KEVIN JONES v. ANTHONY EONAS, JOHN CAHILL, KENNETH GALLIGAN, D. SEAN NOONAN, and VIOLA PACKARD, As They Are Members Of The Zoning Board Of Appeals Of The City Of Brockton

The plaintiff, Kevin Jones, filed a complaint seeking, pursuant to G. L. c. 40A, §17, judicial review of a decision (“Decision”) of the Zoning Board of Appeals (“Board”) of the City of Brockton, whose members are defendants.

The Board’s challenged Decision was filed with the City Clerk on May 2, 2008. In the Decision, the Board denied an administrative appeal from the determination by the City’s building inspector that the plaintiff was not entitled to receive a building permit he had requested. The building permit unsuccessfully sought by plaintiff would have authorized construction of a new single family dwelling on a parcel of land (“Lot,”“Lot 39, or “locus”) with a street address of 15 Carrlyn Road, measuring 50 feet wide and 100 feet deep, and thus containing 5,000 square feet. The locus for which plaintiff sought the building permit is that depicted as lot 39 on a plan (“Nye Plan”) entitled “Plan of Lots at Terrace Heights Brockton, Mass. Owned by William C. Nye, prepared by Hayward & Hayward, Civil Engineers, recorded with Plymouth Plans in Book 3, Page 887. (On the Nye Plan, what is now Carrlyn Road is called East Terrace.)

The locus does not comply with current dimensional requirements of the City’s zoning ordinance. Among other things, current zoning in the relevant R-1B single family residential district insists upon 30,000 minimum lot square footage, and lot frontage of no less than 175 feet. The question considered by the inspector and the Board, and now before this court, is whether, notwithstanding these conceded dimensional shortcomings under today’s zoning regulations, Lot 39 is buildable by virtue of rights conferred by a section of the City’s zoning ordinance, Section 27-12, which provides, in certain instances, the right to build when land is smaller than otherwise required.

The case came before me for hearing on the defendants’ motion for summary judgment. I now decide that motion, ruling that plaintiff’s Lot does not qualify for the protection afforded by Section 27-12, and that the decision of the Board, upholding the denial of plaintiff’s requested building permit, was correct.

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“Summary judgment is granted where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Id. at 644. In deciding a motion for summary judgment, the court may consider pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. Community Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney General v. Bailey, 386 Mass. 367 , 371, cert. den. sub nom. Bailey v. Bellotti, 495 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1989).

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The following facts properly are before the court in the summary judgment record, and appear without substantial dispute.

Plaintiff in August, 2005 purchased from Lorraine Gardiner for $305,500 land (“Property”) on Carrlyn Road which included Lot 39. The Property was conveyed to Jones by one deed (“2005 Deed”), dated August 19, 2005 and that day recorded with the Plymouth Registry of Deeds (“Registry”) in Book 31176 at Page 78.

The deed from Gardiner to Jones describes the Property as follows:

“the land in said Brockton, Plymouth County, Massachusetts, located on the easterly side of Carrlyn Road, formerly known as East Terrace, and being Lots #39, #40 and #41, om [sic] ‘Plan of Lots at Terrcace [sic] Heights, Brockton, Massachusetts, owned by William C. Nye, Hayward and Hayward, Civil Engineers’, which said plan is recorded with Plymouth Plans in Book 3, Page 887.

Said parcel is more particularly bounded and described as follows:

NORTHERLY by Lot #38 on said plan, one hundred (100) feet;

EASTERLY by land now or formerly of one Woodworth, one hundred fifty(150) feet;

SOUTHERLY by Lot #42 on said plan, one hundred (100) feet;

WESTERLY by said Carrlyn Road, one hundred fifty (150) feet.

The above described premises are also conveyed subject to all encumbrances, easements and restrictions of record.

Being the same premises conveyed to Lorraine C. Gardiner by Deed recorded at the Plymouth County Registry of Deeds at Book 5302, Page 110.”

A single family dwelling is on the Property, which comprises Lot 39 (locus), Lot 40, and Lot 41 as depicted on the Nye Plan. The Property measures 15,000 square feet. The dwelling straddles two of the lots depicted on the Nye Plan, those shown as Lot 40 and Lot 41. That portion of the Property which is Lot 39 on the Nye Plan is unimproved, and, as far as the record shows, has been unimproved at all relevant times. The Lot is covered with a grass lawn, and from the street has the appearance of the left side yard of the house on the remainder of the Property. No fence or other barrier divides or set off in any manner the Lot from the improved portion of the Property.

