Home WILLIAM J. RUPPRECHT vs. CITY OF PITTSFIELD, GERALD GARNER, Building Inspector, RICHARD DOHONEY, Pittsfield City Solicitor, PITTSFIELD ZONING BOARD OF APPEALS, as they consist of ALBERT A. INGEGNI, III, SYLVIA STEIN, THOMAS GOGGINS, and BEN J. KAPLAN

MISC 09-398766

March 9, 2010

Sands, J.

DECISION

Plaintiff filed his unverified complaint on April 16, 2009, appealing, pursuant to the provisions of G. L. c. 240, § 14A, a determination of Defendant City of Pittsfield Building Inspector (the “Building Inspector”) that property owned by Plaintiff and located on Oliver Avenue in Pittsfield, Massachusetts (“Locus”) is not a buildable lot. The Building Inspector filed his Answer on May 11, 2009, together with a Motion to Dismiss pursuant to Mass. R. Civ. P. 12(b)(6), alleging that Plaintiff’s complaint failed to confer subject matter jurisdiction upon this court and failed to state a claim upon which relief could be granted. On May 12, 2009, Plaintiff filed a Motion to add Richard Dohoney (Pittsfield City Solicitor) (“City Solicitor”) as a Defendant. A case management conference was held on May 14, 2009, at which time Plaintiff agreed to file a formal request with the Building Inspector as to the buildability of Locus. Plaintiff filed an Amended Complaint on September 4, 2009, claiming that the Building Inspector, the City Solicitor, and the members of the Pittsfield Zoning Board of Appeals (the “ZBA”) (together, “Defendants”) made a taking of Locus under the Fifth Amendment of the United States Constitution. [Note 1]

Plaintiff filed his Motion for Judgment on the Pleadings on September 9, 2009. A telephone status conference was held on October 13, 2009, at which time this court ordered Plaintiff to file a Second Amended Complaint to clarify his claims. Plaintiff filed his Second Amended Complaint on October 26, 2009, appealing, pursuant G. L. c. 40A, § 17, a decision of the ZBA to uphold the decision of the Building Inspector relative to the buildability of Locus. [Note 2] On November 2, 2009, Defendants filed their Opposition to Plaintiff’s Motion for Judgment on the Pleadings and Cross-Motion for Summary Judgment, together with supporting memorandum and Statement of Undisputed Facts. Plaintiff filed his Opposition to Defendants’ Cross-Motion on November 23, 2009. A hearing was held on all motions on February 5, 2010, at which time both motions were taken under advisement.

The effect of a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12(c) is “to challenge the legal sufficiency of the complaint.” Board of Selectmen of Hanson v. Lindsay, 444 Mass. 502 , 509 (2005) (citations omitted). It is appropriate “only when the text of the pleadings produces no dispute over material facts.” Tanner v. Bd. of Appeals of Belmont, 27 Mass. App. Ct. 1181 , 1182 (1989). When a defendant’s pleading places the material allegations in question, a motion for judgment on the pleadings cannot lie. Id.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

I find that the following material facts are not in dispute:

1. Locus is located in an R-12 zoning district and is an undeveloped parcel of land containing 6,000 square feet with sixty feet of frontage along Oliver Avenue. On July 9, 1970, the City of Pittsfield (the “City”) amended its zoning ordinance (the “Ordinance”). As a result of this amendment, the minimum lot area requirement in an R-12 zoning district was increased from 6,000 square feet to 12,000 square feet.

2. By deed dated May 9, 1972, and recorded with the Berkshire Middle District Registry of Deeds (the “Registry”) at Book 923, Page 714, Donald O. Ruffer transferred property located at 92 Cummings Avenue, Pittsfield (the “Cummings Avenue Property”), to William F. Rupprecht and Mary A. Rupprecht (parents of Plaintiff) as tenants by the entirety. The Cummings Avenue Property is comprised of 12,150 square feet and contains a single-family house.

