These two cases both constitute appeals from decisions of the Board of Appeals of the Town of Marblehead, pursuant to G.L. c. 40A, §17; each complaint also has a count also sounding in G.L. c. 240, §14A and c. 185, §1 (j 1/2) for a declaration of the rights of the plaintiffs as affected by the zoning by-law of said Town. Each case involves an interpretation of the provisions of Section V.2B which, prior to the amendment hereafter referred to, read as follows:
V.2B A lot may not be so reduced as to fail to satisfy any minimum dimension, area or yard required for a permitted principal use
Notwithstanding the area and frontage requirements hereof, a single detached one-family dwelling or lawful building other than a dwelling may be constructed and used on a lot having less than the prescribed basic minimum area and/or minimum frontage (provided that all other regulations of this By-Law are complied with) if said lot prior to the date of the adoption of the requirements in question:
a. was lawfully laid out by plan or deed duly recorded in the Essex South Registry of Deeds (or registered in the Essex South District of the Land Court) (or)
b. was otherwise exempted from such requirements by the provisions of statute, and further provided that such lot conformed to the area and frontage requirements of the Zoning By-Law applicable at the time of said recording or approval, and further provided that such lot at the time of application for a building permit, shall not be less than 5,000 square feet in area. Any lot which was held in common ownership with any adjoining land at the time of recording of any plan or deed referred to in Section V-2B (a) shall be subject to the area or dimensional requirements of this By-Law, except to the extent provided by Massachusetts General Laws, Chapter 40A, Section 6.
The ambiguous nature of the By-Law provision has led to inconsistent results in the issuance of building permits or decisions of the Board of Appeals, and accordingly, the Planning Board instituted proceedings to amend the language of the By-Law. The Board caused notices to be published in the Lynn Item on December 17, 1987 and December 24, 1987 of a hearing on January 26, 1988 relative to an amendment to this section of the By-Law. After it was called to the Planning Board's attention that the procedure set forth in G.L. c.40A, §5 requires that the proposed amendment first be submitted to the Board of Selectmen, the Planning Board caused subsequent notices to be published on March 3, 1988 and March 10, 1988 of a hearing on March 22, 1988, and after such hearing was held it did indeed recommend clarification of Section V.2B to the town. The Marblehead annual town meeting on May 2, 1988 approved the suggested amendment of said By-Law to read as follows:
V.2B A lot may not be so reduced as to fail to satisfy any minimum dimension, area or yard required for a permitted principal use
Notwithstanding the area and frontage requirements hereof, a single, detached one-family dwelling or lawful building other than a dwelling may be constructed and used on a lot having less than the prescibed [sic] basic minimum area and/or minimum frontage (provided that all other regulations of this By-Law are complied with) if said lot prior to the date of the adoption of the requirements in question:
a. was lawfully laid out by plan or deed duly recorded in the Essex South District Registry of Deeds (or registered in the Essex South District of the Land Court; and
b. was otherwise exempted from such requirements by the provisions of statute; and
c. further provided that such lot conformed to the area and frontage requirements of the Zoning By-Law applicable at the time of said recording or approval; and
d. further provided that such lot, at the time of application for a building permit, shall not be less than 5,000 square feet in area; and
e. further provided that any lot which was held in common ownership with any adjoining land at the time of recording of any plan or deed referred to in Section V.2B (a) shall be subject to the area or dimensional requirements of this By-Law, except to the extent provided by Massachusetts General Laws, Chapter 40A, §6.
The amendment subsequently was approved by the Attorney General and became effective. One common element of the controversy in the two cases is the date when the amendment to the Zoning By-Law became effective. I find and rule that this is March 3, 1988. The publication by the Planning Board in December for a January 26, 1988 hearing was a nullity since it did not follow the procedure set forth in G.L. c. 40A, §5 and none of the saving language or mistakes in publication has any relevancy to the failure to conform to the statutory procedure. The date which governs the decision in both cases then is March 3, 1988.
