CALVIN P. LEAROYD vs. DONALD THURSTON, NATHANIEL DUMMER, CHARLES GWINN, as they are the BOARD OF APPEALS of the TOWN OF ROWLEY.

This case involves an appeal, pursuant to G.L. c.40A, §17, from a decision of the defendant Board of Appeals of the Town of Rowley ("the Board"). The plaintiff, Calvin P. Learoyd, applied for a building permit to construct a single family house on a parcel of land in Rowley. The Building Inspector declined to issue the permit on the ground that the lot did not conform to the frontage requirements of the Town of Rowley Zoning By-Law. The plaintiff appealed that decision in a timely manner to the Board, seeking a determination that the lot was exempt from the Town's zoning requirements as to lot frontage by operation of G.L c.40A, §6. The Board denied the appeal and upheld the decision of the Building Inspector. The plaintiff then appealed to this court.

The parties filed cross-motions for summary judgment on an agreed statement of facts. After a hearing on the cross-motions, the case was remanded by agreement to the Board for the purpose of amending and correcting the first reason in its decision for denying the building permit. The Board voted to amend its decision in accordance with the Court's Order.

The parties are in agreement that there are no disputed issues of material fact and that judgment should enter as a matter of law. After reviewing all matters entitled to consideration on a motion for summary judgment, including the agreed statement of facts, [Note 1] I rule that the following material facts are not in dispute and that, consequently, the case is appropriate for summary judgment as a matter of law. Community National Bank v Dawes, 369 Mass. 550 , 553 (1976):

I. CHAIN OF TITLE FOR PARCELS ONE AND TWO

1. The plaintiff, Calvin P. Learoyd, and his wife Celia Learoyd, are the owners of a parcel of land, most of which is located in Rowley, and which is identified as lot 109 on Rowley Assessor's Map No. 25 (hereinafter "Lot 109"). Lot 109 has approximately 77 feet of frontage on Main Street, a state highway, and 37,328 square feet of area. The rear portion of lot 109, consisting of 11,971 square feet, is located in Ipswich.

2. Lot 109 is the aggregate of two adjoining parcels, hereinafter referred to as "Parcel One" and "Parcel Two". [Note 2] Parcel One has 52 feet of frontage on Main Street and approximately 9,090 square feet of area. Parcel Two has approximately 25 feet of frontage on Main Street and approximately 28,238 square feet of area. A plan showing lot 109 was recorded in 1983 at the Essex Registry of Deeds (Southern District) at Plan Book 178, Plan 84. [Note 3] The chains of title to Parcel One and Two, dated from March 15, 1902, are set forth below.

3. Parcels One and Two were once part of a larger tract of land conveyed to Lillian Bradstreet by Abby S. Short by deed dated March 15, 1902, recorded at Book 1717, Page 395. ("the Bradstreet Farm").

4. Lillian Bradstreet created Parcel One when she conveyed a portion of the Bradstreet Farm to her daughter, Eleanor Bradstreet Good, by deed dated April 25, 1936, recorded at Book 3071, Page 54. The resulting parcel had 52 feet of frontage on Main Street and approximately 9,090 square feet of area.

5. Lillian Bradstreet died in June of 1950, devising all her real property (including the Bradstreet Farm, less Parcel One) to her children, Eleanor Bradstreet Good, John E. Bradstreet and Ruth L. Bradstreet, in equal shares. As a result, Eleanor Bradstreet Good owned Parcel One plus a one-third interest in the Bradstreet Farm as of 1950.

6. Eleanor Bradstreet Good died in October of 1950, leaving a will by which she left all of her real property to her husband, Alexander Good. Under his wife's will, Alexander Good became the owner of both Parcel One and her one-third interest in the Bradstree Farm. He then conveyed his one-third interest in the Bradstreet Farm to Ruth L. Bradstreet by deed dated September 28, 1954, recorded at Book 4193, Page 180, giving her a two-thirds interest in the farm. Alexander and Maude M. Good, as husband and wife, later conveyed Parcel One to Carl David Good by deed dated August 31, 1962, recorded at Book 4976, Page 279.

7. As of 1954, Ruth L. Bradstreet owned a two-thirds interest in the Bradstreet Farm [Note 4] and her brother, John E. Bradstreet, owned a one-third interest. On January 13, 1967, Ruth L. Bradstreet filed a Petition to be appointed Conservator of John E. Bradstreet and also for a license to sell a portion of his one-third interest in the Bradstreet Farm. The Petition was allowed on January 26, 1967. Subsequently, Ruth L.Bradstreet conveyed her own two-thirds interest and her brother's one-third interest in a portion of the Bradstreet Farm to Carl David Good by two deeds dated January 28, 1967 and recorded at Book 5421, Page 726 and Book 5421, page 725, respectively. The portion of the farm conveyed became Parcel Two, which had approximately 25 feet of frontage and approximately 28,238 square feet of area.