In January of 1955, William and Ruth Ingram conveyed the Property to Einar Stigbert. The deed, dated January 14, 1955 and recorded with the Registry in Book 2394, Page 372, employs the same description as that used in the 2005 Deed to Jones. By deed dated February 15, 1983 and recorded with the Registry in Book 5302, Page 110, Stigbert conveyed the Property to Jones’ grantor, Lorraine Gardiner, reserving a life estate. This deed uses the same description as in both the deed into Stigbert and the 2005 Deed to Jones. From at least the January 14, 1955 deed forward, the Property at all times has been conveyed from owner to owner using a description that matches that used in the deed by which plaintiff acquired his title to the Property in 2005. The three lots of the Nye Plan included within the Property have, during the same time, more than a half-century, been in common ownership.

The single description used in each conveyance of the Property since at least 1955 describes it as “the land” “being Lots #39, #40 and #41" on the Nye Plan; the description is also particularized by giving, as a bounding description, the abutting street and parcels. This bounding description is provided in all of the deeds of the Property using the boundaries of the entire Property. That is, the bounding description does not describe the three included lots of the Nye Plan as bounding each on the other, but rather unites those three 5,000 square foot lots and provides the designation of what bounds the combined three Nye Plan lots, running around the outer perimeter of them, treating them, for descriptive purposes, as a single parcel. The bounding description thus describes the Property as presenting 150 feet at the street and across the back boundary, and 100 feet on the left and right side boundaries.

Since the 1950s, the Property has been assessed and taxed by the City as a single lot. All through this time, the Assessors of the City have treated the Property as Plot 14 on Assessors’ Map 12, with an area of 15,000 square feet, and including in the assessed value that of the dwelling erected on the structure, a three bedroom, two bath Cape style home erected, according to the tax records, in 1955.

When plaintiff decided to buy the Property, the prior owner had listed the Property with a real estate broker who marketed it, on behalf of the seller, as land of .34 of an acre (just about 15,000 square feet) with 150 feet of street frontage and improved with the Cape home. There was no marketing of the Property as made up of separate lots, and no listing of Lot 39 as separately available for either independent purchase or development.

The parties concur that the relevant zoning ordinances are those adopted by the City on November 13, 1967. Part of that enactment was the provision, in Section 27-12, of certain rights for certain land then being subjected to the new zoning regime. Section 27-12, the interpretation of which is the focus of the parties’ dispute, reads as follows:

“Section 27-12. Existing lots of record in residential zones.

A single-family structure may be constructed on any existing lot of record in any residential zone if such lot has less than the minimum area or frontage, or both, required for building lots in the residential zone in which it is located; provided the following conditions are met:

1. No structure shall be erected on any nonconforming lot if adjacent to the lot in question there exists vacant land, in the same record ownership at the time of enactment of this chapter, which would create a conforming lot if such vacant land were combined with the lot deficient in area, or frontage, or both.

2. No structure shall be erected on a lot containing less than the required area of [sic] frontage, or both, unless the minimum side yards for lots in the residential zone where such lot is located are maintained.

3. No structure shall be built on any lot of less than the required area or frontage, or both, unless the minimum front and rear yards for lots in the residential zone where such lot is located are maintained.

4. All lots, regardless of size, shall have provision for off-street parking for at least one (1) vehicle.

5. All lots shall have a minimum frontage of fifty (50) feet and a minimum area of five thousand (5,000) square feet.”

The parties agree that the right of the plaintiff to build on Lot 39 turns on the correct meaning and effect of Section 27-12. Counsel agree as well that, if Section 27-12's benefit extends to Lot 39, it would not be unavailable for building based on any deficiency relating to front, back, or side yards, nor based on a lack of the minimum frontage or area that Section demands. The question is whether, on the undisputed facts in the record before the court, Lot 39 is or is not given by Section 27-12 the right to have a single family house constructed on it.

