MARK D. NELSON v. THE TOWN OF WILMINGTON, CHARLES BOYLE, ROBERT DOUCETTE, EDWARD LOUD, ROBERT SPENCER, AND DANIEL VEERMAN, as they are members of the WILMINGTON BOARD OF APPEALS, MICHAEL SORRENTINO, RANDI R. HOLLAND, ANN YUREK, JAMES BANDA, JR., AND BRIAN CORRIGAN, as they are members of the PLANNING BOARD OF THE TOWN OF WILMINGTON, DANIEL W. PARET, as the former BUILDING INSPECTOR OF THE TOWN OF WILMINGTON, JOHN SPAULDING as the current BUILDING INSPECTOR OF THE TOWN OF WILMINGTON, CAROLE HAMILTON, as she is the DIRECTOR OF PLANNING AND CONSERVATION for the TOWN OF WILMINGTON, MICHAEL CAIRA, WILMINGTON TOWN MANAGER and THE TOWN WATER AND SEWER COMMISSION, et al.

Plaintiff initiated this case on September 2, 2008, by filing a six-count complaint seeking, among other things, an order requiring the Building Inspector for the Town of Wilmington (Town) to issue a building permit for 12 Polk Street (Plaintiff’s Property). On January 29, 2010, the parties filed a stipulation of dismissal of Counts II through VI, leaving Count I as the sole remaining count. In Count I, filed pursuant to G. L. c. 40A, § 17, Plaintiff challenges the denial of a building permit for Plaintiff’s Property, which was upheld by the Zoning Board of Appeals (Board). On April 16, 2010, Plaintiff filed a Motion for Summary Judgment, which was opposed by the Board members through a written opposition filed on May 14, 2010. A hearing was held on June 16, 2010, at which all parties were heard. The material facts are not in dispute.

1. The Kaiser Realty Trust (Trust) is the record owner of Plaintiff’s Property. Plaintiff is the sole trustee of the Trust.

2. Plaintiff’s Property is identified as Parcel 40 on the Wilmington Assessor’s Map 6 and is comprised of Lots 254, 255, 256, 285, 286, 287, 288, 289, 290, 291, and 292, as shown on a plan of land entitled “Wilmington Gardens Addition Wilmington, Mass., owned by Frank W. Coughlin,” dated June 12, 1909 (1909 Plan). The 1909 Plan is recorded with the Middlesex County Registry of Deeds in Plan Book 26, at Page 36.

3. Plaintiff’s Property contains approximately 28,050 square feet and is located, and always has been located, in a residential zoning district. It is currently located in a Residence 20 District which requires 125 feet of frontage under the Bylaw.

4. On March 13, 2008, Plaintiff requested that the Building Inspector determine whether Plaintiff’s Property was a pre-existing, non-conforming lot. The Building Inspector responded on May 6, 2008, that Plaintiff’s Property was not a pre-existing, non-conforming lot.

5. The Building Inspector’s determination, which referenced Town Counsel’s advisory opinion (First Advisory Opinion), concluded that Plaintiff’s Property (1) failed to comply with Section 5.2.3 of the Zoning Bylaw of the Town of Wilmington (Bylaw), and (2) had zero feet of frontage since neither Polk Street nor Sharon Street had been constructed in the location of Plaintiff’s Property. The Building Inspector also noted that he was unable to determine if Plaintiff’s Property had been held in common ownership at any point, due to the fact that Plaintiff had submitted insufficient information.

6. On June 5, 2008, the Building Inspector denied Plaintiff’s application for a building permit for Plaintiff’s Property.

7. On June 11, 2008, Plaintiff submitted an Application for Hearing to the Board (Plaintiff’s Application), requesting a variance from the Town’s Official Map and appealing the Building Inspector’s refusal to issue a building permit for Plaintiff’s Property. [Note 1]

8. The notice advertising the hearing on Plaintiff’s Application characterized the purpose of the hearing as one:

To appeal the decision of the Inspector of Buildings and grant a variance for a lot having insufficient width and depth for a single family dwelling and relief from the Official Map for [Plaintiff’s Property].

9. On July 2, 2008, Town Counsel supplemented the First Advisory Opinion to acknowledge that the title documents submitted, together with facts previously provided, indicated that Plaintiff’s Property had not been held in common ownership with any adjoining property after September 14, 1934. The conclusion regarding lack of frontage contained in the First Advisory Opinion remained the same. [Note 2]

10. On July 9, 2008, the Board held a public hearing on Plaintiff’s Application. The hearing was continued to August 13, 2008, in order for the Board to obtain an opinion from Town Counsel regarding the Board’s authority to issue a building permit pursuant to G. L. c. 41, § 81E. [Note 3]

11. On July 14, 2008, Plaintiff provided additional information to the Building Inspector, including a plot plan that showed the existing paved and gravel portions of Polk Street, grades, topography, frontage, lot lines, abutting owners, and access to Plaintiff’s Property.

