Home LAWRENCE E. HYDE and LINDA J. HYDE vs. PLANNING BOARD OF THE TOWN OF DOVER, TOWN OF DOVER, JOHN T. DONOGHUE, THOMAS F. CROWLEY, W. HERBERT GREEN, RICHARD H. VARA and JOHN G. BRIGGS, individually and as they are the members of the Planning Board of the Town of Dover.

MISC 123386

January 29, 1988

Norfolk, ss.



On May 13, 1987, the plaintiffs filed their complaint in this matter pursuant to G.L. c. 41, §81BB appealing the refusal of the Planning Board of the Town of Dover ("Board") to endorse a plan duly submitted by the plaintiffs pursuant to G.L. c. 41, §81P. The plaintiffs also seek a determination of the validity of §5.3.4 of the Dover Zoning By-law ("by-law") pursuant to G.L. c. 240, §14A.

This cause came on to be heard on December 3, 1987 on cross motions for summary judgment. Arguments of counsel, affidavits and pleadings have been considered. I rule that there is no genuine issue of material fact, and therefore, the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P.; Community National Bank v. Dawes, 369 Mass. 550 (1976); Cassesso v. Commissioner of Correction, 390 Mass. 419 (1983).

The issues in this matter involve an interpretation of §§5.3.3 and 5.3.4 of the by-law and a determination of the validity of said sections.

I find the following facts pertinent and undisputed:

1. The plaintiffs are the owners of a parcel of land in Dover as shown on a plan entitled "Plan of Land in Dover, Mass." by Cheney Engineering Co., Inc., dated April 15, 1987 ("Plan"). The plaintiffs live on this land.

2. The Plan proposes to divide the plaintiffs' land into two parcels, Lot 3C, containing 9.176 acres with 73.75 feet of frontage on Tubwreck Drive, a public way and Lot 3D, containing 2.158 acres with 40.24 feet of frontage on Tubwreck Drive. After the division, the plaintiffs' dwelling will be on Lot 3C.

3. On April 15, 1987 the plaintiffs filed a "Form A" application with the Board seeking an endorsement of the plan under G.L. c. 41, §81P "Approval under the Subdivision Control Law Not Required."

4. The Board denied this application April 23, 1987, and notice of their decision was filed with the Town Clerk April 24, 1987.

5. The term "subdivision" is defined in G.L. c. 41, §81L as follows:

"Subdivision" shall mean the division of a tract of land into two or more lots ... provided, however, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision ... if ... every lot within the tract so divided has frontage on (a) a public way ... such frontage shall be of at least such distance as is then required by zoning ... by-law ... if no distance is so required, such frontage shall be at least twenty feet....

6. The plaintiffs' property fronting on Tubwreck Drive is located in the R-2 zoning district. Section 5.2 of the by-law requires lots in the R-2 district to have frontage of 200 feet.

In arguing for this §81P endorsement, the plaintiffs rely upon §5.3.3 which states:

5.3 Special Requirements

5.3.3 Street Frontage Exception

A lot shall be deemed to have the required street frontage under Schedule 5.2 if:

(1) ...

(2) It has either:

(a) frontage of at least 100 feet on: ...

Any lot approved by the Planning Board before May 1, 1987 or any lot shown as a separate lot on a deed or a plan duly recorded in the Registry of Deeds before May 1, 1987 shall only require a minimum frontage of at least 40 feet under alternative (2)(a) above, and after May 1, 1987 any such lot shall be deemed to have the frontage required under alternative (2)(a) if it has at least 40 feet of frontage and. is otherwise in compliance with this bylaw.

In interpreting any section of a by-law, that section must be read in context with the by-law as a whole. The section or sections must be interpreted so as to give meaning to all sections and so that no one section shall be meaningless; School Committee of Brockton v Teachers' Retirement Board, 393 Mass. 256 , 262 (1981).

Section 5.3.4 provides:

Section 5.3.4 Division of Land

No lot on which a dwelling is now situated or hereafter placed shall be divided or reduced in area if such lot ... is thereby rendered smaller in area than required under Section 5.2 and no such lot shall be divided or reduced in area so as to reduce any setback from a street ... or reduce any street frontage if after such reduction such dimensions will be less than those required under Section 5.2....

To read §5.3.3 as urged by the plaintiffs would render the frontage requirements of §5.3.4 meaningless. The express language of §5.3.3 clearly requires that along with the required 40 foot frontage the proposed lot be "otherwise in compliance with this by-law."

Section 5.3.3 is further modified by §5.3.4 for those situations where a dwelling is situated on the lot to be divided. It would also apply to a lot of land with or without a dwelling where the plan does not seek to divide the lot.

I find §5.3.4, which establishes certain frontage requirements, meets statutory and well accepted purposes of G.L. c. 40A. Moreover, such requirements are specifically referred to in §81L as quoted above.

Accordingly, the defendants' motion for summary judgment is allowed, and the plaintiffs' motion for summary judgment is denied; and it is

ADJUDGED and ORDERED that the decision of the defendant Planning Board of the Town of Dover dated April 23, 1987 did not exceed its authority and accordingly is sustained; and it is further

ADJUDGED and ORDERED that Section 5.3.4 of the Dover Zoning By-law is valid insofar as it pertains to the plaintiffs' property.

By the Court