LINDA E. LEDDY, TRUSTEE, MANOMET CENTER TAFT DRIVE GIFT NOMINEE TRUST v. CHRISTOPHER MULHERN, JOSHUA ALPER, NIGEL GALLAGHER, JOAN LANGSAM, DONNA JALBERT PATALANO, and RICHARD SAMPSON, JR., as they are Members of the TOWN OF WINCHESTER BOARD OF APPEAL

The present lawsuit, an appeal pursuant to G.L. c. 40A, § 17, arises from a decision [Note 1] of the Town of Winchester Board of Appeals (Board) upholding a determination by the Zoning Enforcement Officer (Officer). On March 12, 2009, the Officer determined that the unimproved lot at 35 Taft Drive, Winchester, Massachusetts (Locus/Premises) was not a buildable lot as it failed to comport with the frontage requirements of § 6.1 [Note 2] of the Zoning Bylaw of the Town of Winchester (Bylaw). That decision was rendered to Linda E. Leddy, Trustee, Manomet Center Taft Drive Gift Nominee Trust (Leddy/Plaintiff), the plaintiff herein and owner of 35 Taft Drive.

Along a portion of its rear lot line, the locus adjoins an improved lot at 4 Overlook Way in Winchester, MA (Adjoining Lot). The two lots came under common ownership as a result of conveyances in 1950 and 1961, respectively.

Following amendments to the Bylaw in 1971 and 1972, Locus became nonconforming as to frontage while the Adjoining Lot became nonconforming as to area. The common owner conveyed the Adjoining Lot to a third party in 1999 while conveying Locus to the Plaintiff in 2000. Plaintiff seeks a declaration that Locus is a buildable lot.

For the reasons that follow, this court concludes (a) that Locus is a nonconforming lot with regard to frontage, (b) that by virtue of being held in common ownership with the Adjoining Lot at the time Locus became nonconforming, it is not benefited by the grandfather provisions of § 3.2 of the Bylaw, and (c) consequently, the Board correctly determined that Locus is not buildable.

Background [Note 3]

Locus, at 35 Taft Drive in Winchester, was created in 1959 pursuant to a subdivision plan entitled “Pond Estates, Winchester, Mass. April 14, 1959 Scale 1” = 40’ Single Residence “A” Owner and Subdivider George J. De Vries and Winchester Estates, Inc.” The said Plan was endorsed by the Winchester Planning Board on September 8, 1959 and recorded at the Middlesex South Registry of Deeds (Registry) on September 26, 1959 at Book 9459, Page 294. Locus is designated as Lot 35 on said Plan and is depicted as consisting of approximately 20,180 square feet. Further, it is situated in a Residence A Zoning District (District), where it possesses 99.59 feet of frontage on Taft Drive.

At the time of its creation, the Bylaw required that a buildable lot possess a minimum area of 20,000 square feet, a minimum frontage of 50 feet, and a minimum lot width of 120 feet. The Premises conformed to the then existing dimensional requirements.

Along a portion of its rear lot line, Locus adjoins 4 Overlook Way in Winchester (Adjoining Lot). This Adjoining Lot was created in 1941 and is depicted as Lot 7 on a subdivision plan endorsed by the Winchester Planning Board on June 20, 1941 and recorded with the Registry on July 15, 1941 at Book 6516, Page 503. The subdivision plan is entitled “Plan of Lots Winchester, Mass. Scale: 1 in. = 40 ft. June 19, 1941 F.A. Ewell, Engineer. Winchester, Mass.” The Adjoining Lot, situated in the District, consists of 15, 017 square feet with 125.85 linear feet of frontage on Overlook Way with a lot width “the same or greater than the frontage throughout.”

In 1941, at the time the Adjoining Lot was created, and approximately 18 years before Locus was created, the Bylaw required a minimum area of 15,000 square feet with a minimum frontage of 50 feet. At the time of its creation then, the Adjoining Lot was in conformance with the then existing dimensional requirements.

The said Adjoining Lot was conveyed to Daniel R. Weedon, Jr. and Barbara J. Weedon (Weedons) by virtue of a deed from Franklin McDermott and Marjorie D. McDermott dated June 17, 1950 and recorded with the Registry on June 30, 1950 at Book 7603, Page 122.