12. In response to the additional information provided by Plaintiff, Town Counsel issued an advisory opinion on August 12, 2008 (Second Advisory Opinion), which concluded that Plaintiff was not entitled to a building permit for Plaintiff’s Property because (1) Plaintiff’s Property does not comply with the lot width provisions of Section 5.2.3 of the Bylaw,

(2) Plaintiff’s Property is not entitled to grandfather protection from the Bylaw because it lacks adequate frontage, (3) the alleged existence of a dirt street not constructed with Planning Board approval is not sufficient for establishing frontage, (4) even if a variance from the Official Map were granted, a building permit could not issue until the way providing frontage for Plaintiff’s Property was constructed with Planning Board approval, and (5) that any grandfather protection that Plaintiff’s Property enjoyed has been abandoned.

13. At the continued public hearing on August 13, 2008, Plaintiff submitted additional documents he received from the Town, which included (1) a copy of a building record dated August 28, 1996, which noted the existence of a dwelling on Plaintiff’s Property since 1950 (Building Record); (2) a copy of an assessor’s card, on the reverse of the Building Record (Assessor’s Card), last dated 1974, which noted the dwelling on Plaintiff’s Property had been destroyed by fire in 1973, and that Plaintiff’s Property had frontage of 75 feet and 127 feet on a dirt road; (3) an Air Avis Map prepared for the Town by Wright & Pierce, dated May 1, 1956, which shows Polk Street as a proposed street and Plaintiff’s Property as having 196 feet of frontage on Polk Street; (4) an assessor’s map from 1972 (1972 Assessor’s map), part of a set of maps showing Polk Street, used to create the Official Map; and (5) a copy of the Town’s real estate valuation from 1957, which indicates the existence of a dwelling on Plaintiff’s Property.

14. At the conclusion of the hearing, the Board voted to deny Plaintiff’s Application to the extent it sought to overturn the Building Inspector’s denial of Plaintiff’s Application for a building permit for Plaintiff’s Property (Decision in Case No. 24A-08). At the same hearing, the Board voted to approve Plaintiff’s request for relief from the Official Map pursuant to G. L. c. 41, § 8Y, finding that there is a practical difficulty and unnecessary hardship in complying with the requirement that Plaintiff’s Property be on a way shown on the Official Map (Decision in Case No. 24B-08). The Board conditioned its approval on Plaintiff’s compliance with G. L. c. 41, § 81G, which requires that the Planning Board approve construction of Polk Street with respect to its grading, surfacing, and drainage. Plaintiff did not appeal this condition of the Board’s decision in Case No. 24B-08.

15. The Town first adopted its Bylaw in 1934 (1934 Bylaw). [Note 4] Under the section entitled “Area Regulations,” the 1934 Bylaw provides

Section 10-A. In residence districts, as provided in Sections 4 and 5, land laid out after the adoption of the [Bylaw] shall provide for each dwelling a minimum frontage of 100 feet and a minimum lot area of 10,000 square feet.

Section 10-B. In areas marked A, lots shall not be less than 50 feet wide and 5,000 square feet in area.

Section 10-C. These provisions shall not prevent the erection or placing of any residence building on any lot containing less are than 10,000 or 5,000 square feet, as the case may be, provided such lot on the effective date of these sections does not adjoin other land of the same owner available for use in connection with such lot.

16. The 1934 Bylaw does not contain specific definitions of “frontage,” “street,” or “way.”

17. In 1955, the Town amended the Bylaw by replacing Sections 10-A, 10-B, and 10-C with the following new sections:

Section 10A. In residence districts the lot of land for each dwelling shall contain a minimum frontage of 150 feet, a minimum depth of 150 feet, and a minimum lot area of 22,500 square feet.

Section 10B. In districts not designated as residence districts the regulations of 10A shall apply for all dwellings.

Section 10C. These provisions shall not prevent the erection or placing of any residence building on any lot containing less area than 22,500 square feet provided such lot on the effective date of these sections does not adjoin other land of the same owner available for use in connection with such lot.

18. Following the 1955 amendment, the Bylaw remained unchanged until 1977, when the Town adopted an amendment that qualified the term “frontage” (1977 Bylaw). Section IV-1, entitled “Street Frontage for Dwellings” requires that in residence districts, buildings erected after adoption of the 1977 Bylaw and used as dwellings, must be located on a lot that fronts on an accepted street, or has a permanent means of access not less than thirty feet in width to such a “street or way.” There is no specific definition of the words “street” or “way.”