I conclude that Lot 39 does not enjoy Section 27-12's protection, because, on the uncontested facts before me, it is not an “existing lot of record,” and because, Section 27-12 notwithstanding, the zoning law doctrine of merger remains applicable to the Property. Lot 39 cannot stand alone for zoning purposes, because its frontage and area contribute to the zoning compliance of the remainder of the Property, long ago improved with a dwelling.

To qualify for the special treatment extended by Section 27-12, Lot 39 must have the status of an “existing lot of record.” The simple fact that Lot 39 was shown on the early Nye Plan as a separately-denominated 50 by 100 foot lot does not, ipso facto, qualify Lot 39 as an “existing lot of record” for purposes of Section 27-12 today. While the early separate depiction of Lot 39 on a recorded plan might be sufficient for this purpose had Lot 39 been treated, held, and conveyed separate and apart from adjoining land on the Nye Plan from then until now, the record portrays the opposite. The record establishes that Lot 39 has, at all relevant times since the up-zoning which took place in connection with the comprehensive revision of Brockton zoning in 1967, been described and included, for all record title purposes, as an integrated part of the larger 15,000 square foot Property. The Property passed from owner to owner with a consolidated description that effectively kept the three lots from the old Nye Plan united. The language, intention, and effect of each of the relevant record conveyance instruments was to unite, keep united, and pass a united title to, the entire 15,000 square foot parcel.

While for understandable conveyancing purposes, references to the three 5,000 square foot lots of the Nye Plan were included as one element of the overall legal description of the Property used in each successive deed, this alone does not mean that one of those three lots, Lot 39, constitutes an “existing lot of record” under Section 27-12 so as to qualify for a building permit in 2008. In this respect, the opinion of the Supreme Judicial Court in Lindsay v. Board of Appeals of Milton, 362 Mass. 126 (1972) is an important source of guidance. The deed considered in that case did describe the land as “being Lots 1 and 2" on a recorded 1903 plan, but the locus also was described in the deed as “bounded and described [by certain metes and bounds and with a single area] according to said plan.” Id. at 127 [footnote omitted]. The Lindsay court held that “the deed by which the plaintiffs acquired the ... property does not entitle them to have it treated as two lots for zoning purposes.” Id., at 130. “The plaintiffs’ recorded deed, and not the recorded 1903 plan, therefore is the proper measure of what they purchased from the Murdocks. Since the deed describes the property conveyed as ‘[a] certain parcel of land’ and sets out a metes and bounds description of a single area, the effect of the deed was to convey one lot as that term is used in the zoning by-law. ... “ Id., at 130-131. The court went on to explain that it “is a well known practice in conveyancing to refer to a recorded plan as a convenient method of showing chain of title. ... The mere fact that ... [various mesne deeds] and the plaintiffs’ deed all refer to the 1903 plan, therefore, is insufficient to give rise to a presumption of an intention to preserve the lots designated therein.” Id., at 131.

So too with the deeds in Jones’ chain. While they do make reference to the three 5,000 square foot lots on the Nye Plan from which the Property’s title derives, all the deeds describe the entire 15,000 square foot Property as “[s]aid parcel,” and give it a bounding description that treats all the three old Nye Plan lots as one united piece of land. The teaching of Lindsay is that the mere presence of smaller lots on an old record plan, and subsequent passing reference to them in deeds describing a larger united parcel, do not keep the old, small lots infused with zoning protection, even under an indulgent zoning bylaw which might grandfather existing lots of record that have been kept truly separate and apart from adjoining land in different ownership.

Plaintiff argues that the purpose of Section 27-12 was to guarantee for all time the separate buildability of any lot in Brockton which, at the time that provision was enacted, met its dimensional minima and at any earlier time had been shown as a lot on a recorded plan or described as a lot in a recorded deed. This expansive reading of Section 27-12 is not correct.

First, plaintiff’s position on this is contrary to the general weight of zoning law, which disfavors building on lots that are dimensionally substandard, where adjoining land in common ownership might be combined to eliminate or at least reduce the deficiency. This doctrine of merger achieves strong support in our zoning decisions. “A basic purpose of the zoning laws is ‘to foster the creation of conforming lots.’ ... [T]his purpose... is reflected in the zoning principle that precludes an owner from availing [herself] of a nonconforming exemption unless [she] includes [her] adjacent land in order to minimize the noncomformity.” Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236 , 238 (2001), quoting Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999), quoting from Murphy v. Kotlik, 34 Mass. App. Ct. 410 , 414 n.7 (1993) .

