LOUISE MACNEIL vs. TOWN OF AVON, COMMONWEALTH OF MASSACHUSETTS.

The plaintiff, Louise MacNeil, of Avon in the County of Norfolk, acquired title in 1975 to an inverted "L" shaped parcel of land on Highland Street in said Avon from Robert F. Cunha and wife by deed dated October 2, 1975 and recorded with Norfolk Deeds, Book 5166, Page 745 (Exhibit C to the Complaint). Said parcel has an area of approximately 3.3 acres, or about 137,000 square feet, and a frontage of 190 feet on Highland Street.

The Avon Zoning By-law was revised in 1977, doubtless in anticipation of the effective date of St. 1975, Chapter 808. As now in effect, the by-law provides that in a Residence A District in which the locus is situated, the minimum lot size is 25,000 square feet and the minimum lot frontage is 150 feet. Permitted uses as of right include a detached single family dwelling, one two-family or one duplex dwelling, a place of worship, a non-profit school, library or museum, and other like facilities, a governmental recreational facility and certain farms. With a special permit from the Planning Board a building or buildings intended to be used for three or more dwelling units may be constructed pursuant to Section 7-5 of the by-law provided the following conditions are met with respect to any particular parcel of land (Exhibit No. 1, pages 28-29):

1. The lot shall have not less than two hundred feet of frontage and shall contain not less than forty thousand square feet of land.

(Paragraphs 2 to 4 of Section 7-5A setting forth additional conditions are omitted as not relevant.)

The plaintiff petitioned the Board of Appeals of the defendant town for a variance from the frontage requirements applicable to a special permit for multiple dwelling units, and the variance was denied. An appeal to the Superior Court Department was taken and is still pending. In the present proceeding brought pursuant to G. L. c. 231A, c. 240, §14A and c. 185, §1 (j 1/2), the plaintiff attacks the constitutionality of frontage requirements for a special permit as applied to the peculiar configuration of her land. The pendency of the Superior Court appeal is not a bar to this case. Sisters of the Holy Cross of Massachusetts v. Brookline, 347 Mass. 486 , 494-95 (1964).

A trial was held at the Land Court on October 24, 1979 at which a stenographer was appointed to record the testimony. All exhibits introduced in evidence are incorporated herein for the purpose of any appeal.

The plaintiff argues that she presently is using only 25,000 square feet of land for the existing buildings, that the frontage requirement bars her from using the remainder of her lot, that the cost of constructing a road for a subdivision of the land would be prohibitive in the light of the projected proceeds of the sale of four building lots, and that the minimum frontage requirement bears no reasonable relation to the public health, welfare, or safety and amounts to a taking of the plaintiff's property without compensation. [Note 1]

There is no merit to the plaintiff's contentions. She fails to recognize that this case stands on a different footing from those which consider minimum lot and frontage requirements in a particular zoning district as in Simon v. Needham, 311 Mass. 560 (1942); Aronson v. Sharon, 346 Mass. 598 (1964) and Wilson v. Sherborn, 3 Mass. App. Ct. 237 (1975). The Avon Zoning By-law, as attacked by the plaintiff, concerns the requirements which a particular lot must have in order that the Planning Board issue a special permit for multi-dwelling units. Even if the plaintiff's parcel had the frontage required by the by-law and the other conditions spelled out therein and not in issue here were met, the plaintiff is not entitled to a special permit as a matter of right. This issuance is discretionary with the Planning Board whose decision cannot be disturbed "unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). See McDonald's Corp. v. Board of Selectmen of Randolph, Mass. App. (1980). [Note 2] This aspect of the case might well defeat the plaintiff's complaint at this stage, but for purposes of this decision only we assume that the plaintiff would be entitled to a special permit if she had the required frontage and treat the matter as involving the constitutionality of the minimum frontage requirement for multi-dwelling use as applied to the plaintiff's parcel. Expressed differently, the discretionary element of the special permit has been eliminated for purposes of this review.

This appears to be a case of first impression in Massachusetts. There have been previous decisions where minimum standards were attacked, but the emphasis by the courts and the parties in these instances were focused on the constitutionality of minimum area and frontage requirements considered together, and the latter were not separately addressed. It is worth noting, however, that like minimum frontage (i.e., 200 feet) was concerned in at least one of the previous Massachusetts cases. It also should be pointed out that contrary to the plaintiff's arguments, it is common for minimum frontage to increase as the minimum lot size does. [Note 3]

In the most recent case in which the problem of minimum area requirements was concerned, Justice Goodman stated "Parameters for our determiation are Simon v. Needham, 311 Mass. 560 (1942), and Aronson v. Sharon, 346 Mass. 598 (1964)." Wilson v. Sherborn, supra at 238. As Wilson makes clear, one acre zoning presumably is valid and a minimum lot size of 100,000 sqare feet requires justification by its proponents. A similar analysis may well be followed in the future so far as minimum frontage is concerned, but it appears that a more likely appellate approach would be to follow the rule customarily applied where an unhappy landowner confronts the impact on his property of a zoning by-law.