On or about March 1, 1957, between the time the Adjoining Lot was created and the time Locus was created, Town meeting amended the Bylaw so as to increase the minimum lot size in the District from 15,000 to 20,000 square feet. An exemption from the increased lot area requirement applied to parcels that were (a) shown on a subdivision plan approved by the Planning Board prior to February 4, 1957, provided, however, that (b) such lots had a minimum area of 15,000 square feet and (c) a minimum width of 100 linear feet. Inasmuch as “4 Overlook Way had more than 15,000 square feet, a width greater than 100 feet and was shown on a subdivision plan approved prior to 1957, with the adoption of the 1957 amendments, 4 Overlook Way was a nonconforming grandfathered lot.” [Note 4]

The Weedons acquired Locus by virtue of a deed from Westchester Estates, Inc. dated May 31, 1961 and recorded at the Registry on June 1, 1961 at Book 9818, Page 483. As a consequence, both Locus and the Adjoining Lot were brought into common ownership in 1961.

Subsequent zoning amendments adopted between October 20, 1972 and October 29, 1973, increased the frontage requirements in the District to 100 feet while eliminating the exemption language concerning pre-1957 subdivision lots. Consequently, the Adjoining Lot became nonconforming as to area, while Locus became nonconforming as to frontage.

The Weedons conveyed the Adjoining Lot to Ann Marie Baxter by deed dated July 19, 1999 and recorded with the Registry on July 22, 1999 at Book 30448, Page 571. The following year they conveyed Locus to Linda E. Leddy, Trustee, Manomet Center Taft Drive Gift Nominee Trust (plaintiff) by virtue of a deed dated November 20, 2000 and recorded at the Registry on even date at Book 32044, Page 153.

“By letter dated February 27, 2009, the Trust sought a determination by the Zoning Enforcement Officer that 35 Taft Drive is a lawful buildable lot pursuant to the Zoning Bylaw because (a) Section 3.22 of the …Bylaw…exempts 35 Taft Drive and 4 overlook Way from the merger rule and (b) when created, 35 Taft Drive conformed to the existing dimensional requirements of the zoning Bylaw.” [Note 5]

In his response, the Officer recited that 35 Taft Drive was not a buildable lot inasmuch as “it does not meet the requirements of Section 6.1 of the Winchester By-Law in regards to frontage.” [Note 6]

Upon appeal, the Town of Winchester Board of Appeal, voted to affirm the Officer’s determination on the grounds that (a) 35 Taft Drive had merged with 4 Overlook Way, (b) as a result of the merger, 35 Taft Drive “lost any rights to grandfather protection pursuant to G.L. c. 40A § 6, and (c) 35 Taft Drive does not enjoy more indulgent grandfather protections pursuant to § 3.22 of the By-Law.” [Note 7]

At the time the Commissioner made his determination that Locus was not a buildable lot, the following Bylaw provisions were in effect:

SECTION 3 – NON-CONFORMING USES, STURCTURES AND LOTS

3.1 Intent

No use or structure on a lot now or hereafter existing, which use, structure or lot is not in conformity with the provisions of this By-Law or any amendment thereto shall be permitted except as provided in this Section 3 of this By-law.

3.12 As to the erection of new structures, it is the intent of this By-law to limit any new construction on a lot not in conformity with the provisions of this Section 3 of this By-law.

3.2 Non-Conforming Lots

3.21 Any unimproved parcel of land shown or described as a separate lot in a recorded deed or plan, which, if built upon or used for single-family or two-family use would fail to meet any frontage, lot area, lot width or front, side or rear yard requirement by reason of the subsequent adoption of any amendment to this By-law, may be built upon for single-family or two-family use, provided:

(a) Such parcel of land is now and was at the time of the adoption of such amendment held in single ownership and not in common ownership with any adjoining land; and,

(b) Such parcel then conformed to the applicable zoning requirements for street frontage, lot area, lot width and, if now built upon for such single-family or two-family use, will comply with the then applicable zoning requirements for front, side and rear yards; and,

(c) Such parcel contains at least five thousand (5,000) square feet and fifty (50) feet of frontage on a street, road or way.

