PLANNING BOARD OF THE TOWN OF NORWELL vs. GEOFFREY MUTHER, JANET MUTHER, and the BOARD OF APPEALS OF THE TOWN OF NORWELL.

The above actions all involve an interpretation of certain sections of the Norwell Zoning By-law and hence were consolidated for trial.

Trial was held in the Land Court on July 21 and 24, 1987 at which a stenographer was appointed to record and transcribe the testimony. Seven witnesses were called and thirty-nine exhibits were entered into evidence. All of the exhibits are incorporated herein for the purpose of any appeals.

I. Muther Lot - Misc. Case Nos. 121777 and 122914

Case No. 121777 is an appeal by the Norwell Planning Board under G.L. c. 40A, §17 from a decision of the Board of Appeals upholding the issuance of a building permit on a certain lot of land on Norwell Avenue shown as Lot 2 ("Muther lot") on a plan entitled "Plan of Land in Norwell, Mass." dated February 19, 1985 ("Plan") (Exhibit No. 11). The issue is the interpretation of certain sections of the Norwell Zoning By-law, principally §§2432, 2441 and 2450.

Case No. 122914 challenges the Planning Board's interpretation of §§2432 and 2450 and in addition seeks a determination that said sections are unconstitutional and invalid as applied to Lot 2 by the Planning Board.

The pertinent sections of the by-law read as follows with the exception of §2450(a) as noted below:

§2432 The minimum lot width measured at the required setback line shall be 150 feet in all districts except Business Districts A and B where the minimum shall be 125 feet.

While there is no definition of "required setback line" in the by-law, the "definition" section contains the following:

SETBACK: Front, Side, Rear: The minimum horizontal distance from a street line or lot line, as the case may be, to any part of a building or structure, excluding overhang three (3) feet or under, bulkheads, or fences.

§2441 Front yard. No building shall be erected, placed or added to so as to extend within the following required front yards:

Measured from:

Front Property Line Way Center Line

Residential A 50 75

Residential B 35 60

Business 50 75

However, no required yard shall exceed the average yards provided on lots abutting on either side, a vacant lot to be considered as if occupied by a building at the minimum front yard setback.

§2450 Lot Shape. No building lot may be created in Residential District A or Residential B unless:

a) the lot has a width of 150 feet at the setback line; and

b) the lot shall contain at least 5,000 square feet of land between the setback line and the way;

c) the area of the lot between the setback line and a line drawn parallel to the setback line, a distance of 100 feet beyond the setback line shall be not less than 11,500 square feet, and

d) no dwelling may be erected or placed unless within a circle 150 feet in diameter inscribed within the lot lines.

Effective December 8, 1986, §2450(a) was amended to read as follows:

a) the lot has a width of at least 150 feet at the required setback line; which required setback line will be 50 feet measured from the front property line in Residential District A, and 35 feet measured from the front property line in Residential District B; or 75 feet measured from the Way centerline in Residential A and 60 feet measured from the Way centerline in Residential B,....

On all of the evidence, I find as follows:

1. Between September 12, 1975 and June 17, 1986, the defendants Muther owned as one lot the property now shown on the Plan as Lots 1 and 2.

2. In 1986, the defendants Muther were divorced. As part of the divorce settlement, the property was divided as is shown on the Plan. This division was made after consultation with various persons presumed by Geoffrey Muther (hereinafter referred to as Muther) to be knowledgeable as to the Norwell Zoning By-law. As shown on the Plan, Lot 2 is of classic "pork chop" configuration, with a "neck" having 80 feet of frontage, then narrowing somewhat and running about 300 feet to an area in which the required 150 foot circle can be inscribed.

3. Muther submitted the Plan to the Planning Board for its endorsement under G.L. c. 41, §81P as "approval not required." After some controversy, the Plan was so endorsed on May 5, 1986.

4. Subsequent thereto, Muther wrote to the Norwell Building Inspector inquiring whether Lot 2 was a "buildable" lot. The inspector replied that in his opinion it was, and on September 25, 1986, Muther applied for and was granted a building permit.

5. A few days thereafter the Planning Board appealed the issuance of the permit to the defendant Board of Appeals. The Board, by a vote of two in favor of denial to one supporting the issuance, denied the appeal.

6. Lot 2 is located in a Residential District A.

It is the position of the Planning Board that the zoning by-law in effect September 25, 1986, required a lot have at least 150 feet in width, 50 feet back from the property line to qualify as "buildable."

This position is evolved from interpreting the phrase, "required setback line" in §2432 to be synonomous with "minimum setback line in the district regardless of the shape of the lot" or words to that effect.

I do not agree with this interpretation and I do not find the language of the disputed sections ambiguous when read in context with the by-law as a whole and when applied to the specific lot in question.

To be buildable, a lot must meet all of the requirements of the zoning by-law and such requirements can only be determined by reading and giving a clear meaning (when possible) to all pertinent sections of the by-law. In this instance, what confusion there may be arises from an interpretation of the "required setback" language of §2432 made by reading §2241 standing alone. Clearly, the phrase must be interpreted by reading both sections, for while §2450 sets up overall requirements, the language of §2241 sets a minimum, not an absolute, requirement.