3. By deed dated July 10, 1975, and recorded with the Registry at Book 965, Page 48, Herman C. Brown and Lucy T. Brown transferred Locus to William J. Rupprecht (Plaintiff). The rear yards of Locus and the Cummings Avenue Property abut. Locus and the Cummings Avenue Property are separately assessed by the City.

4. By deed dated December 28, 1994, and recorded with the Registry at Book 1456, Page 757, Mary A. Rupprecht (“Mary”) conveyed herself a life estate in the Cummings Avenue Property with remainder to Plaintiff. [Note 3]

5. By deed dated June 5, 1998, and recorded with the Registry at Book 1607, Page 999, Plaintiff transferred Locus to Plaintiff and Mary, as joint tenants.

6. By letter dated May 16, 2009, Plaintiff requested an opinion from the Building Inspector as to the buildability of Locus.

7. By letter dated June 8, 2009, the Building Inspector determined that Locus was not a buildable lot.

8. Plaintiff filed an appeal of the decision of the Building Inspector with the ZBA. The ZBA issued a decision on July 29, 2009, upholding the decision of the Building Inspector.

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The central issue in this case is whether Locus is grandfathered as a preexisting nonconforming lot, or whether it has been merged with the Cummings Avenue Property and lost its grandfather status. [Note 4] Plaintiff argues that Locus was permanently grandfathered because it was a separate lot when the Ordinance was amended in 1970. Defendants argue that Locus was merged with the Cummings Avenue Property in 1998 when it was transferred to Plaintiff and Mary as joint tenants, and, as a result, lost its grandfather status.

Case law is clear that two adjoining lots in common ownership are merged for zoning purposes at the time that they fall under common ownership, even if they were separately owned at the time of the zoning change. Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 , 238, 244 (2001). The issue here, however, is whether the two lots are under common ownership for the purposes of G. L. c. 40A, § 6. [Note 5]

Title to Locus is currently held by Plaintiff and Mary as joint tenants; the abutting Cummings Avenue Property is held by Mary as life tenant with Plaintiff holding a remainder interest. As a result, the two lots are technically currently held by separate legal entities– the Cummings Avenue Property by Mary (until the end of her life estate) and Locus by Plaintiff and Mary as joint tenants. Defendants argue that the technical legal ownership is not controlling and cite Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 (1989), aff’d, 406 Mass. 1008 (1990) (rescript opinion). In Serena, the Appeals Court stated, “[t]he crux, thus, was not the form of ownership, but control: did the landowner have it ‘within his power’, i.e., within his legal control, to use the adjoining land so as to avoid or reduce the nonconformity?” Id. at 691. The Appeals Court found that the two lots, one owned by the Serenas as tenants by the entirety, and one owned by the Serenas as Trustees of a realty trust of which they were the sole beneficiaries, were merged because the Serenas controlled both lots. Id. [Note 6]

In the case at bar, however, the facts do not indicate that both Locus and the Cummings Avenue Property are under common control. So long as she is alive, Mary controls the Cummings Avenue Property, as a life tenant has

a right to the exclusive possession of the land. . . . And if a remainder interest has been created, during the existence of the life estate the remainderman is not entitled to possession until the death of the life tenant. . . . A life estate is alienable by the life tenant, and he can accordingly convey his estate to a third person, or mortgage it, or lease it for a term of years.

Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77 , 88 n.20 (2008) (internal quotations and citations omitted). [Note 7] Contrastingly, Mary and Plaintiff have joint control over Locus as joint tenants. As such, Locus and the Cummings Avenue Property are not only under separate legal ownership but also under separate control. [Note 8], [Note 9] In light of the above, I find that Locus and the Cummings Avenue Property are not merged in context of G. L. c. 40A, § 6.

As a result of the foregoing, I ALLOW IN PART Plaintiff’s Motion for Judgment on the Pleadings and DENY Defendants’ Motion for Summary Judgment. [Note 10]

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: March 9, 2010

FOOTNOTES

[Note 1] Plaintiff litigated this matter pro se.

