CHARLES KIMMETT and SUZANNE KIMMETT vs. TOWN OF TOLLAND and M. STEVENS BARTELS, DAVID BARNEY, and BILL WALKER, as they are members of the ZONING BOARD OF APPEALS OF THE TOWN OF TOLLAND

Plaintiffs filed their unverified Complaint on November 20, 2008, appealing, pursuant to G. L. c. 40A, § 17, the denial of a variance by Defendant Zoning Board of Appeals of the Town of Tolland (the “ZBA”), and seeking to determine, pursuant to G. L. c. 240, § 14A, the interpretation of a provision of the Tolland Zoning By-law (the “By-law”). Defendant Town of Tolland (the “Town”) and the ZBA (together, “Defendants”) filed their Answer on January 20, 2009. On May 11, 2009, Plaintiffs filed their Motion for Summary Judgment, together with supporting memorandum, Joint Statement of Material Facts, and Appendix. Plaintiffs filed Supplement to Joint Statement of Material Facts on June 3, 2009. On June 9, 2009, Defendants filed their Cross-Motion for Summary Judgment, together with supporting memorandum. Plaintiffs filed their Reply on June 22, 2009. A hearing was held on both motions on July 29, 2009, at which time both motions were taken under advisement. At this court’s request, the parties filed a Joint Statement of Facts Regarding 1970 By-law Adoption (the “Joint Statement”) on August 7, 2009.

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).

This court finds that the following facts are not in dispute:

1. Chamonix Chalet Properties, Inc. (“Chamonix”) owned a parcel of land located in Tolland, Massachusetts, as shown on a plan titled “Plan of Land in Tolland, Massachusetts Belonging to Chamonix Chalet Properties, Inc.” dated April 1, 1968, and prepared by Almer Huntley, Jr. & Associates, Inc. (the “Plan”). The Plan was recorded with the Hampden County Registry of Deeds (the “Registry”) on May 6, 1968, at Book of Plans 113, Pages 78-79. Chamonix sold Lots F-3 to James E. Cole, F-4 to Clarence M. Ellison and Gladys L. Ellison, F-5 to Anthony J. DeMaria and Katherine M. DeMaria, and F-6 to Shirley T. Wells (as such lots are shown on the Plan), by deeds dated June 7, 1968, August 1, 1969, May 29, 1968, and June 19, 1969, respectively.

2. The By-law was adopted by the Town on December 7, 1970. At that time the entire Town was in an Agricultural-Residential District. There were no dimensional requirements established in the By-law.

3. Verne W. Usher and Beverly A. Usher (the “Ushers”) purchased Lot F-3 by deed of James E. Cole dated March 6, 1973, and recorded with the Registry at Book 3780, Page 365.

4. The Ushers purchased Lot F-4 by deed of Clarence M. Ellison and Gladys L. Ellison dated September 30, 1974, and recorded with the Registry at Book 4048, Page 1.

5. The Ushers purchased Lot F-5 (“Locus”) by deed of Anthony J. DeMaria and Katherine M. DeMaria dated June 10, 1976, and recorded with the Registry at Book 4280, Page 283.

6. The devisees of Shirley T. Wells conveyed Lot F-6 to Harry Gill and Sallie M. Gill by deed dated June 28, 1999, and recorded with the Registry at Book 10852, Page 406.

7. The By-law was amended on June 29, 1978 (the “1978 Amendment”). Section VII A.1 of the 1978 Amendment (governing nonconforming uses) stated that “[t]he lawful use of any structure or land existing at the time of the enactment or subsequent amendment of this By-Law may be continued, although such use does not conform with the provisions of the By-Law.” Section VII A.6 of the 1978 Amendment stated:

On a lot of less than the required area which have been recorded by plan or deed or assessed as a separte [sic] parcel before the date of adoption of this By-Law (December 7, 1970), the lot area and width requirements need not apply, unless, this parcel prior to the time of adoption of this By-Law adjoined other land of the same owner available for use in connection with such parcel. Any lot on which more than one house existed at that time may be divided and sold to separate owners.

Under the 1978 Amendment, Lots F-3, F-4, F-6, and Locus are all located in the A-R-I Zoning District, which requires 200 feet of frontage and 87,120 square feet (two acres) of lot size.

8. Plaintiffs purchased Locus from the Ushers by deed dated March 29, 2004, and recorded with the Registry in Book 14276, Page 324. Locus is .450 acres in size (approximately 19,600 square feet) and has 151.64 feet of frontage on Stones Throw Drive.

9. The By-law was amended on November 15, 2005 (the “2005 Amendment”), to add, in Section IV (Definitions), the following definition of “non-conforming lots, uses, buildings or structures”: “Any lot, use, structure or building not meeting the requirements of this Bylaw, but in existence prior to the date of adoption of this Bylaw or amendments thereto.” Section VII A.1 of the 2005 Amendment (governing non-conforming uses and structures) states:

Preexisting Non-Conforming Uses: The lawful use of any structure or land existing at the time of the enactment or subsequent amendment of this Bylaw may be continued subject to Massachusetts General Law Chapter 40A, although such use does not conform to the provision of this Bylaw.

The 2005 Amendment revoked Section VII A.6 of the 1978 Amendment.

10. On October 2, 2008, Plaintiffs filed an application with the ZBA for variances from the square footage and frontage requirements of the By-law in order to qualify Locus as a buildable lot. On October 29, 2008, the ZBA voted to deny the variances.