8. John Bradstreet died on February 2, 1967, leaving his real property to Ruth L. Bradstreet, who was then appointed Executrix of his estate and was authorized to sell his one-third interest in Parcel Two. By deed dated May 29, 1967, recorded at Book 5447, Page 347, Ruth L. Bradsteet, as Executrix of the will of John E. Bradstreet, conveyed this one-third interest to Carl David Good. This deed confirmed the January 28, 1967 conveyance to Carl David Good of John E. Bradstreet's one-third interest in Parcel Two. As of 1967, Carl David Good owned both Parcels One and Two.

9. Carl David Good died in 1970, leaving all of his real estate to his stepmother, Maude M. Good. In 1976, Maude M. Good died, leaving all of her real property to Ethel Mary Withington. By deed dated August 26, 1976, recorded at Book 6273, Page 727, Ethel Mary Withington conveyed Parcels One and Two to Thornton E. Lallier, who in turn conveyed both parcels to Erna L. Lallier by deed dated October 6, 1976, recorded at Book 6286, Page 203. The plaintiff, Calvin P. Learoyd and his wife, Celia G. Learoyd, purchased Parcels One and Two from Erna L. Lallier in 1983. The deed to Parcels One and Two was dated July 19, 1983 and recorded at Book 7177, Page 416.

II. HISTORY OF ROWLEY ZONING BY-LAW & PRIOR PROCEEDINGS

10. In 1960 the Town of Rowley adopted its first zoning by­law. The by-law created two zoning districts and set forth area and frontage requirements for building lots in each district. Parcel One and the Bradstreet Farm, from which Parcel Two was subsequently created, were located in the outlying District, which had minimum requirements of 125 feet of frontage and 30,000 square feet of area.

11. On May 3, 1976, the Town of Rowley changed the minimum area requirements in the outlying District from 30,000 square feet of area to 40,000 square feet. The frontage requirement remained 125 feet.

12. On November 28, 1977, Thornton and Erna L. Lallier applied to the Rowley Board of Selectmen for a building permit for Parcels One and Two. The Board of Selectmen denied the application on the same day on the following ground:

. . . that Lot A is no longer a non-conforming lot because it was held in common ownership with Lot B by Carl Good in excess of five years, and the combined Lots A & B fail to meet the present zoning requirements. [Note 5]

13. On November 29, 1977, Mrs. Lallier filed a Notice of Intent with the Town Clerk to appeal the Board of Selectmen's decision to the Rowley Board of Appeals ("the Board"). On February 24, 1978, she filed a petition for a variance with the Board.

14. On April 26, 1978, the Board affirmed the decision of the Board of Selectmen denying Mrs. Lallier's building permit application and also denied her petition for a variance.

15. On or about May 19, 1978, Mrs. Lallier filed an appeal from the April 26, 1978 decision of the Board in the District Court of Newburyport, C.A. No. 1857. The Board filed a Motion to Dismiss which was allowed on August 15, 1978. The motion alleged the Court's lack of jurisdiction and a defective complaint. The District Court did not specify the reasons upon which it based its dismissal of Mrs. Lallier's appeal.

16. On December 5, 1983, the Town of Rowley amended its zoning by-law again. This amendment changed the district in which Parcels One and Two are located from the Outlying District to the Central District. In the central District, the minimum requirements for a building lot were 100 feet of frontage and 20,000 square feet of area.

17. On January 14, 1984, the plaintiff, Calvin P. Learoyd, filed a petition for a variance for lot 109 with the Board. The plaintiff requested that a variance be granted from the frontage and area requirements of the zoning by-law.

18. On February 23, 1984, the Board denied the petition. No appeal was filed by the plaintiff.

III. HISTORY OF PRESENT CASE

19. On May 28, 1987, the plaintiff filed an application with the Rowley Building Inspector for a building permit to construct a new dwelling on Lot 109, which lot is comprised of Parcels One and Two.

20. On the same day (May 28, 1987), the Rowley Building Inspector denied the application on the ground that Lot 109 did not meet the Town's zoning requirements as to lot frontage.

21. On June 26, 1987, the plaintiff filed an appeal from the unfavorable action of the Building Inspector with the Board and the Town Clerk.

