MISC 124610

February 11, 1988

Plymouth, ss.



The complaint in this matter was filed by the plaintiff, James Gesner, d/b/a Copperwood Development, on September 8, 1987 pursuant to G.L. c. 40A, §17, appealing an order of the defendant Board of Appeals of the City of Brockton ("Board") dated August 18, 1987 duly filed with the City Clerk, denying the plaintiff's application under Articles IV Sec. 27-25, 3.e; V Sec. 27-38; and VII Sec. 27-48 of the Zoning Ordinance for a special permit for the development of a planned residential group development.

This cause came on to be heard on December 11, 1987 on the plaintiff's motion for summary judgment. After considering arguments of counsel, the filed stipulation of facts and the exhibits thereto along with the pleadings, 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).

The plaintiff proposes to develop a planned residential group development consisting of forty-eight single family dwellings together with open space and recreational areas, including an existing golf course on forty-two acres of land located for the most part in an R-1B zoning district within the City of Brockton. This development will be under condominium ownership in which individual units will be privately owned, however, the underlying land will be owned in common. Twelve acres of the parcel are located in the Town of West Bridgewater.

The parties have stipulated to sufficient findings of facts necessary for the issuance of a special permit as applied for. The defendant, however, maintains that notwithstanding the stipulation, the zoning ordinance, as a matter of law, prevents the granting of the special permit.

It does not.

Section 27-38i of the zoning ordinance provides for a planned residential group development which is what the plaintiff proposes. This use meets the requirements of a planned unit development as set out in G.L. c. 40A, §9. The statute requires that the use be a mixture of residential, open space, commercial, industrial or other uses. While these uses must be mixed, all of the aforementioned uses need not be included. The statute further permits the Board, upon making the appropriate findings, to depart from the normal requirements of the district to the extent authorized by the ordinance. The plaintiff proposes residential, open space, and recreational or commercial use thereby complying with the mixed use requirement.

The defendants question the plaintiff's use of land in West Bridgewater to meet overall density requirements and the use of attached dwellings on a single lot. I have found that the plaintiff's proposal is a "planned unit development" as authorized by both the statute and ordinance. The language in subsections 2 and 3 of said section 27-38i of the ordinance reads, "All the standards of the residential zone in which the tract is located must be complied with except that ... yard requirements need only be applied in relationship to the tract boundaries" and "More than one building is permitted in tracts or lots held by one owner or in common ownership." This language specifically authorizes the construction of more than one building on the plaintiff's lot which will be held in common ownership.

While it may be somewhat unusual for a lot to straddle a municipal boundary, it is certainly not unique. It is well established that lot lines need not coincide with municipal boundary or zoning district lines; Tambone v. Board of Appeal of Stoneham, 348 Mass. 359 (1965) and that the portion of such lot in one town may be used to satisfy density requirements of the other. An added burden to the owner of such land, (which does not here appear to be material), is that such land is subject to the second town's zoning by-law; Brookline v. Co-Ray Realty Co., Inc., 326 Mass. 206 (1950).

The defendants have raised the question of planning board jurisdiction over the private access driveway on the site plan. The ordinance does not appear to require planning board approval and, in any event, as the plaintiff has agreed to build the access to planning board standards, such objection is moot.

The defendants' remaining concern is that the pre-existing nonconforming use of the "golf course" property will continue even though its area will be used for density consideration. There is nothing improper in such use. A planned unit development requires mixed uses, and while such use must be legal, a nonconforming use is as legal as one specifically permitted. Moreover, there is nothing in the ordinance which precludes the golf course from continuing in operation and also being used for density consideration.

In consideration of the foregoing, I find that the defendant Board of Appeals exceeded its authority in denying the plaintiff's application for special permit and the plaintiff's motion for summary judgment is allowed; and it is

ADJUDGED and ORDERED that the decision of the defendant Board of Appeals of the City of Brockton dated August 18, 1987 exceeded its authority and is hereby annulled; and it is further

ADJUDGED and ORDERED that this matter is remanded to the Board of Appeals for further hearings, if necessary, and a decision in accordance with the findings of this order.

By the Court.