[Note 2] Plaintiff’s Second Amended Complaint also included a claim that the City Solicitor violated 18 U.S.C. § 242 (Deprivation of Rights Under Color of Law) as well as alleging that the Building Inspector and the ZBA acted with malice against Plaintiff.

[Note 3] This deed indicates that Mary became the sole owner of the Cummings Avenue Property by right of survivorship upon the death of her husband, William F. Rupprecht (Probate Court No. 84621).

[Note 4] Neither party disputes the fact that Locus was a pre-existing nonconforming lot as of 1970.

[Note 5] Municipalities may adopt more liberal grandfather provisions than those provided for in G. L. c. 40A, § 6, but must do so expressly. Marinelli v. Bd. of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005). Section 8.2 of the Ordinance states that “[n]on-conforming lots of record . . . are exempt from the provisions of this ordinance to the extent as provided in Section 6, Chapter 40A of the General Laws.” G. L. c. 40A, § 6, states:

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. Any increase in area, frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date of for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or endorsed, and such lot was held in common ownership with an adjoining land . . . .

[Note 6] Both parties cite to Carciofi v. Bd. of Appeal of Billerica, 22 Mass. App. Ct. 926 (1986), in which plaintiffs owned one lot as tenants by the entirety, and the other abutting lot was owned one-half by the husband individually, and one-half by plaintiffs as tenants by the entirety. Id. at 926. The Appeals Court held that there was no merger. Id. at 927.

It should be noted that Carciofi was a rescript opinion and Serena, which was issued three years later, appears to conflict with Carciofi. In fact, the Appeals Court (in Preston) has since referred to Carciofi as “a two-page rescript which has never been cited and has been undermined by subsequent case law.” Preston, 51 Mass. App. Ct. at 239-40. As a practical matter, the case at bar is distinguishable from both Carciofi and Serena.

[Note 7] “It is basic property law that a life estate is created by dividing an estate in property by its present and future interests. These divided interests are held in separate ownership.” Dowd v. Stebbins, 17 LCR 431 , 436 (2009) (Misc. Case No. 356120) (Trombly, J.) (emphasis original).

That Mary’s life estate in the Cummings Avenue Property bars merger with Locus is consistent with the Supreme Judicial Court’s dicta relative to the impact of a life estate on merger in context of easements. See Parkinson v. Bd. of Assessors of Medfield, 398 Mass. 112 , 114 n.3 (1986) (“Even assuming that common law principles of merger apply to statutory conservation restrictions . . . , an easement will not be extinguished at common law where an intervening life estate prevents complete unity of ownership in the dominant and servient estates.”).

[Note 8] Defendants also argue that the second sentence of the fourth paragraph of G. L. c. 40A, § 6 applies to require a merger, but that provision only confers an addition five years of protection to lots that are under common ownership. See supra note 5. See also Preston, 51 Mass. App. Ct. at 244 (“Even someone who owned both lots in common prior to the zoning change, would have been limited to five years to exercise her grandfathered rights under the second sentence of the fourth paragraph of G. L. c. 40A, § 6.”).

[Note 9] It should be noted that Plaintiff’s legal arguments based on intent and his interpretation of G. L. c. 40A, § 6, as giving permanent protection to Locus, both fail. This court’s analysis of G. L. c. 40A, § 6, however, supports Plaintiff’s ultimate conclusion that Locus is not merged with the Cummings Avenue Property.

[Note 10] I do not find in favor of Plaintiff with respect to his allegations against the City Solicitor under 18 U.S.C. § 242 (Deprivation of Rights Under Color of Law), or with respect to his allegations of malice on the part of the Building Inspector and the ZBA. This court lacks jurisdiction with respect to the former claim, which was filed under a federal criminal civil rights statute. With respect to Plaintiff’s claims of malice, the record includes no supporting facts that would lead to a conclusion in Plaintiff’s favor. Moreover, Plaintiff failed to make this argument in his Motion for Judgment on the Pleadings.