22. On July 16, 1987, the Board rejected the appeal on the ground that it did not conform to their Rules and Regulations as submitted. The plaintiff then filed an appeal with the Land Court, Misc. Case No. 124252. The parties have filed a stipulation of dismissal in that action and have agreed that the June 26, 1987 appeal should be considered as having been withdrawn without prejudice.

23. On July 21, 1987, the Rowley Building Inspector sent a letter to George A. Hall, Jr., counsel for the plaintiff, in which he reaffirmed his decision denying the plaintiff's building permit application. The parties agree that this letter constitutes an appealable decision by the Building Inspector under G.L. c.40A, §7.

24. On August 7, 1987, the plaintiff filed an appeal with the Board from the denial of his building permit application.

25. On October 15, 1987, the Board denied the plaintiff's appeal on the following grounds: (1) that neither parcel individually, nor the parcels combined, satisfied the requirements for a non-conforming lot as set forth in G.L. c.40A, §6; (2) that Parcel Two was an illegal lot when it was created in 1967, and the combination of Parcels One and Two by law rendered the resulting parcel illegal; (3) that the appeal to the Board was not filed in a timely way and (4) that because on two prior occasions the Board denied variances on substantially the same facts as involved in the plaintiff's appeal, these two decisions required the Board to deny this appeal. The plaintiff filed the instant appeal in the Land Court on October 17, 1987, and filed notice of the appeal with the Rowley Town Clerk on November 2, 1987.

26. On February 29, 1988 the parties to this action filed cross-motions for summary judgment on an agreed statement of facts. After a hearing before the Court on November 14, 1988, the matter was remanded to the Board by agreement for the purpose of having the Board amend and correct the first ground for denying the building permit to reflect the fact that the zoning amendment referred to in the Board's decision occurred in 1976 and not in 1978, and that the next previous deeds on record were deeds executed in 1962 and 1967, respectively. It was also ordered that the agreed statement of facts be amended to include the Board's original decision and the decision as amended.

27. On December 6, 1988, the defendant Board voted to amend its decision in accordance with the court's Order.

The issue before the Court is whether lot 109 is exempt from the dimensional requirements of the Town's Zoning By-Law. When created in 1936, Parcel One was a legal building lot because there was no zoning by-law in existence in the Town of Rowley at that time. In 1960, the Town adopted its first zoning by-law, creating two zoning districts. The outlying District, in which Parcel One was located, had minimum requirements of 125 feet of frontage and 30,000 square feet of area. Because Parcel One did not meet these requirements, having only 50 feet of frontage and slightly over 9,000 square feet of area, it ceased to be a legal building lot at that time. However, Parcel One was afforded non-conforming lot protection and was exempted from the dimensional requirements of the newly adopted by-law by operation of G.L. c.40A, §5A [Note 6] ("section 5A").

Under section 5A, a lot was exempt from newly enacted dimensional zoning requirements if the lot satisfied certain criteria. First, the lot must have complied with the dimensional requirements of any zoning by-law existing at the time the deed or plan for the lot was recorded. Because there were no zoning requirements in existence in 1936 when Parcel One was created and its deed recorded, this criterion was inapplicable to Parcel One. Secondly, at the time of the adoption or amendment of the by-law, the lot must not have been held in common ownership with any adjoining land, it must have been located in a residential district and it must have had at least 5,000 square feet of area and 50 feet of frontage. In 1960, when the Town adopted the first zoning by­law, Parcel One, then owned by Alexander and Maude M. Good, was not held in common ownership with any adjoining land, it was located in a residential district and it had at least 50 feet of frontage and 5,000 square feet of area. Therefore, Parcel One was entitled to the "grandfather status" conferred by section 5A.

When Parcel Two was created in 1967, it had approximately 25 feet of frontage and approximately 28,238 square feet of area and was not a legal building lot because it met neither the frontage nor the area requirement for the outlying District in which it was located. Therefore, because Parcel Two did not comply with the zoning by-law existing at its creation, it was afforded no grandfather protection by section 5A. Carl David Good became the common owner of both parcels when Parcel Two was conveyed to him in 1967.

