This is an appeal under G.L. c. 41, §81BB from a decision of the Defendant, Planning Board of the City of Marlborough ("Board") , denying the Plaintiffs' proposed definitive subdivision plan ("Plan") for a subdivision of about forty acres of land in Marlborough. The Board, in a letter to the Marlborough City Clerk, assigns five reasons for its denial. The Plaintiffs' complaint addresses each of these reasons together with two general counts alleging in substance that the Plan complied with the rules and regulations of the Board and that the decision did not state in detail the Board's reason for denial.
This matter was heard on August 8, 1989 on the Plaintiffs' motion for summary judgment on all counts of the complaint.
After conferring with counsel, considering arguments of counsel and reviewing the pleadings, memoranda, affidavits and pertinent documents, I find and rule that as to Counts I and II, the "general counts" so called, there are genuine issues of material fact and as to these counts the motion is denied.
Counts IV and V deal with the location and nature of the Plaintiffs' proposed "open space" areas and a lack of information pertaining to a proposed "two phase" development of the subdivision, based on the representation of counsel that such items may probably be resolved by the parties. The Plaintiffs' proposal as to Counts IV and V are remanded to the Board for further hearings and consideration of such amended plans and proposals as may be filed with the Board by the Plaintiffs.
Upon representation of counsel that the Plaintiffs will provide necessary services for the subdivision, including reasonable costs of upgrading a municipal pumping station, the Plaintiffs' motion as to Counts VI and VII is allowed.
The remaining issue to be decided herein is whether or not the Board properly interpreted the Zoning Ordinance ("Ordinance"), also
known as Ch. 200 of the Code of the City of Marlborough ("Code"), in its finding that the lots proposed in the subdivision were in violation of the Ordinance. As to this issue there appears to be no issue of material fact and accordingly, as to this issue, the case is ripe for summary judgment.
The pertinent sections of the Ordinance are as follows:
Art. III, § 3 ( § 200-4B Code). For the purposes of this chapter, certain terms and words are defined as follows:
LOT DEPTH - The "lot depth" shall be measured perpendicular to and at every point in the frontage required. In residence districts, the minimum "lot depth" shall be three-fourths (3/4) of the frontage required. . . . ("3/4 rule").
2. Art. VI, § 2 (§ 200-21 Code). For the purposes of this chapter, all principal buildings may be built on any lot located in a district in which the building is permitted, provided that: . . .
F. Any increase in the area, frontage, width, yard or depth requirements of this chapter . . . ['chapter' refers to the ordinance in its entirety].
This section also contains a "Table of Lot Area, Yards and Heights of Structures" ("Table"). The Table provides for minimums of lot area, frontage, side yard, front yard and rear yard; it does not contain a depth requirement.
The zoning regulations, as published and distributed on request by the City, contain both the Ordinance and the Code. Should one refer to LOT DEPTH in the non-codified version (Art. III, §3(r)), one is further referred, by handwritten insert, to a 1983 opinion letter of the Assistant City Solicitor addressed to the Building Inspector which states that Art. III, §3(r) "appears to be an attempt at regulation; but by being placed with Article III under the heading of Definition, has no regulatory effect." The quoted language of subparagraph (r) appears to be the only "regulating" language as opposed to definitive language in Art. III, §3 or §200-4 B. The Code does not contain reference to this letter. In any event, I do not find the letter to be binding upon the Board, which in this instance is the entity charged with interpreting the Ordinance.
It is undisputed that at the time of filing their Plan, the Plaintiffs were informed of the "Lot Depth Requirement" as interpreted by the Board.
It is well-established that the words of a by-law or ordinance are not to be considered superfluous or repetitive, and if possible, are to be given their plain meaning. It is probably as well-established, at least any persons dealing with a variety of zoning ordinances and by-laws, that such regulations sometimes lack the precision and order we have come to expect from more formal legislative bodies. The "3/4 rule" most certainly would be better placed in Art. VI, §2A or in §200-21 rather than Art. III, §3 or §200-4 B. While such syntax may raise questions, I do not find the language to be of sufficient ambiguity to be rendered meaningless. Whatever questions it raised could be readily resolved prior to drafting the subdivision plan. Furthermore, Art. IV, §2 (§200-21) requires that any building be built on a "lot". Should the "3/4 requirement" be interpreted as definitive rather than regulatory, the result is the same, i.e., if the lot does not comply with the "3/4 requirement", it is not by definition a building lot.
Accordingly, I find that the Ordinance requires all lots in a residential zone to have a depth of at least 3/4 the required frontage. Summary Judgment is granted to the Defendants on Count III.
By the Court
GERALD I. BERN and NORMAN G. GEAR vs. PLANNING BOARD OF THE CITY OF MARLBOROUGH and PAUL J. PRIESTLEY, PETER CHASE, NATALIE TOWLE, RICHARD CORRINNE, JOHN KELLY, WILLIAM McGRATH, JR. and JAY ROBERT WHITTAKER, as members of the PLANNING BOARD OF THE CITY OF MARLBOROUGH.