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Plaintiffs argue that Locus is a buildable lot as it is grandfathered under the 1978 Amendment. [Note 1] Specifically, Plaintiffs suggest that the 1978 Amendment is more liberal than G. L. c. 40A, § 6 (“Section 6”) in that it provides more protection to Locus as a preexisting non-conforming lot. [Note 2]

Defendants assert that the 1978 Amendment is ambiguous in that it does not provide clear language of intent to override Section 6. Defendants reason that Section 6 applies and argue that Locus is non-conforming under the merger doctrine because Locus, Lot F-3, and Lot F-4 were held in common ownership by the Ushers as of June 10, 1976, and remained so at the time of the 1978 Amendment.

1978 Amendment.

Plaintiffs’ first argument that Locus is protected from the merger doctrine hinges upon whether the 1978 Amendment supercedes Section 6. [Note 3] Case law supports Plaintiffs in their argument that a liberal local by-law can supercede Section 6, provided that the by-law provides clear language of such intent. See Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987). Defendants claim that there is some ambiguity in the 1978 Amendment and that case law requires that the intent to liberalize the merger doctrine must be clear. As stated previously, the language of Section VII A.6 of the 1978 Amendment, which is at issue in the case at bar, states that

[o]n a lot of less than the required area which have been recorded by plan or deed or assessed as a separte [sic] parcel before the date of adoption of this By-Law (December 7, 1970), the lot area and width requirements need not apply, unless, this parcel prior to the time of adoption of this By-Law adjoined other land of the same owner available for use in connection with such parcel.

This language plainly demonstrates that the intent of the 1978 Amendment was to give greater zoning protection to preexisting, non-conforming lots than Section 6. [Note 4] As such, it follows that because Locus complied with the requirements of Section VII A.6 (i.e. Locus was in existence prior to December 7, 1970, at which time it was held in separate ownership from adjoining lots), Locus is grandfathered and protected from the general merger doctrine.

Defendants argue that, even if Section VII A.6 of the 1978 Amendment provided grandfather protection to Locus, there is an issue as to the duration of such protection. Even though Section VII A.6 is silent as to the issue of after-acquired property, Defendants argue that the 1978 Amendment only protects lots that were not in common ownership in 1970 and that remain in single ownership after that time. Defendants assert that “[t]he crucial inquiry for grandfathering purposes is the status of the lot immediately prior to the zoning change that rendered the lot nonconforming,” Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 , 240 (2001) (internal quotation omitted), and note that bylaws that are more liberal than Section 6 must be strictly construed. See Carabetta v. Bd. of Appeals of Truro, 73 Mass. App. Ct. 266 , 269 (2008). Defendants’ argument, however, makes little sense since the 1978 Amendment fails to qualify or limit in any way the merger protection given to pre-1970 lots. Under Defendants’ argument, preexisting non-conforming lots which were in single ownership prior to 1970 but which were combined the next year would have no protection from merger; the 1978 Amendment does not state this.

As a result of the foregoing, I find that Section VII A.6 of the 1978 Amendment exempts Locus from the application of the merger doctrine.

2005 Amendment.

Neither party argues that the 2005 Amendment results in Locus being a non-buildable lot, despite the facts that: (1) the 2005 Amendment does away with Section VII A.6 of the 1978 Amendment; and (2) Plaintiffs’ request for variances concerning Locus occurred in 2008. [Note 5] Plaintiffs argue that even though the merger protection of the 1978 Amendment was omitted from the 2005 Amendment, and as a result the merger doctrine may have been reinstated, the definition of the term “nonconforming lot” in the 2005 Amendment still included Locus (a lot not meeting the requirements of the 2005 Amendment but in existence prior to the adoption of the By-law) and protected it as a grandfathered lot. [Note 6]

However, the 2005 Amendment effectively revoked the 1978 Amendment’s protection from merger previously afforded to pre-1970 lots. Moreover, while Locus arguably falls under the 2005 Amendment’s definition of a “non-conforming lot,” the definition section does nothing to further protect non-conforming structures or uses which are not otherwise protected. Rather, such definition is subject to Section VII A.1, which allows non-conforming uses (concerning both structures and land) to the extent that they are consistent with G. L. c. 40A. Given that Locus has not been in theoretical compliance with Section 6 (of G. L. c. 40A) since it was merged with Lot F-4 in 1976, Locus also fails to comply with the 2005 Amendment.

Plaintiffs emphasize the “statutory policy [behind Section 6] of keeping once-buildable lots buildable,” Rourke v. Rothman, 448 Mass. 190 , 197 (2007), and argue that since Locus was protected by the 1978 Amendment, it is therefore protected in perpetuity. Unlike Rourke, however, Locus did not meet the requirements of Section 6 at the time of the 1978 By-law change of dimensional requirements because Locus was under common ownership with Lot F-4. As a result, Locus is totally dependent on the 1978 Amendment for protection from the merger doctrine. When such protection was lost in 2005, the grandfather protection was also lost. It is true that Rourke notes that the elimination of nonconformities “is certainly not the goal of the first sentence of [the fourth paragraph of Section 6], the manifest purpose of which is to preserve the buildable status of certain nonconforming lots in perpetuity.” Id. That said, under the facts presented in the case at bar, Locus can not be considered to be a “certain nonconforming lot,” as it was held in common ownership prior to the 1978 Amendment.

In light of the above, I find that Locus is not a buildable lot and that variances are required, as a result of the 2005 Amendment.

As a result of the foregoing, I DENY Plaintiffs’ Motion for Summary Judgment and ALLOW Defendants’ Cross-Motion for Summary Judgment.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: June 24, 2010