As one of the grounds for its denial of the plaintiff's building permit, the Board reasoned that the 1967 addition of Parcel Two (an illegal lot) to Parcel One (a nonconforming lot entitled to section 5A protection) voided the protection that Parcel One enjoyed individually and rendered the entire resulting parcel a non-buildable lot. It seems unreasonable to suggest that a landowner cannot acquire land adjoining a protected, grandfathered, nonconforming lot he owns, merge the two lots to enlarge the protected, nonconforming lot and render it less nonconforming, unless the entire resulting lot complies with existing dimensional zoning requirements. Furthermore, there appears to be no authority supporting the proposition that when an owner of a nonconforming lot entitled to grandfathered status acquires an adjacent nonconforming lot not entitled to such protection, and then merges the two lots, this merger somehow voids the protected status of the first lot. On the contrary, the Massachusetts decisions interpreting the former section 5A, the present section 6 and other similar grandfather clauses suggest the opposite conclusion--that such protection is preserved upon the merger of two or more nonconforming lots.

Adjoining parcels held in common ownership are usually considered to be one lot for zoning purposes. Heald v. Zoning Board of Appeals of Greenfield, 7 Mass. App. Ct. 286 (1979), Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 (1965). It is the sum of the components of the entire parcel, and not the manner in which the components were assembled to create the larger parcel, which should be considered in applying the zoning requirements. Becket v. Building Inspector of Marblehead, 6 Mass. App. Ct. 96 , 104 (1978). Furthermore, it is a well settled principle that an "owner cannot avail himself of the nonconforming use exemption unless he includes his adjacent land in order to minimize the nonconformity." Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963). A landowner must treat any adjoining lots which he owns as a single lot in order to avoid, or at least reduce, the nonconformity with the dimensional requirements of the zoning by-law. Planning Board of Norwell v. Serena, 27 Mass. App. Ct. 689 , 691 (1989), Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987).

Consequently, the merger of Parcels One and Two in Carl David Good in 1967 as the common owner did not destroy Parcel One's exemption from the dimensional requirements of the Town's by-law and did not cause the resulting lot (now lot 109) to become a non-buildable lot. Rather, the merger merely mandated that if Carl David Good had wanted to take advantage of Parcel One's grandfathered status and build on this land, he was required to treat Parcels One and Two as a single lot in order to reduce the nonconformity with the Town's zoning requirements. As of 1967, the combination of Parcels One and Two (hereinafter referred to as Lot 109) rendered a buildable lot under section 5A.

On January 1, 1976 the present G.L. c.40A became effective and the present section 6 replaced the former section 5A. The first sentence of the fourth paragraph of section 6 contains a grandfather provision similar to that of section 5A and provides:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single or two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.

Section 6 establishes that a lot for single or two-family residential use is exempt from an increase in the dimensional requirements of a zoning by-law if the lot satisfies the following criteria: the lot must not be held in common ownership with any adjoining land, it must have at least 5000 square feet of area and 50 feet of frontage and it must have conformed to the then-existing requirements of the zoning by-law. The statute is unclear as to the date when these criteria must be met in order for the lot to qualify for an exemption. In Adamowicz v. Ipswich, 395 Mass. 757 , 762 (1985), the Supreme Judicial Court held that the determination as to common ownership is to be made as of the date of the most recent recording of a deed or plan immediately prior to the effective date of the change in the dimensional requirements of the zoning by-law from which the exemption is sought.

The Board contends that this is the determinative date on which to apply all of the criteria of section 6. It argues that if a lot did not conform to the zoning requirements in effect as of the date of the most recent recording of its deed immediately prior to a zoning amendment, section 6 would provide no grandfathered protection for this lot. This interpretation would mean that nonconforming lot status would be lost by a conveyance of the lot followed by a zoning amendment.

Two recent decisions suggest otherwise. In Galenius v. Collins, et al, Land Court Misc. Case No. 122626 (June 3, 1988), judgment affirmed, 29 Mass. App. Ct. 1106 (1990), this Court held that a lot which conformed at the time of the adoption of the town's first zoning by-law in 1928 continued to enjoy its grandfathered status despite subsequent events including amendments to the town's by-law, a tax taking by the town and a number of mesne conveyances. Similarly, the Massachusetts Appeals Court recently stated that the first sentence of the fourth paragraph of section 6 provides a "perpetual exemption from more restrictive zoning for the single lot owner and leaves the lot to that extent open to building." Fercuzo v. Board of Appeals of Falmouth, 29 Mass. App. Ct. 986 , 987 (1990). [Note 7] Under the reasoning of these two decisions, the locus, lot 109, remained a buildable lot by the operation of section 5A and section 6 and its grandfathered status was not adversely affected by the 1976 amendment to the Town's zoning by-law. The further amendment in 1983 to the Town's by-law similarly had no effect on the grandfathered status enjoyed by lot 109. I therefore rule that the plaintiff is entitled to a building permit for lot 109 by virtue of its grandfathered, protected status.