3.22 If two or more lots or combinations of lots and portions of lots, in single ownership, with continuos [sic] frontage on a street, road or way do not meet the requirements for lot width, street frontage or lot area as established by this By-law, the land involved shall be considered to be an undivided parcel for the purposes of this By-law. No portion of said parcel shall be used for the erection of a structure nor shall it be separately sold, mortgaged or otherwise transferred or conveyed unless it shall meet lot width, street frontage and lot area requirements established by this By-law. No division of any such parcel shall be made which leaves remaining any lot with width, street frontage or lot area below the requirements stated in the By-law except that such lots may be used or may be separately sold, mortgaged or otherwise transferred or conveyed if each lot is occupied by a structure designed primarily for a use which is permitted as a principal use in the district. (emphasis added)

On April 27, 2009, the Town Meeting approved amendments to its Bylaw, including, inter alia, the elimination of § 3.22. The text of the amendments was approved by the Attorney General and notice thereof was published in a local newspaper on September 25, 2009.

On February 27, 2009, Plaintiff forwarded a letter to the Commissioner seeking a declaration that the locus was “a buildable lot pursuant to the provisions of the Town of Winchester Zoning Bylaw.” Plaintiff argued that the language in § 3.22 of the zoning bylaw – “with continuous frontage on a street, road or way” – provided a limitation to the “typical merger rule” under G.L. c.40A § 6 and prevented the merger of adjoining, nonconforming lots “unless the adjoining lots share a common street frontage.” As the Premises and the Adjoining Lot do not share continuous frontage, Plaintiff asserts that the Bylaw exempts each lot from the merger rule, thereby rendering Locus a buildable lot.

By letter of March 12, 2009, the Commissioner denied the request concluding that Locus failed to “meet the requirements of § 6.1 of the Winchester Zoning By-Law in regards to frontage.”

Thereafter, on March 26, 2009, plaintiff filed a letter with the Office of the Town Clerk thereby appealing the Commissioner’s determination pursuant to § 8.4 of the Bylaw and G.L. c.40A, §§ 8 and 15. The Board conducted a hearing on May 19, 2009, at which time it voted to affirm the Commissioner’s determination. The Board’s written decision was filed with the Office of the Town Clerk on July 6, 2009.

In its decision, the Board observed that “[a] town may adopt an indulgent Zoning By-law in order to eliminate the application of the well-settled merger doctrine,” but, if a town “chooses to establish a more generous zoning provision than those contained in [G.L. c.40A] § 6, it must do so expressly and in clear language.” (citing Preston v. Bd. of App, of Hull, 51 Mass. App. Ct. 236 , 240-243 (2001); Marinelli v. Bd. of App. of Stoughton, 65 Mass. App. Ct. at 903). The Board went on to state that only an “awkward interpretation” of § 3.22 could find that it manifests such intent.

The Board concluded its decision as follows:

The simple facts found by the Board reveal: (1) that the Locus was merged with 4 Overlook Way; (2) that through the merger, the Locus lost any rights to grandfather protections pursuant [to] G.L. c. 40A, § 6; and finally, (3) the Locus does not enjoy more indulgent grandfather protections pursuant to § 3.22 of the By-law. After the Weedons divided their merged lot and sold 4 Overlook Way. In 1999, they created an unimproved lot with frontage along Taft Drive of 99.59’ (where 100’ is required). The locus, therefore, is nonconforming as to frontage.

Whereupon, the Board affirmed the determination of the Zoning Enforcement Officer that “the Locus is not a buildable lot.”

Plaintiff initiated this action on July 23, 2009 challenge the Board’s determination. The Complaint alleges the Board “exceeded its authority by disregarding the plain language of Section 3.22” of the zoning bylaw and that the Board’s decision is “arbitrary . . . capricious . . . contrary to law and fact . . . based on legally untenable grounds . . . and is unreasonable.” The Complaint sought, inter alia, an annulment of the Board’s decision, and a determination that the locus is a buildable lot.

Plaintiff’s Motion for Summary Judgment was filed on November 23, 2009. Defendant Board’s Cross Motion for Summary Judgment was filed on December 21, 2009. Plaintiff responded with a Brief in Opposition to Defendants’ Cross Motion for Summary Judgment and in Reply to Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment on January 22, 2010. Thereafter, the Motions were heard and taken under advisement.

A. Summary Judgment Standard

Summary judgment is to be granted when “pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . 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.” See 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. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). The substantive law which controls the outcome of the issue determines which facts are material for purposes of summary judgment. Houghton v. Johnson, 2006 WL 2304036 (Mass. Land Ct.) (citing Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993)).

