The plaintiff, Catherine Galenius, is the owner of a home at 11 Edge Hill Road in Saugus, in the County of Essex, which abuts the property of the defendants, Robert Gearin and Anne Hartman Gearin, at 13 Edge Hill Road in said Saugus. The defendant Building Inspector of the Town of Saugus issued to the defendants Gearin a foundation permit for the initial step in the construction of a home on the land at 13 Edge Hill Road, and the plaintiff seasonably appealed to the Board of Appeals. The plaintiff's petition failed to receive the necessary four affirmative votes to rescind the foundation permit, the vote being three in favor and two opposed. The plaintiff thereafter appealed to this Court pursuant to the provisions of G.L. c. 40A, §17.
The matter is now before the Court on a motion for summary judgment filed by the defendants Gearin in which town counsel concurred. Arguments were heard on the motion on May 19, 1988, and briefs have been filed with the Court as well. The Court also has relied on affidavits filed by the parties, title documents and the provisions from time to time of the Saugus Zoning By-Law. Upon consideration, it appearing to the Court that there are no factual issues in dispute and that the Building Inspector was correct in issuing the foundation permit, the plaintiff's appeal is denied, and judgment is to enter for the defendants.
The relevant facts which are not controverted are as follows:
1. The locus is registered land. The defendants Gearin are the registered owners named in and are the present holders of Certificate of Title No. 53766 dated August 9, 1984 as issued by the Essex South Registry District of the Land Court; the certificate describes by metes and bounds a parcel of land situated on Edge Hill Road which measures 50 feet by 115 feet. The certificate further describes the locus as being Lots 80 and 81 on Land Court Subdivision Plan No. 8400-D, sheet 2.
2. The locus has been similarly described from the first conveyance out by Loomis D. Griswold, Trustee of the L.D. Griswold Land Co., to Ella M. Redmond by deed dated July 2, 1925 and registered with said Registry District as Document No. 13457. The certificate of title issued to Mrs. Redmond bore the same description in essence as that of the current registered owners.
3. At the time of the Redmond purchase, Saugus had not adopted a zoning by-law. In 1928 this omission was rectified with the adoption of the town's first zoning by-law which required a minimum lot size of 5,000 square feet for a one-family house and had no minimum frontage requirements. The requirements have been subsequently increased over the years from 5,000 square feet to 7,500 square feet with a minimum frontage of 75 feet in 1949, to 10,000 square feet with a minimum frontage of 100 feet in 1957, to the present area requirements of 20,000 square feet with the same minimum frontage of 100 feet.
4. On May 2, 1960, the adjourned session of the March 21, 1960 annual town meeting adopted Article 70 which reads as follows:
Voted: to amend Section 10 of the Zoning By-Law as amended March 21, 1949, by striking out the following paragraph: "Lots duly recorded by plan or deed at the time this By-Law is adopted may be used, provided that all requirements in regard to yards are fulfilled" and inserting in place thereof, the following:
"Lots duly recorded by plan or deed at the time this By-Law is adopted may be used, provided the total area of said lots is at least 5,000 sq. ft., and the total frontage is at least (50) ft., and further provided the owner of said lots does not own land on either side.
When the total area of a series of adjoining lots duly recorded by plan or deed, at the time this By-Law is adopted, and held under one ownership, at least equals the area requirements of the Zoning By-Law for the district, that series of adjoining lots shall be considered as one lot for any purpose under the Zoning By-Law".