19. Section V-1 of the 1977 Bylaw provides for a minimum lot area of 22,500 square feet and 125 feet of frontage for lots located in an S-R-A district. Pursuant to Section V-3 of the 1977 Bylaw, frontage must be measured “along a straight line connecting the points of intersection of the side lot lines with the exterior line of the way on which said frontage is located.”

20. Bylaw Section V-3 also provides that

A dwelling may be erected on a lot shown on a plan of record on the effective date of this [Bylaw] having less than the required lot frontage, width, depth or area provided that:

a. said lot conformed with the size provisions applicable to the construction of a dwelling on said lot as set forth in the [Bylaw] on September 14, 1934, or

b. said lot was shown on a final or definitive subdivision plan duly approved by that Planning Board after July 28, 1954.

21. The Town has an official map, as provided for in G. L. c. 41, § 81E (Official Map). The Official Map was created and became effective after a vote at a special town meeting on June 25, 1973. At that time, the only private ways included on the Official Map were those used in common by more than two owners. [Note 5]

22. Currently, there is no building on Plaintiff’s Property, though at one time a structure did exist on Plaintiff’s Property. The building that once stood on Plaintiff’s Property did not have any plumbing or water and it was not heated. Sometime in 1973, the building was destroyed by fire and the structure has never been rebuilt.

23. The surface of Polk Street is decrepit and stops short of the lot boundary of Plaintiff’s Property by approximately 100 feet.

24. Section 1.3.8 of the Bylaw defines “frontage” as “[a] continuous line along the sideline of a street.” Section 1.3.12 of the Bylaw defines “street” as

either (1) an improved public way laid out by the [Town], the Middlesex County Commissioners or the Commonwealth of Massachusetts, or (2) a way shown on a plan thereto approved, endorsed and recorded in accordance with the Subdivision Control Law, or (3) a way placed on or made part of the Official Map of the [Town]. . . .

25. Polk Street is has not been laid out by the [Town], the Middlesex County Commissioners or the Commonwealth of Massachusetts.

26. While Polk Street appears on a subdivision plan that was approved by the Town Board of Survey in 1909 that plan was not “approved, endorsed and recorded in accordance with the Subdivision Control Law,” which was not enacted until 1953.

27. Neither Polk Street nor Sharon Street appears on the Official Map. Where they abut Plaintiff’s Property, neither Polk Street nor Sharon Street has been constructed. No plan regarding the construction of either street has been filed with the Planning Board.

* * * * * *

“Rule 56 (c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (internal quotations omitted). In reviewing a motion for summary judgment, the court shall not assess “the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934). A motion for summary judgment will not be granted “merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.” Bailey, 386 Mass. at 371 (quoting Hayden v. First Nat’l Bank, 595 F.2d 994, 997 (5th Cir. 1979)).

In considering the materials in support of any motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). “Also, all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.” Bailey, 386 Mass. at 371. The moving party bears the burden of affirmatively showing that there is no triable issue of fact, even if that party would not have such a burden if the case were to go to trial. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 644 (2002). “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. A complete failure of proof concerning an essential element of the non-moving party's case renders all other facts immaterial.” Kourouvacilis v. GM Corp., 410 Mass. 706 , 711 (1991). “[A]lthough that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming.” Id. at 714. Under Mass. R. Civ. P. 56(c), “[s]ummary judgment, when appropriate, may be rendered against the moving party.”

Plaintiff argues that Plaintiff’s Property is entitled to grandfather protection against the frontage requirement of the Bylaw. Relying on that premise, Plaintiff argues that the absence of Polk Street from the Official Map is irrelevant in determining whether Plaintiff’s Property has adequate frontage. Defendants argue that because the Town has adopted the Official Map, Plaintiff’s Property is not entitled to grandfather protection from its lack of frontage, given that Polk Street does not appear on the official map. Further, Defendants argue that, to the extent Plaintiff’s Property enjoyed any protection, that protection was abandoned when the structure that was located on Plaintiff’s Property was destroyed and not rebuilt.

Plaintiff has appealed the portion of the Board’s decision in which it upheld the Building Inspector’s refusal to issue a building permit for Plaintiff’s Property. This court may only disturb the Board’s decision if it is “based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” MacGibbon v. Board of Appeals of Duxbury, 369 Mass. 512 , 515-16 (1976). The Building Inspector based his refusal on the fact that Plaintiff’s Property lacks any frontage because Polk Street is not shown on the Official Map.