To meet its burden, the moving party need not proffer affidavits or other similar materials negating the opponent’s claim. Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 713 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis, 410 Mass. at 711 (citing Celotex Corp., 477 U.S. at 322); See also Lane v. Zoning Bd. of App. of Falmouth, 65 Mass. App. Ct. 434 , 440 (2006) (reasoning “[b]ecause the defendants met their burden to show an absence of evidence in support of plaintiff’s case, the burden shifted to the plaintiffs to proffer evidence supporting their position”) (citing Kourouvacilis, 410 Mass. at 411). Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment is satisfied.” Kourouvacilis, 410 Mass. at 713 (quoting Celotex Corp., 477 U.S. at 323-324). [Note 8]

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light . . . does not entitle that party to a favorable decision.” Caitlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Once the moving party has met its burden, in order to withstand summary judgment, the non-movant must allege specific facts showing that there is a genuine issue of material fact. Baldwin v. Mortimer, 402 Mass. 142 , 143-144 (1988) (citing Godbout v. Cousens, 396 Mass. 254 , 261 (1985)). “In determining whether a factual dispute is ‘genuine,’ the Court must determine whether the evidence is such that a reasonable [factfinder] could return a verdict for the nonmoving party.” Steffen v. Viking, 441 F. Supp. 2d 245, 250 (2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Although the court may not pass on the credibility of witnesses or weigh the evidence, Atty. Gen. v. Brown, 400 Mass. 826 , 832 (1987), Mass. R. Civ. P. 56 (c) does permit it to dispose of controversies, if in essence there is no real dispute as to the salient facts, or resolution of the matter depends solely upon judicial determination of a question of law. On the present record, this court concludes that there is no genuine issue of material fact. This is a proposition with which the litigants concur. Consequently, the matter is ripe for summary judgment.

B. The Merger Doctrine and G.L. c.40A, §6

“Under the common-law merger doctrine, when adjacent nonconforming lots come into common ownership, they are normally merged and treated as a single lot for zoning purposes.” Hoffman v. Bd. of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 811 (2009).

“A basic purpose of the zoning laws is ‘to foster the creation of conforming lots.’” Asack v. Bd. of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999) (quoting Murphy v. Kotlick, 34 Mass. App. Ct. 410 , 414 n.7 (1993)). The merger doctrine reflects this zoning principle in that it “precludes an owner from availing himself of a nonconforming exemption unless he uses his adjacent land in order to minimize the nonconformity.” Asack, 34 Mass. App. Ct. at 736 (citing Sorenti v. Bd. of. Appeals of Wellesley, 345 Mass. 348 , 353 (1963).

In practice, “adjacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities.” Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987). “The rationale . . . is that an owner who has or has had adjacent land has it within his power, by adding such land to the substandard lot, to comply with the [zoning] requirement, or, at least, to make the [zoning feature] less substandard.” Sorenti, 345 Mass. at 353. “Conformity to the requirements of the zoning ordinance is achieved . . . by treating the ostensibly conforming lot as servient to the nonconforming lot to the extent necessary to achieve compliance with the . . . requirements of the zoning ordinance . . . .” Dicicco v. Berwick, 27 Mass. App. Ct. 312 , 314 (1989). “Because the owner’s adjacent undersized lots had merged and thus lost their separate identities, the grandfather exception did not apply.” Hoffman v. Zoning Bd. of Cambridge, 74 Mass. App. Ct. 804 , 812, (2009).

G.L. c.40A, §6 “represents a statutory codification of” the merger doctrine. “The purpose of the statutory grandfather provision is…to ‘protect [] a once valid lot from being rendered unbuildable for residential purposes… but only if there is compliance with statutory conditions. The condition that the nonconforming lot “not be held in common ownership with any adjoining land” represents a statutory codification of a principle of long standing application in the zoning context: a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity.” Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690 (1989). (internal citations omitted)

The fourth paragraph of § 6 includes the following recitation in sentence one:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance of 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 the then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.

A municipality may adopt a “more generous grandfather provision [which] can, indeed, trump the grandfather provisions in G.L. c.40A, s.6.” Marinelli v. Bd. of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005). Cases where nonconforming lots were grandfathered despite title being held in common ownership “involve indulgent local zoning by-laws, rather than G.L. c.40A.” Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 , 240 (2001) (citing Clarke v. Bd. of Appeals. of Nahant, 338 Mass. 473 (1959); Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. 148 (1981); Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 (1987)). “It is within the legislative power of the city to override the effects of the common-law merger doctrine and allow adjacent nonconforming lots that came into common ownership to be treated as separate lots for zoning purposes.” Hoffman, 74 Mass. App. Ct. at 812.

