Since 1979 the plaintiff has sought a permit to build a house on a lot of land shown as Lot B3 on a plan entitled "Plan of Land in Melrose, Mass., belonging to Emma S. Carter", dated February 8, 1947, Joseph Selwyn, Civil Engineer. The lot in question has sufficient area and lot width to comply with the requirements of the Zoning Ordinance of the City of Melrose. The problem has arisen from the question as to whether so called Lot D shown on said plan now owned by the City of Melrose is subject to easements granted to the plaintiff by the prior owner thereof for the benefit of Lot B3. I find and rule that the taking for the nonpayment of taxes by the City of Melrose was subject to pre-existing easements, that the plaintiff's lot was exempted from the provisions of the Subdivision Control Law by virtue of G.L. c. 41, §81FF arid that the plaintiff is entitled to build upon said Lot B3.
The City does not now dispute the position taken by the plaintiff. There is attached to this decision a reduced copy of the plan to make the problem more intelligible. This attachment is shown as Appendix "A", and Lot D shown thereof is in effect a portion of East Rock Park.
A trial was held at the Land Court on April 11, 1990 at which the parties filed a revised agreed statement of facts together with the exhibits referred to therein which are incorporated herein for the purpose of any appeal. The revised agreed statement of facts reads as follows:
1. Plaintiff Norma Cefalo is the freehold owner in possession of land known as Lot B3 on a "Plan of Land in Melrose, Mass., belonging to Emma S. Carter", dated February 8, 1947, which plan is recorded at Middlesex South Registry of Deeds in Book 7134, Page 388 (Exhibit "D" attached hereto).
The plaintiff's title derived from a deed to herself and her late husband, dated October 10, 1951, which deed is recorded at said Registry in Book 7810, Page 590 (Exhibit "B").
The grantor in said deed, Philip G. Howe, derived his title from a deed to him from Emma S. Carter, the original subdivider, dated April 26, 1947, which deed is recorded at said Deeds in Book 7134, Page 390 (Exhibit "C").
2. Lot B3 has frontage on a way known as East Rock Park. East Rock Park was created by a revision of the original subdivision plan and is set forth on a plan entitled identically to the plan mentioned above, i.e., "Plan of Land in Melrose, Mass., belonging to Emma S. Carter", dated February 8, 1947; however, the revised plan shows more detail as to the interior lots in the subdivision as well as the street layout. The revised plan was recorded on June 13, 1950 at said Registry of Deeds in Book 7591, End (Exhibit "D"). In 1954, in common with others, plaintiff Norma Cefalo was granted an easement over said way to Porter Street, a public way, by grant recorded at said Deeds in Book 7871, Page 565 (Exhibit "E"). East Rock Park, a 50-foot way, remains unpaved to this date but is serviced by electrical and telephone lines, water and sewer connections, fire hydrant and curb radius pieces at the junction of Porter Street. East Rock Park is in use by owners of other lots shown on the original subdivision plan and by the utility companies for service of utility lines.
3. By virtue of low value tax foreclosure (Exhibits "F", "G" and "H"), the City of Melrose is the owner of Lot D on the original subdivision plan. Lot D is a portion of East Rock Park and as such forms a portion of the premises over which the plaintiff holds easement rights as set forth in the grant mentioned in Paragraph 2 (Exhibit "E").
4. On September 11, 1979, plaintiff Norma Cefalo made application to the Planning Board of the City of Melrose for a determination of Planning Board jurisdiction regarding Lot B3 (Exhibit "K"). The application contended that the lot did not constitute a subdivision as defined by statute because the lot had the amount of frontage, area and depth required by the Zoning Ordinance of the City of Melrose, and because the lot is located on a private way to which the public has access. The application cited Section 81FF of the Subdivision Control Law (page 2, last paragraph). Although the plaintiff discussed the application at a regularly scheduled meeting, the Melrose Planning Board took no action on Plaintiff's Application for Determination.
5. On May 14, 1980, the Melrose Board of Appeals denied the petition of plaintiff Norma Cefalo for an overruling of an allegedly erroneous decision of the Melrose Building Inspector who had denied the application of the plaintiff to construct a singlefamily residence on Lot B3. The decision of the Board of Appeals is attached hereto (Exhibit "I"). The decision cites the "fact" that Lot D had been taken by the City of Melrose, thereby allegedly extinguishing the rights of usage in East Rock Park as primary justification for the denial (paragraph 2, Exhibit "I"). The decision also cites Section 9.3 of the Zoning Ordinance of the City of Melrose (Exhibit "J") as a secondary justification for the denial, contending that "grandfathered" lots must be created under the prior Planning Board regulations. This secondary justification was made without analysis of the language of said Section 9.3 as it would relate to a lot of record held in separate, noncontiguous ownership prior to the date of adoption of the Subdivision Control Law in the City of Melrose.
6. On May 1, 1985, plaintiff Norma Cefalo recorded a Certificate of the City Clerk of Melrose stating that more than fourteen (14) days had expired after the submission of the Application for Determination without action having been taken by the Melrose Planning Board. This certificate was recorded at said Deeds in Book 16135, Page 172 (Exhibit "L").
