PETER PROULX v. JAMES R. WESTRA, ANTHONY M. FEEHERRY, JONATHAN A. STRINGER, TIMOTHY MANSFIELD, AS MEMBERS AND ASSOCIATE MEMBERS OF THE WENHAM ZONING BOARD OF APPEALS

Introduction and Procedural History

Reduced to its essence, this matter primarily concerns § X.A. of the Town of Wenham Zoning Bylaw (bylaw) which specifies the front yard setback requirement in the Residential District. More specifically, the question before the court asks whether the language in § X.A. prohibiting construction of a building “within twenty (20) feet of the street side line” requires that the lot in question have some frontage on a street.

By virtue of this action initiated pursuant to G.L. c. 40A, § 17, Peter Proulx (plaintiff) challenges a decision of the Wenham Zoning Board of Appeals (Board) filed with the Town Clerk on August 11, 2008. In its decision, the Board upheld a November 2007 determination by the local Building Inspector (Inspector) in which he denied plaintiff’s request for a building permit for a single family residence at the property “sometimes known as 116 Horse Hill Lane” [Note 1] in Wenham, Massachusetts (Locus /Premises). Concluding that the Locus lacked the requisite frontage, the Board determined that it did not constitute a buildable lot for purposes of § X.E.4 of the bylaw, [Note 2] the so-called grandfather provision. Plaintiff commenced the instant lawsuit on August 29, 2008. His motion for summary judgment was heard and taken under advisement on June 3, 2009.

It is the plaintiff’s primary contention that § X.E.4 was interpreted in a legally untenable manner by the Board so as to require frontage on a street. He argues that § X.E.4 should be construed so as to exempt the Locus from any such street frontage requirement, thereby allowing plaintiff to secure a building permit. This Court disagrees.

Background

The material facts of this case are not in dispute for purposes of summary judgment. Thomas O’Brien (O’Brien), Trustee of Horse Hill Realty Trust, is the current owner of the Premises consisting of 5.158 acres. The deed to O’Brien is recorded with the Southern Essex District Registry of Deeds at Book 6152, Page 405. [Note 3] Pursuant to a 1903 grant of easement, “the land owners abutting on the same, their heirs and assigns [enjoy] a right of way over a strip of land [known locally as Horse Hill Lane] eighteen feet in width and the right to construct a road.” [Note 4] Horse Hill Lane is not currently a public way, is not maintained by the Town of Wenham, and is not shown on a Definitive Subdivision Plan of an Approved Subdivision. [Note 5] “For purposes of summary judgment, the parties have stipulated that Horse Hill Lane is not a street, although the issue is reserved for trial if necessary.” [Note 6] The Locus, described in a deed recorded prior to April 7, 1955, has not been held in common ownership with any adjoining lot since the adoption of the bylaw in 1945. [Note 7]

The Locus is the subject of a purchase and sale agreement between O’Brien and the plaintiff. [Note 8] Seeking to construct a single family dwelling thereon, the plaintiff sought a building permit from the Inspector. As he determined that the Locus failed to comply with § X.E.4, the Inspector refused to issue the requested permit. “[T]he parties agreed to submit the Inspector’s interpretation of the By-law to the Zoning Board of Appeals.…” [Note 9] The proposed single family residence appears on plans submitted to the Inspector with the plaintiff’s application. That structure is depicted as being in conformity with the side yard and rear yard set back requirements of the current bylaw. [Note 10] The Locus does not meet the bylaw’s current frontage requirement of 170 feet. At least for purposes of the instant Motion, it can be said that the Locus possesses no street frontage at all.

After conducting public hearings on February 6, 2008 and May 14, 2008, the Board voted to uphold the Inspector’s denial of a building permit. In so doing, it offered its interpretation of § X.E.4. [Note 11]

Section X.E.4 provides in relevant part, as follows:

The lot areas and dimensions of land laid out at any time prior to April 7, 1955, shall conform to the requirements of the by-law in effect at such time, provided that lots shown on any plan duly recorded, or described in a deed duly recorded, that do not meet the requirements of section X, subsection E, may be used as a building lot provided that all front yard, side yard and rear yard setback requirements are met, and further provided that at the time of the adoption of this amendment such lot was held in ownership separate from that of adjoining land. (emphasis added)

The Board reasoned that “since at least 1947 the Wenham Zoning By-Laws have incorporated the concept that single family homes must be built on a street, i.e. must have some frontage on a roadway dedicated to public use.” [Note 12] The Board concluded that under the current iteration of the bylaw, a lot that does not abut a street cannot meet the front yard setback requirement and cannot, in turn, constitute a buildable lot. [Note 13] It therefore affirmed the Inspector’s interpretation denying plaintiff a building permit.

Plaintiff filed his complaint on August 29, 2008. He sought to annul the Board’s decision arguing that it was predicated upon an interpretation of the bylaw that was legally untenable and that the Board acted in excess of its authority. More specifically, he argued that § X.E.4 should not be interpreted so as to require any frontage on a street.