Discussion

In their respective Summary Judgment memoranda, the parties raise similar issues for the court’s consideration.

The plaintiff posits the following:

(1) Did Section 3.22 of the Zoning Bylaw operate to make 35 Taft Drive a buildable lot ? and

(2) Did the 2009 zoning Bylaw amendments operate to render 35 Taft Drive a non-buildable lot? [Note 9]

The defendants posit the following:

(1) In denying the appeal of the Plaintiff, did the Board of Appeal correctly interpret former Section 3.22 of the Winchester Zoning By-law?

(2) Did the recodification of the Winchester By-law in April of 2009 have any effect in the instant matter? [Note 10]

The court first considers the second question concerning the impact of the April 2009 Bylaw amendment. Plaintiff argues, in this regard, that if “Section 3.22 grandfathered 35 Taft Drive, it did not become unbuildable by virtue of the 2009 amendments.” [Note 11] Plaintiff asserts as well, that “[t]he zoning amendments which deleted Section 3.22, did not retroactively impact the protected status of 35 Taft Drive.” [Note 12] For their part, the defendants observe that “[t]he recodification of the Winchester Zoning By-Law in 2009 had no effect on the instant matter.” [Note 13] The parties appear to agree then, that the elimination of § 3.22 in April 2009 will have no bearing on the adjudication of this case. As this court concurs with that view, it will treat that issue as waived and will focus on the first issue advanced by the litigants, i.e. concerning the interpretation of § 3.22 and its applicability to the matter at bar.

Sections 3.21 and 3.22

In construing the relevant provisions of the Bylaw, § 3.1 et seq, it is this court’s view that they are essentially unambiguous. [Note 14]

Of § 3.21 and § 3.22 of the Bylaw, § 3.21 has the more general application. Mirroring the first sentence of G.L. c. 40A, § 6, ¶ 4, it provides that (a) an unimproved parcel (b) appearing on a recorded deed or plan as a separate lot (c) if used for a one or two family dwelling, and that (d) would fail to meet any frontage, area, lot width, or front, side or rear yard [setback] requirement (e) owing to the subsequent adoption of a Bylaw amendment, (f) may be built upon, if when the amendment was adopted (g) the parcel at issue was held in single ownership and not in common ownership with any adjoining parcel, and (h) the parcel then conformed to applicable frontage, lot area and width requirements, and (i) if now built upon for such single or two family use, will comply with the applicable zoning requirements for front, side and rear yards, and (j) the parcel contains at least 5,000 square feet and 50 feet of frontage. While the § 3.21 parcel must meet frontage, area and lot width requirements, a qualifying one or two family dwelling constructed thereon must also comply with all setback requirements.

Section 3.22 carries with it the more specific application. In general terms, it applies to two or more lots in single ownership with continuous frontage that fail to meet the requirements set forth in the Bylaw for lot width, area or frontage. Such lots are deemed to be merged under the Bylaw. Contrary to the provisions of § 3.21, however, no explicit mention is made in § 3.22 of setback requirements.

The plaintiff asserts that as the two lots at issue under common ownership lack continuous frontage on a street, they are not subject to the merger doctrine at all. Specifically, plaintiff argues as follows:

Section 3.22 in plan [sic] and unambiguous terms, expressly limits the application of the merger doctrine in Winchester exclusively to abutting lots that share “continuous frontage on a road or way.”

The only fair reading of Section 3.22 is that existing, adjoining lots which do not have continuous frontage are protected from changes in the zoning bylaw….any other interpretation renders Section 3.22 a nullity.

This court disagrees. Rather, it construes § 3.21 as the primary vehicle for incorporating the merger doctrine into the Winchester Zoning Bylaw. That vehicle demands that the parcels at issue comply, inter alia, with frontage, lot area, and lot width requirements; and if built upon, with setback requirements, as well.

In contrast, the more narrow § 3.22 appears, in certain respects, to be somewhat more generous to the property owner insofar as it makes no mention of setback requirements as a factor potentially triggering a merger.

It is this court’s view that § 3.22 is clearly inapplicable to the case at bar inasmuch as Locus and the Adjoining Lot simply lack continuous frontage on a roadway. Our inquiry with regard to that section need not progress any further.