The Bylaw provides for a minimum of 125 feet of frontage for lots located in the “Residence 20” district. Section 1.3.8 of the Bylaw defines “frontage” as “[a] continuous line along the sideline of a street.” Section 1.3.12 of the Bylaw defines “street” as

either (1) an improved public way laid out by the [Town], the Middlesex County Commissioners or the Commonwealth of Massachusetts, or (2) a way shown on a plan thereto approved, endorsed and recorded in accordance with the Subdivision Control Law, or (3) a way placed on or made part of the Official Map of the [Town]. . . .

Polk Street is not a “street” as defined by the Bylaw and therefore cannot form the basis of Plaintiff’s frontage. Consequently, Plaintiff’s Property lacks the necessary frontage required to obtain a building permit. Plaintiff, however, argues that Plaintiff’s Property is entitled to grandfather protection and, therefore, Polk Street does not need to appear on the Official Map, or meet the definition of “street,” to provide frontage for Plaintiff’s Property. Plaintiff’s argument hinges on the fact that, prior to the 1977 Bylaw, the Bylaw did not specifically define or qualify the term “frontage.” Plaintiff asserts that this lack of a specific definition means that that Bylaw did not contain any frontage requirement. This court disagrees. Section 10-A of the 1934 Bylaw required that “land laid out after the adoption of the [Bylaw] shall provide for each dwelling a minimum frontage of 100 feet. . .” The lack of an additional “frontage” definition does not undermine the specific frontage requirement set out in Section 10-A.

Plaintiff next argues that he is permitted to use Polk Street for legal frontage because prior to the adoption of the Official Map in 1973, Plaintiff’s Property had been improved by the construction of a dwelling. The record establishes that there was a structure located on Plaintiff’s Property prior to 1973, although that structure lacked water, plumbing, and heat. However, even assuming arguendo, that this structure was a dwelling, that fact would not permit Plaintiff’s Property to satisfy the Bylaw’s frontage requirement by fronting on an unconstructed street not depicted on the Official Map.

As of the adoption of the Official Map on June 25, 1973, residential properties were required to front on a street or way shown on the Official Map. It is possible that Plaintiff’s Property would have been exempt from this requirement due to the fact that it contained an existing structure prior to the adoption of the Official Map. However, it is undisputed that the structure once located on Plaintiff’s Property was destroyed by fire sometime in 1973 and never rebuilt. In order to retain grandfather protection, Plaintiff would have been required to apply for a building permit and commence reconstruction of the structure within two years of its destruction. See Section 6.1.8 of the Bylaw. [Note 6]

Plaintiff argues that the destruction of the structure returned Plaintiff’s Property to the status of a vacant lot and, therefore, rendered the lot conforming under the then-current Bylaw since there was no frontage requirement. This assertion is misplaced. First, as noted above, Plaintiff’s contention that there was no frontage requirement is incorrect. Second, the destruction of a non-conforming structure does not return a property to vacant lot status. See Dial Away Co. v. Zoning Board of Appeals of Auburn, 41 Mass. App. Ct. 165 , 168 (1996) (“[s]uch reconstruction. . .is explicitly governed by the second ‘except’ clause of par. 1 of [G. L. c. 40A,] § 6.”). As a result, any grandfather protection that Plaintiff’s Property may have once enjoyed has been abandoned and Plaintiff’s Property must comply with the frontage requirements of the Bylaw, by fronting on a street or way as defined by the Bylaw unless relief therefrom is granted.

Acknowledging Plaintiff’s situation, the Board granted him relief from the Official Map pursuant to G. L. c. 41, § 81Y, finding that there is a practical difficulty and unnecessary hardship in complying with the requirement that Plaintiff’s Property be located on a way shown on the Official Map. The Town does not take the position that Plaintiff’s Property is unbuildable. Instead, the Board specifically requires Plaintiff to comply with G. L. c. 41, § 81G, which provides for approval from the Planning Board regarding grading, surfacing, and drainage of Polk Street. No appeal was taken from this portion of the Board’s decision, by Plaintiff or by any other interested party; thus, the parties are bound by this decision. In order to obtain a building permit, Plaintiff must obtain Planning Board approval for the construction of Polk Street in accordance with G. L. c. 41, § 81G and actually construct the street in accordance with the approved plans. [Note 7]

Accordingly, and for the reasons set forth herein, Plaintiff’s Motion for Summary Judgment hereby is DENIED, and summary judgment in favor of Defendants hereby is GRANTED. The Board’s decision which upheld the Building Inspector’s refusal to issue a building permit for Plaintiff’s Property hereby is AFFIRMED.

Judgment to issue accordingly.

Karyn F. Scheier

Chief Justice

Dated: February 8, 2011