This doctrine requires merger where the exemptions in the first sentence of G.L. c. 40A, §6, fourth par. would otherwise “grandfather” a subsized lot, protecting it against newer, more demanding dimensional regulations. It is true, as plaintiff urges, that a municipality may grant even more zoning indulgence to undersized lots than required at a minimum by section 6, and that when the local bylaw or ordinance does so in a clear, authoritative way, the local legislative determination to grant greater dispensation will be respected by the courts. But the local decision to grant more latitude must be apparent. “While a town may choose to adopt a more liberal grandfather provision, it must do so with clear language.” Marinelli v. Board of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005). The language of Section 27-12 does not in any express way evince intention that in Brockton the doctrine of zoning merger be eradicated, certainly not when there is no “existing lot of record” which meets the test of that section. And there is nothing in the words of Section 27-12 showing a legislative intention that the depiction of a lot on some early recorded plan prior to a zoning change, without more, entitles that lot’s successor owner, decades later, to a building permit automatically.

The ordinance itself shows that Section 27-12 was not intended to do away entirely with the doctrine of zoning merger. The first numbered subparagraph of that section provides that “[n]o structure shall be erected on any nonconforming lot if adjacent to the lot in question there exists vacant land, in the same record ownership at the time of the enactment of [Section 27-12] which would create a conforming lot if such vacant land were combined with the ... [deficient] lot....” (emphasis supplied). This provision refers to a “nonconforming lot,” a term defined in Section 27-61 of the zoning ordinance as a “lot in single ownership, where the owner of said lot does not own any adjoining property....” The ordinance displays awareness of the merger doctrine, and of the general insistence of the law that owners use adjoining commonly-owned land to reduce zoning deficiency. In light of this legislative definition of a critical term used in the operative provision of Section 27-12, I cannot come to the conclusion for which plaintiff argues-- that Section 27-12 represents a considered effort by the City to eliminate categorically the doctrine of merger from the zoning ordinance. The ordinance shows the opposite to be the case.

The decision of this court in Correia v. Brockton Zoning Bd. of Appeals, 12 LCR 32 (2004), a case in which the judgment was affirmed by the Appeals Court in an unpublished memorandum, 63 Mass. App. Ct. 1118 (2005), does not at all require a contrary conclusion. It is true that in Correia the courts determined that a subsized Brockton lot, shown on an 1883 recorded plan, was entitled under Section 27-12 to a building permit. But the land at issue in Correia stood in a very different posture from that in the case now before me. The courts in Correia gave weight to the separate conveyancing history and use of the single lot over the entire time since its creation until the building permit was sought. The lot in Correia had been shown “on recorded plans as [a] separate lot[] for more than 100 years, and the Property and Locus have never together been one lot of record. ... Furthermore, the deed from the Balers [the prior owners] refers to the Property and Locus as two separate parcels of land. Additionally, the two parcels have been taxed separately since at least 1999 and have frontage on different streets.” Id,. at 34. The two lots in Correia had “never [been] combined... on a recorded plan or in a deed. Compare Lindsay v. Board of Appeals of Milton, 362 Mass. 126 (1973).”

The Correia lots had been separately described in the various deeds over the years, using distinct legal descriptions for each. The rule set out in Lindsay, supra, requires attention be paid to the manner in which lots in the relevant deeds are described and passed from owner to owner. The Correia court was cognizant of Lindsay, and found that the deeds upon which the Correia plaintiffs relied did not unite the lots at issue there, but rather took care to keep them separate and apart for purposes of Section 27-12. The deeds in the case now before me are materially different, and require a different conclusion regarding the qualification of Lot 39 for dispensation under Section 27-12. Lot 39, unlike the lot under review in Correia, does not qualify under Section 27-12, and is not entitled to a building permit based on that section’s provisions.

This is the position adopted by the City’s Building Inspector, and by the Board in upholding his decision not to issue Jones a building permit. The Board’s decision is correct, and not to be modified or annulled by the court.

Defendants’ motion for summary judgment is GRANTED and the plaintiff’s motion pursuant to G.L. c. 231, §6F is DENIED.

Judgment accordingly.

Gordon H. Piper

Justice

Dated: July 12, 2010