Section 3.21 allows for construction [Note 15] on an “unimproved parcel of land” that is not in compliance with certain zoning requirements [Note 16] provided the nonconforming lot meets certain criteria. One such criterion is that the nonconforming lot “is now and was at the time of the adoption [of the zoning amendment rendering the lot nonconforming] held . . . not in common ownership with any adjoining land.” In other words, a nonconforming lot held in common ownership with an adjoining lot will not be grandfathered under Section 3.21.

Plaintiff argues §§ 3.21 and 3.22 are “discordant” and that they must be “harmonized.” She would do so by viewing § 3.22 as limiting the scope of § 3.21, i.e. so as to require only that the nonconforming lot not be held in common ownership with an adjoining lot with which it shares continuous frontage, in order to avoid application of the merger doctrine. This court disagrees and finds no disharmony between the two provisions.

It is correct to state that a nonconforming lot in common ownership with adjoining land, but not sharing continuous frontage, is effectively exempt from the provisions of § 3.22, but not from those of § 3.21. Yet this does not create disharmony. Section 3.21 places limitations upon nonconforming lots with adjoining land regardless of continuous frontage, but does so only so far as the parcel’s status as a buildable lot is concerned. Section 3.22 goes further – prohibiting construction, sale, transfer, conveyance, and dividing – but does so to a limited set of nonconforming lots – those with continuous frontage.

As § 3.21 is not limited in scope by § 3.22, Locus must meet the criteria of § 3.21 in order to benefit from the grandfather protections and be deemed “buildable” notwithstanding its nonconforming status.

Locus fails to meet the requirement that it “is now and was at the time of the [zoning change at issue] held in single ownership and not in common ownership with any adjoining land.” Title to Locus was acquired by the Weedons on May 31, 1961. At that time, it came under common ownership with 4 Overlook Way, an adjoining lot. The zoning amendments adopted by the Town in 1972 and 1973 increased the relevant frontage requirements from 50 feet to 100 feet and rendered Locus, with its 99.59 feet of frontage, nonconforming. Therefore, it is reasonable to conclude that “at the time of such amendment,” the locus was held in common ownership with adjoining land and thereby does not qualify for the grandfathering protections of § 3.21.

That the plaintiff is a subsequent purchaser and not the title holder at the time Locus and Adjoining Lot were held in common ownership is not an obstacle under §§ 3.21 and 3.22, G.L. c.40A §6 or the merger doctrine. The merger doctrine is commonly applied against an individual who “has [or had] it within his power, by holding title to a nonconforming lot and an adjoining lot, to eliminate, or at least reduce, the nonconformity. Sorenti v. Bd. of Appeals of Wellesley, 345 Mass. 348 (1963); See also Vetter v. Zoning Bd. of Appeals of Attleboro, 330 Mass. 628 (1953). There is no question that the merger doctrine would be applicable against plaintiff’s predecessor in title. Plaintiff, however, did not herself own land adjoining the nonconforming lot and was therefore not in a position to reduce the nonconformity.

However, in Gamer v. Zoning Bd. of Appeals of Newton, 346 Mass. 648 , 650 (1964), the Court observed as follows:

The parties appear to have assumed that once two contiguous lots come into “common ownership,” [the relevant section of the zoning ordinance] applies even after the common ownership ceases. This issue has not been argued and we express no view. There are strong, controlling reasons for so construing the term “common ownership” that an innocent owner’s right to build on his land is determined by matters ascertainable as of record. There is no countervailing indication in the language of the ordinance.

The Court’s statement in Gamer applies with equal force in critical respects to the matter at hand. A review and analysis of “matters ascertainable as of record” disclose that 35 Taft Drive at the time of acquisition by the Plaintiff was not then a buildable lot. Subsequent events have not altered that conclusion.

Conclusion

For the foregoing reasons, this court concludes that the Board’s decision was neither arbitrary, capricious, contrary to law and fact nor based upon legally untenable or unreasonable grounds. [Note 17] Accordingly, it is hereby

ORDERED that Plaintiff’s Motion for Summary Judgment is hereby DENIED.

It is further

ORDERED that Defendants’ Cross-Motion for Summary Judgment is hereby ALLOWED. It is further ORDERED that as this court determines that 35 Taft Drive in the Town of Winchester is not a buildable lot, the decision of the Board of Appeal filed with the Office of the Town Clerk on or about July 6, 2009, is hereby AFFIRMED.

It is further,

ORDERED that Plaintiff’s complaint is hereby DISMISSED.

Judgment to issue accordingly.

SO ORDERED.

By the Court. (Grossman, J.)