5. During the early years, the Redmonds lived in a small house situated on the locus, the foundation of which was still visible until recently. Ultimately, they were unable to pay the real estate taxes, and the Town of Saugus took the premises for the non-payment of taxes and foreclosed the taxpayer's right of redemption. The neighbors felt that the Saugus Zoning By-Law, the defendants may build upon their undersized lot which now is vacant land and has been vacant land for approximately 17 years, or whether the previous existence of a small bungalow on locus prohibits the use thereof, at least without a variance. The plaintiff argues for the latter position on two separate grounds. She first contends that the locus is two separate lots and thus does not meet the statutory minimum. Secondly, she argues that there having been a building once situated on locus, it can no longer be considered vacant land and that the failure to reconstruct the previous building within the two-year period after its abandonment or discontinuance as a non-conforming structure, now bars the Gearins from building on the locus without relief from the Zoning Board of Appeals. The defendants, conversely, argue that the two lots must be considered as one for zoning purposes, that the land now is vacant and that c. 40A, §6, par. 4 overrides any other provisions relative to non-conforming use.
The first part of the plaintiff's argument is not persuasive. The Massachusetts decisions make it clear that in a zoning context several adjoining lots are to be considered as one parcel in applying the statutory requirements. See Lindsay v. Board of Appeal of Milton, 362 Mass. 126 (1972) and Vassalotti v. Zoning Board of Appeals of Sudbury, 348 Mass. 658 (1965). It now appears settled that the relevant portion of the General Laws, i.e., G.L. c. 40A, §6, par. 4, 1st sentence, applies to the deed or plan last recorded prior to the zoning change which rendered the lot nonconforming. Sieber v. Zoning Board of Appeals of Wellfleet, 16 Mass. App. Ct. 985 (1983); Adamowicz v. Ipswich, 395 Mass. 757 , 762 (1985). I have vacant building posed a fire threat, and accordingly, the Town tore down the building in about 1970 or 1971.
6. Although the instruments from the Registry District evidencing the tax taking, its foreclosure and the deed out by the Town, are not before me, there is no dispute that the Town sold the locus to Paul B. Jones on April 18, 1975, the Town having appeared on the assessors' records as the owner from June 3, 1970. As set forth above, the defendants Gearin acquired title in 1984.
7. The present Saugus Zoning By-Law (the copy before the Court being dated April 1, 1986) was adopted pursuant to the provisions of G.L. St. 1975 c. 808. In Article IX thereof, there is provision in Section 9.2 for the extension or alteration of pre-existing non-conforming structures or uses with a special permit from the Board of Appeals. In Section 9.3 there appears the following provision:
SECTION 9.3 - Residential Lot of Record. Any increase in area, frontage, width, yard, or depth requirements of this 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 then existing requirements and had less than the proposed requirements but at least five thousand (5,000) square feet of area and fifty feet of frontage.
When the total area and frontage of a series of adjoining lots fronting on the same Public way or Private way duly recorded prior to July 1, 1978, and held in common ownership, at least equals the area and frontage requirements of this By-Law, that series of lots shall be considered as one lot.
The controversy between the parties centers on the question as to whether, pursuant to the provisions of G.L. c. 40A, §6 and those of the recently held that several adjoining lots, although separately owned when rendered non-conforming, must be considered as one in a present determination as to whether the landowner now has one lot with the minimum statutory dimensional requirements. T.J.T. Realty Co., Inc. v. Benoit, et al, Land Court Misc. Case No. 122654 (May 9, 1988). In the present action it is clear that from 1925 to date the defendants Gearin and their predecessors in title owned, for zoning purposes, a single parcel of land meeting the statutory minimum requirements even though such parcel was comprised of two small lots never separately described in the Land Court Crrtificates of Title.
The present wording of the "grandfather" clause in c. 40A, §6 refers to a lot which "conformed to then existing requirements". It is unclear as to the time frame when the then-existing requirements are determined. It would seem, from the foregoing cases, that the determination as to common ownership is to be made at the time of the deed or plan last recorded immediately prior to the increase in the dimensional provisions of the zoning ordinance or by-law. However, the application of this rule to the then-existing conformity requirement, hardly seems a practical result in light of the minimums set forth in the statute. We do not reach that question in this decision, however, for it appears that the lot in question was conforming at the time of the adoption of the first zoning by-law in 1928 and thereafter, as appears from the 1960 amendment, enjoyed a "grandfathered" status. See Sieber, supra. I accordingly find and rule that, insofar as the plaintiff's first objection is concerned, i.e., that the locus consists of more than one lot and does not meet the test of §6, the argument must fail.