The only area on Lot 2 upon which a building may be built and meet the requirements of §2450 is within the 150 foot circle shown on the Plan. If the building is so placed, then by definition, the required setback becomes the minimum horizontal distance from the street line to any part of the building or about 300 feet. Thus, in this instance, the width of the lot at the required setback meets the requirements of both §2432 and §2450(a).

I find no support for the Planning Board's position. Section 2241, while purporting to establish a required front yard, actually establishes a minimum front yard.

Accordingly, I rule that Lot 2 as shown on the Plan (Exhibit 11) satisfies the frontage, area, setback and access requirements of the Norwell Zoning By-law and insofar as zoning requirements are concerned, Muther is entitled to a building permit for said lot. The decision of the Board of Appeals upholding the granting of the building permit did not exceed its authority. As to Muther's challenge of the lot width requirement, I find that the lot width requirement is reasonable and is clearly linked to substantive zoning objectives. It is well established that reasonable width requirements substantially relate to public health, safety and welfare.

Accordingly, I find and rule that §§2432 and 2450 of the Norwell Zoning By-law are valid as applied to the aforesaid Lot 2.

II. Serena Lots - Misc. Case No. 122469

Case No. 122469 is an appeal by the Norwell Planning Board under G.L. c. 40A, §17 from a decision of the Board of Appeals ordering the issuance of building permits on two lots of land on Parker Street in Norwell.

Considering the foregoing discussion, the remaining issue as to the Serena lots is whether the pre-amendment or amended by-law applies and the effect of such on these lots.

On all of the evidence, I find as follows:

1. As a result of various conveyances, the ownership of two parcels of land situated on Parker Street in Norwell being shown as Lots B and C on a plan entitled "Plan of Land at Norwell, MA, by Loring H. Jacobs Co." dated August 25, 1986, recorded with Plymouth Deeds in Plan Book 28 at Page 191 ("Plan") (Exhibit 12), on December 4, 1986 was in E. Anthony Serena and Barbara A. Serena, Trustees of Parker Street Realty Trust as to Lot B, and E. Anthony Serena and Barbara A. Serena, husband and wife as tenants by the entirety as to Lot C.

2. The Plan was endorsed under G.L. c. 41, §81P approval not required on September 22, 1986. Said Lots B and C are in a Residential District A.

3. While the lots contain 2.56 acres and 3.62 acres respectively, they are irregular in shape, having eighty feet of frontage on Parker Street, narrowing as they run easterly from Parker Street distances of 400+ and 900+ feet respectively until they broaden into areas which exceed the 150 foot circle requirement of §2450(d) of the by-law.

4. On or about October 7, 1986, Mr. Serena applied to the building inspector for permits to construct a single family residence on both Lots B and C.

5. On or about October 7, 1986, the building inspector denied both applications.

6. Mr. Serena appealed this denial to the Board of Appeals which reversed the denial by the building inspector in a decision dated January 21, 1987.

7. On December 8, 1986, the Town of Norwell amended its zoning by-law so that §2450(a) now reads as follows:

§2450 Lot Shape. No building lot may be created in Residential District A ... unless:

a) the lot has a width of at least 150 feet at the required setback line; which required setback line will be 50 feet measured from the front property line in Residential District A....

8. The declaration of trust of Parker Street Realty Trust contains the following language:

2. The two Trustees, acting together, but only when specifically authorized and directed by the Beneficiaries, shall have full power and authority to assign, transfer, sell, mortgage or otherwise dispose of all or any part of the trust property or any interest therein, to accept conveyances....

9. In December of 1986, the only beneficiaries of the trust were E. Anthony Serena and Barbara A. Serena, the Trustees.

The first section of the fourth paragraph of G.L. c. 40A, §6 reads:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single or 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 their existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.

Whether the arrangement whereby the Serenas are trustees for themselves is a trust, agency or constitutes anything other than outright ownership is in question, Penta v. Concord Auto Auction, Inc., 24 Mass. App. Ct. 635 (1987), but in any event it is clear that as of December 8, 1986, they had control of both Lots B and C and could use them as one if they so chose. For zoning purposes they must be considered as one lot and accordingly, they do not meet the exemption requirements of c. 40A, §6, as to individual lots. Sorrenti v. Board of Appeals of Wellesley, 345 Mass. 348 (1963). Considering Lots B and C as one lot, however, the exemption of § 6 does apply to the combined lots.

I find and rule that the provisions of the March 12, 1985 pre-amendment zoning by-law (Exhibit 3) applies to Lots B and C combined and the Serenas are entitled to one building permit for the combined lots. The decision of the Board of Appeals dated January 21, 1987 exceeded its authority insofar as it reversed the denial of the building inspector to issue permits for each lot, and accordingly, is annulled.

The parties have made various requests for findings of fact and rulings of law. I have not attempted to rule on each of said requests since I have made my own findings on the questions of fact which I deem material and on the law which I believe applicable.

Judgment accordingly.