHEILA LUMI, and PAUL DOHERTY, As They are Members of the Zoning Board of Appeals for the Town of Lunenburg; and EDWARD M. CATALDO, As He is Alternate Building Inspector