Every presumption is to be made in favor of a zoning by-law and the plaintiff bears a burden of proof beyond a reasonable doubt that it is unconstitutional. Aronson v. Sharon, supra at 602; see Crall v. Leominster, 362 Mass. 95 , 101-02 (1972); Van Sant v. Building Inspector of Dennis, 352 Mass. 289 , 292 (1967). The validity of a by-law as applied to a particular parcel of land "is to be determined by the location, size and characteristics of the land, the nature and use of adjoining land and other land in the general vicinity ...." Barney & Carey Co. v. Milton, 324 Mass. 440 , 449 (1949). The restrictions on a landowner's piece of property must be weighed against the benefits to the general public. Turnpike Realty Co. v. Dedham, 362 Mass. 221 , 235 (1972). If the by-law as applied to a particular parcel has no real or substantial relation to the public welfare and results in substantial injury to the owner of the parcel, then it cannot be so applied. Aronson v. Sharon, supra at 603; Jenckes v. Bldg. Comm'r of Brookline, 341 Mass. 162 , 166 (1960); Pittsfield v. Oleksak, 313 Mass. 553 , 555 (1943); Maider v. Dover, 1 Mass. App. Ct. 683 , 688 (1974).

The plaintiff seems convinced that the test here is similar to that for determining damages in an eminent domain case. Conversely, it is well settled that "[t]he fact that he may not be able to put his land to its most profitable use is not sufficient reason to invalidate the zoning by-law." Maider v. Dover, supra at 688.

A by-law will not be considered confiscatory unless the land is unusable for any reasonable purpose. Wilson v. Sherborn, supra at 245. Patently that is not the case here. As Turnpike Realty illustrates, a by-law may constitutionally bar use of the major portion of a litigant's land under appropriate circumstances.

The plaintiff argues that a ten foot difference in permitted frontage and in that of her lot is insignificant. The short answer is that the line must be drawn somewhere, and the appropriate place is for the voters of Avon, not this Court. Caires v. Building Commissioner of Hingham, 323 Mass. 589 , 594-95 (1949). "A by-law will not be held void merely because judges differ from the town meeting on matters of expediency." Tracy v. Board of Appeals of Marblehead, 339 Mass. 205 , 208 (1959). Evidence at the trial established that there are percolation problems in Avon, and the town lacks any sewerage or water system. While this tends to bear on minimum lot size rather than frontage, the two are largely intertwined, see Wilson v. Sherborn, supra at 237-38. Moreover, Howland v. Acting Supt. of Bldgs. et al., 328 Mass. 155 , 160 (1951) establishes that the requirement of a certain amount of frontage is within the Enabling Act, because it tends to lessen the dangers of fire and to provide access to the property for fire and police protection.

The facts here are clearly distinguishable from those in the leading case of Barney & Carey Co. v. Milton, supra.

On all the evidence I find and rule that the plaintiff is the owner of a parcel of land in said Avon situated on Highland Street, that said parcel contains about 137,000 square feet and has a frontage of 190 square feet, that there presently are a house and barn located thereon, that the plaintiff's land is L-shaped, and much of it is vacant land, that the Avon zoning by-law requires a frontage of 200 feet as a condition precedent to the issuance of a special permit for multiple dwelling units, that the Town cites lack of public water and sewer systems and percolation difficulties as reasons for the frontage requirements, that a minimum lot frontage may tend to serve several aims designed to better the public good, that the minimum of 200 feet is not unusually large, that there are several permitted uses of properties located in a Residence A District as is the plaintiff's, that there is no constitutional requirement that a landowner be able to devote each square foot of his property to some use, that she is not necessarily entitled to make the most profitable use thereof, and that the minimum frontage requirement of 200 feet for a special permit for building of multiple units, as applied to the plaintiff's land, is valid.

The plaintiff has submitted "requested findings of fact and conclusions of law" for the Court's consideration. The Court grants requested findings of fact IA, C and D, denies IG and declines to rule on IB, E and F, there being insufficient evidence thereon. The Court grants rulings of law II C and P, declines to rule on II Q and denies the remaining requests.

Judgment accordingly.