Plaintiff now argues that the Board’s interpretation is at odds with both the plain language and the intent of the bylaw. [Note 14] He notes at the outset that § X.E.4 nowhere expressly refers to frontage. He argues moreover, that § X.E.4 was intended to insulate grandfathered properties such as Locus, from the bylaw’s frontage requirements. [Note 15] To this end, plaintiff directs the court to 1947 and 1955 bylaw provisions which added frontage requirements to “lots laid out after” the adoption of the bylaw, or after the 1955 amendment, but which include no reference to frontage in their respective grandfather provisions. [Note 16] On this basis, he asserts that the 1947 and 1955 bylaws sought to grandfather pre-existing lots from the express frontage requirement [Note 17] provided, however, that “they satisfied the front yard setback requirement….” [Note 18] He contends that his plan meets the front yard setback requirement of the present bylaw inasmuch as his proposed dwelling would not be within twenty feet of Horse Hill Lane if it were considered a street or layout; nor, he argues, is it within twenty feet of any other street. [Note 19]

For its part, the defendant Board, in its Opposition Memorandum, focuses somewhat more narrowly upon Section X.A. of the Bylaw, as being “[t]he sole zoning provision at issue”…. [Note 20]

That Section provides in relevant part as follows:

Section X.A. Front Yard. No building in the Residential…District shall be built or placed within twenty (20) feet of the street side line, except that no building need be set back more than the average front yard setback of the buildings on the lots on either side…Buildings on corner lots may face either street. No building on a corner lot shall be built within twenty (20) feet of either street side line.

The defendant argues that “[t]he sole question of zoning interpretation is:

Does the front yard setback requirement cited above require that a lot’s front yard actually touch a street?” [Note 21]

Summary Judgment Standard

Summary Judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission…taken together with affidavits…show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. c. Aerovox Inc., 424 Mass. 226 , 232 (1997). A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” form the facts in the non-moving party’s favor. Willits v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991).

Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts or only if a question of law is involved. In the instant matter, the dispute between the parties centers upon a legal question, i.e. whether § X.E.4 requires that the Locus possess frontage on a street through its front yard setback requirement. [Note 22] Under the circumstances, this matter is therefore ripe for Summary Judgment.

Discussion

In his Memorandum, plaintiff makes the following observation:

The gravamen of the dispute is the proper interpretation of the grandfathering provision set forth in Section X.E.4 of the…By-Law…. [T]he parties agree that all of the criteria to qualify Proulx’s property as a buildable lot under Section X.E.4….are satisfied except for the front yard setback requirement….The Board’s Decision improperly interprets the reference to front yard setback set forth in section X.E.4…as requiring frontage on a “street” thus depriving Proulx of a building permit…. [Note 23] (emphasis added)

If the single family residence to be constructed…complies with the front yard setback requirement, Proulx is entitled to a building permit. The only issue in dispute is whether the front yard setback requirement requires the Property to have some frontage on a street. [Note 24]

Section X.A measures the twenty foot setback from the street side line, [Note 25] and as such, the Board concluded that the front yard setback requirement implied at least some frontage on a street. The Board based its finding on grounds that a) the grandfather clause requires lots to comply with front yard set backs, and in order to have a front yard, the lot must abut a street; b) the general purposes of the bylaw include the need to promote safety, and construing the bylaw so as to require frontage on a street furthers that goal; and c) since 1947 the bylaw has incorporated the idea that single family homes must be built on a street. [Note 26]

The parties are in agreement that, but for the front yard setback, the Locus possesses all the attributes of a grandfathered parcel under § X.E.4, including the requisite side yard and rear yard setbacks. Consequently, the question before the court is limited to an examination of the front yard setback requirement as specified in § X.A (and as referenced in § X.E.4). As we have seen, the parties differ among themselves regarding the need for the Locus to possess some frontage on a street.

As previously noted, plaintiff argues that the front yard setback does not imply the existence of any frontage on a street. He asserts that one could measure front yard setback from any street, so long as it were greater than twenty feet from the front of the house. Given this scenario, one would be free presumably to build on a lot, landlocked or otherwise, up to the front lot line, as long as the proposed structure were placed more than twenty feet from a street, any street. It is noteworthy that in its definition of Front Yard, § X.A alludes to the placement of a structure within twenty feet of the street, not twenty feet of any street, or twenty feet of a street. This fact lends support to the view that the bylaw contemplates a setback from a specific street. It is the court’s view that the language of that section is clear, insofar as the street contemplated by § X.A. is that on which the lot possesses frontage. It follows that the front yard setback requirement would not be met if there were an intervening parcel between the subject property and the street.

Not insignificantly, the interpretation adopted by the Board is consonant with the concept of “zoning” embodied in G.L. c. 40A § 1A as it concerns the protection of the “the health, safety and general welfare” of a municipality’s inhabitants. That interpretation is far more likely than that urged upon this court by the plaintiff to further public safety goals, as for example, by allowing emergency access to the Locus.

Conclusion

In view of the foregoing, this court concludes that the Board did not act in excess of its authority and that some frontage on a street [Note 27] was required by the applicant in order to secure a building permit under the circumstances pertaining herein. Consequently, the decision of the Board will be affirmed.

Accordingly, it is hereby

ORDERED that plaintiff’s Motion for Summary Judgment be, and hereby is, DENIED; plaintiff’s complaint shall be DISMISSED. It is further

ORDERED that the Board’s decision is hereby AFFIRMED.

Judgment to enter accordingly.

SO ORDERED.

By the Court (Grossman, J.)