The Board, in addition to claiming that lot 109 had lost its protected, nonconforming lot status, also contends that the plaintiff's appeal is barred by the doctrine of res judicata. The Board maintains that its earlier decision affirming the Board of Selectmen's denial of Erna L.Lallier's building permit application and the subsequent dismissal of Mrs. Lallier's appeal by the Newburyport District Court, preclude the plaintiff from relitigating the issue of whether a building permit may be issued for lot 109.

Res judicata is an affirmative defense, Restainov v. Vannah, 21 Mass. App. Ct. 7 , 9 (1985), Mass. R. Civ. P. 8(c). It operates as a bar to an action being brought if the defendant meets his burden of proving that the elements essential for invoking the defense are present. Fabrizio v. U.S. Susuki Motor Co., 362 Mass. 873 , 874 (1972). To prevail on the defense of res judicata the defendant must prove that there exists an "identity of cause of action and issues, the same parties and judgment on the merits by a court of competent jurisdiction." Almeida v. Travelers Insurance Company, 383 Mass. 226 , 229 (1981), quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933).

To avail itself of the defense of res judicata, the Board must first show that the plaintiff was either a party, or in privity with a party, to the prior adjudication. Heacock v. Heacock, 402 Mass. 21 , 23 (1988). In the present case, the prior action on which the Board relies was brought by the former owner of lot 109, Mrs. Lallier. The plaintiff is in privity with Mrs. Lallier because he is a successor in interest to her. MacCormac v. Murphy, 322 Mass. 228 , 231 (1948).

The Board must also prove that the issue decided in the prior action is identical with the one presented in the plaintiff's appeal. In November of 1977, Mrs. Lallier applied to the Town Board of Selectmen for a building permit for lot 109. This application was denied. Mrs. Lallier appealed this denial to the Board of Appeals, which affirmed the decision of the Board of Selectmen. Mrs. Lallier then filed an appeal from the Board of Appeal's decision in the Newburyport District Court. The plaintiff's present action is also an appeal from the denial of a building permit for lot 109.

Finally, the Board must prove that there was a final judgment on the merits by a court of competent jurisdiction in the prior action. In response to Mrs. Lallier's appeal to the Newburyport District Court, the Board filed a motion to dismiss based on two grounds: (1) that the District Court lacked the jurisdiction to hear the matter and (2) that the plaintiff's complaint was faulty in several respects because it failed to meet the requirements for an appeal under G.L. c.40A, §17. The District Court allowed the Board's motion to dismiss but the official record in said Court did not specify the ground upon which it relied in dismissing Mrs. Lallier's appeal.

A dismissal based on lack of jurisdiction will not preclude the relitigation of an issue, Wright Machine Corp. v. Seaman­Andwell Corp., 364 Mass. 683 , 693 (1974), because such a dismissal does not go to the essential merits of the controversy. Curley v. Curley, 311 Mass. 61 , 66 (1942). If the District Court had dismissed Mrs. Lallier's appeal for lack of jurisdiction, this dismissal would clearly have no res judicata effect. However, this Court judicially notices St. 1978, chapter 478, section 32. By this amendment, which became effective July 1, 1978, the first paragraph of section 17 of chapter 40A, as appearing in section 3 of chapter 808 of the acts of 1975, was amended and, inter alia, conferred concurrent subject matter jurisdiction on the district court department to hear zoning appeals. Mrs. Lallier's appeal was filed in the Newburyport District Court on May 19, 1978. The District Court did not give any reason why it dismissed Mrs. Lallier's appeal. The defense of res judicata "cannot be successfully sustained where it appears, as here, that the previous judgments might have been entered on a number of grounds, some of which were sufficient to support this defence while others were not, unless the defendants proved that...[the previous judgment was] rendered upon some particular ground going to the merits and not upon some other grounds." Hacker v. Beck, 325 Mass. 594 , 598 (1950). Since the record in this case has not established that the District Court dismissed Mrs. Lallier's appeal on a ground going to merits of the action, the defense of res judicata cannot be sustained and will not bar the plaintiff's appeal.

For the foregoing reasons, I rule that the plaintiff is entitled to a building permit to construct a single family house on lot 109 and rule that the October 15, 1987 decision of the Board upholding the Building Inspector's denial of the building permit is hereby annulled.

I therefore rule that the plaintiff's motion for summary judgment is allowed and that the defendant's motion for summary judgment is denied.

Judgment accordingly.