However, the plaintiff also has an interesting argument that the locus does not fall within the "grandfather" protection provided by par. 4 of §6, but rather falls within the first paragraph of the section since there formerly was a building on the locus which was torn down by the prior owner, the Town of Saugus. It is clear that under the predecessor statute G.L. c. 40A, §5A, the "grandfather" clause applied only to vacant land. We need not decide whether that is still true since the locus indeed is now vacant land and was vacant land when title was conveyed to the defendants Gearin. Under the prior law there was a problem with reconstruction of a non-conforming structure if it were intentionally razed, Angus v. Miller, 5 Mass. App. Ct. 470 , 473 (1977), although the result was different if the property was accidentally destroyed whether through fire or through the type of misfortune illustrated by the facts of Lomelis v. Board of Appeals of Marblehead, 17 Mass. App. Ct. 962 (1983). The courts have said that the purpose of §6 is to protect once-valid residential lots, as in the case of Adamowicz, 395 Mass. at 763 citing Sturges v. Chilmark, 380 Mass. 246 , 261 (1980). Since §6, as it now is framed, excepts only those lots which meet certain specified categories and does not refer to the existence or nonexistence of a building, its policy would best be served by holding it applicable to any lot meeting these statutory requirements. In Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 , 18 (1987) the Appeals Court stated that the immediate predecessor statute of §6, that is §5A, applied to original construction on vacant lots but not to alterations of existing structures. I do not so read §6, at least as to lots vacant at the time permission to build is sought. I therefore find and rule that if a lot is vacant and it otherwise meets the criteria set forth in the enabling act, it is "grandfathered" and may be built upon. It follows that the decisions of the Building Inspector and of the Board of Appeals were proper, and therefore the plaintiff's appeal is denied.
Section 5A as it appeared in the predecessor c. 40A is set forth in the appendix hereto.
By the Court
§ 5A. Certain Lots Exempt From Application of Certain Zoning Ordinances or By-Laws.
Any lot lawfully laid out by plan or deed duly recorded, as defined in section eighty-one L of chapter forty-one, or any lot shown on a plan endorsed with the words "approval under the subdivision control law not required" or words of similar import, pursuant to section eighty-one P of chapter forty-one, which complies at the time of such recording or such endorsement, whichever is earlier, with the minimum area, frontage, width, and depth requirements, if any, of any zoning ordinance or by-law in effect in the city or town where the land is situated, notwithstanding the adoption or amendment of provisions of a zoning ordinance or by-law in such city or town imposing minimum area, frontage, width, depth, or yard requirements, or more than one such requirement, in excess of those in effect at the time of such recording or endorsement ( 1) may thereafter be built upon for residential use if, at the time of the adoption of such requirements or increased requirements, or while building on such lot was otherwise Permitted, whichever occurs later, "such lot was held in ownership separate from that of adjoining land located in the same residential district, or (2) may be built upon for residential use for a period of five years from the date of such recording or such endorsement, whichever is earlier, if, at the time of the adoption of such requirements or increased requirements, such lot was held in common ownership with that of adjoining land located in the same residential district; and further provided, in either instance, at the time of building (a) such lot has an area of five thousand square feet or more and a frontage of fifty feet or more, is in a district zoned for residential use, and conforms except as to area, frontage, width, and depth and the applicable provisions of the zoning ordinance or by-law in effect in such city or town and (b) any proposed structure is to be located on such lot so as to conform with the minimum requirements of front, side, and rear yard setbacks, if any, in effect at the time of such recording or such endorsement, whichever is earlier, and to all other requirements for such structure in effect at the time of building.
The provisions of this section shall not be construed to prohibit a lot being built upon, if at the time of building, building upon such lot is not prohibited by the zoning ordinances or by-laws in effect in such city or town. (1958, 492; 1960, 789, § l; 1961, 435, § 1.)