As to Miscellaneous Case No. 128094, this action involves a lot containing slightly less than 5,000 square feet, and the legal dispute between the parties is as to the proper interpretation of Section V.2B of the By-Law prior to the 1988 amendment. The plaintiffs contend that a lot which was lawfully laid out by plan or deed duly recorded in the Essex South Registry of Deeds (or registered in the Essex South District of the Land Court) might be built upon without regard to the provisions of this section relating to a minimum area of 5,000 square feet. They argue that the words which follow subparagraph (b) of the section "and further provide that such lot conformed to the area and frontage requirements of the Zoning By-Law applicable at the time of said recording or approval and further provided that such lot, at the time of application for building permit, shall not be less than 5,000 square feet in area" apply only to lots falling within the saving clause of subparagraph (a) and not to those enjoying the exemption set forth in subparagraph (b). The punctuation and the paragraphing of this article give support to the plaintiffs' position since at first blush the proviso clause would seem to modify only subparagraph (b) of the Section. However a study of the actual language of the conditions to which the minimum size lot is subject leads to the opposite conclusion. The words "said recording or approval" have no antecedent other than the reference to the laying out by plan or deed in subparagraph (a) and even this construction still leaves the word "approval" dangling. If Marblehead had accepted the subdivision control law then perhaps the word "approval" might be construed to refer to approval by the Planning Board, but the town has never done so. [Note 1] In any event, it is only in subparagraph (a) that there is any reference to recording and with this meager clue as to the intention of the draftsman of the Zoning By-Law, I must conclude that it was intended that the conditions spelled out for the exemption of a lot from the minimum requirements require compliance with the proviso even though the provision immediately adjoins subparagraph (b) in the sentence. This conclusion prevails over other tools of statutory construction such as the inference to be drawn from a subsequent change. See Becket v. Building Inspector of Marblehead, supra, a tool that would be even more applicable here by the Planning Board's characterization of the amendment as closing a loophole. Cf. also Moulton v. Brookline Rent Control Board, 385 Mass. 228 (1982) and Baldiga v. Board of Appeals of Uxbridge, 395 Mass. 829 (1985). However, it seems to me that in weighing all the language of the section prior to amendment it can only mean that a lot lawfully to be built upon not only had to be lawfully laid out by plan or deed, but also had to conform to the applicable zoning and area frontage requirements in effect at the time of the recording and to have at least 5,000 square feet.
Since Marblehead until recently had areas where 4,000 square feet was the minimum required for construction, this section would have been of no help in such districts, but it seems the most intelligent resoluti on of the problem presented here. Accordingly, I grant the defendant Board's motion for partial summary judgment as to Count I.
As to Miscellaneous Case No. 128095, this action involves the same procedural background as to the By-Law provision in question, but it relates only to the last sentence which is set forth above and which reads as follows:
Any lot which was held in common ownership with any adjoining land at the time of recording of any plan or deed referred to in Section V-2B (a) shall be subject to the area or dimensional requirements of this By-Law, except to the extent provided by Massachusetts General Laws, Chapter 40A, Section 6.
The defendant Board argues that historically the lot here in question, which is Lot 3 containing 3,156 square feet, was commonly owned together with an adjoining parcel of land. If in fact the plaintiff's predecessors owned two adjoining parcels of land which together met the minimum requirements for the district, then the conveyance out of locus would bar its use as a buildable lot. However, I have no plans before me to enable me to determine whether in fact that was the case. However, the decision of the Board of Appeals was not based on this ground but on the same ground as that in the Gilhooley/Martin matter referred to above. The Board ruled that the 5,000 square foot minimum applied to Lot 3, and as set forth above, I agree with its interpretati on of the By-Law. Accordingly, I allow the defendant Board's motion for partial summary judgment as to Count I.
By the Court
JAMES J. GILHOOLEY, FRANCES J. GILHOOLEY, WAYNE D. MARTIN and PRISCILLA MARTIN vs. DOUGLAS MOXHAM, DAVID DELANY, BARRY PORTNOY, BARBARA SHEFFTZ, JEFFREY SHRIBMAN, as they are the BOARD OF APPEALS of the TOWN OF MARBLEHEAD and the TOWN OF MARBLEHEAD.