7. Plaintiff Phyllis Renzullo is the potential purchaser of the premises under a Purchase and Sale Agreement dated August 25, 1986, a copy of which is attached (Exhibit "M"). She wishes to construct a single-family dwelling on the premises in the course of which she will construct the way fronting Lot B3 to the normal specifications of the relevant municipal authorities.
8. The City of Melrose, through its Building Inspector, continues to refuse to issue a building permit for the construction of a single-family home desired by plaintiff Phyllis Renzullo because of the alleged "lack of frontage" caused by the "eradication of the way" resulting from the taking of Lot D by the City of Melrose for nonpayment of taxes.
9. In addition to the above, the following facts are stipulated by the parties:
a. The Subdivision Control Law became effective in the city of Melrose on January 1, 1954.
b. That Lot B3 has been held in separate, noncontiguous ownership by plaintiff Norma Cefalo since October 10, 1951.
c. That plaintiff Norma Cefalo does not and has not owned any other lot in the subdivision from the date of its formation to the present date.
d. That plaintiff Phyllis Renzullo does not and has not owned any lot in the subdivision from the date of formation to the present date.
The Court adopts the Agreed statement of Facts and finds the facts as set forth by the parties.
Section 81FF of G.L. c. 41 provides for an exemption "with respect to lots which had been sold and were held in ownership separate from that of the remainder of the subdivision when said law went into affect in such city or town and to rights of way and other easements appurtenant to such lots. . . ." It is clear that the Subdivision Control Law was not adopted in Melrose until 1954. The plan in question was filed for record with the Middlesex South District Registry of Deeds on June 13, 1950, and there were earlier plans prior thereto. Lot B3 was conveyed to a predecessor in title of the plaintiff in 1947, and it was acquired by the plaintiff and her late husband by deed recorded on October 10, 1951 who owned it separate from the other lots in the subdivision. There was a grant made by the then owners of Lot D on the plan of a right to use East Rock Park and Lot D as appurtenant to the locus. The deeds to the plaintiff's predecessor and to her (and her late husband) pre-date the adoption of the Subdivision Control Law in Melrose as well as February 1, 1952 which is the statutory cutoff date. See Sturges v. Chilmark, 380 Mass. 246 , 260 (1980); Clows v. Middleton, 12 Mass. App. Ct. 129 (1981).
Even if Lot B3 was not entitled to an exemption as I have found that it is, the plan showing the lot was constructively approved when the plaintiff sought an endorsement from the Planning Board of a plan showing her property, and the Board failed to respond to the request that "Approval Not Required" was appropriate within the statutory period of fourteen days. See G.L. c. 41, §81P.
The municipal authorities seemed to be most concerned in ruling on the plaintiff's application with the taking by the City of Melrose for the nonpayment of taxes. Both the Building Inspector and the Zoning Board of Appeals viewed the taking as wiping out all interest prior thereto. This, of course, would be the result if a Chapter 79 taking were under consideration, but premises taken by a municipality for the nonpayment of taxes are both before and after either redemption or foreclosure "subject to and have the benefit of all easements and restrictions lawfully existing in, upon or over said land or appurtenant thereto". G.L. c. 60, §45. In all Land Court proceedings to foreclose title this principle is viewed as the gospel, and this statute applies as well to administrative foreclosure pursuant to the so called low value process which is what was followed in the instant case.
There has never been a question as to the lot meeting the minimum requirements of the zoning by-law. It appears that the City may have adopted a minimum frontage requirement in the past few months but this is not clear; in years previous there has been a width rather than a frontage minimum to meet. There is no contention that locus does not conform.
There is a provision in Section 9.3 of the Melrose Zoning Ordinance similar to the provisions of G.L. c. 40A, §6 which provides as follows:
Section 9.3 - Residential Lot of Record. Any lot lawfully laid out by plan or deed duly recorded which complies (at the time of recording -) with a minimum area, frontage, width and depth requirements, if any, of the zoning ordinance then in effect, may be built upon for residential use provided it has a minimum area of 5,000 square feet, with a minimum of front footage of 50 feet, and is otherwise in accordance with the provisions of Section 6 of the zoning act.
In addition to the rights granted by the grandfathering provision of the Subdivision Control Law itself, the provision of the Melrose Zoning Ordinance just quoted also gives the plaintiff the right to build upon the property in question. The difficulty with the municipal authorities always has arisen over the question of the status of East Rock Park and Lot D and the plaintiff's right to use the latter as part of the way.
In summary therefore I find and rule that the Lot B3 owned by the plaintiff is exempt from the provisions of the Subdivision Control Law, that in addition the 1985 plan showing a portion of the earlier 1947 plan was constructively approved by the Planning Board, that Lot D is still subject to the prior easement granted by the owners thereof before the foreclosure of the right of redemption by the City of Melrose, and that the plaintiff is entitled to the issuance of a building permit covering the lot subject, of course, to compliance with the requirements of the state building code. The plaintiff has entered into a Purchase and Sale Agreement with the co-plaintiff Phyllis Renzullo, and if the present owner Norma Cefalo conveys the premises, her grantee will succeed to her rights.