GAIL M. TAYLOR, TRUSTEE v. PEMBROKE PLANNING BOARD.

This c:ase involves an appeal pursuant to G.L. c. 41, § 81BB of a decision of the Pembroke Planning Board (the Board) declining to endorse the plaintiff's Plan [Note 1] as "approval under the subdivision control law not required". The plaintiff alleged that its Plan was not a subdivision under G.L. c. 41, § 81L, because the Plan contemplated the division of a tract of land on which two buildings were standing before the Subdivision Control Law for the Town of Pembroke went into effect. The plaintiff moved for summary judgment and the defendant opposed the motion and made a cross motion for summary judgment. [Note 2] The motions were argued by counsel.

After reviewing the pleadings, affidavits, photographs, and the one stipulation on file, I find that there is no genuine issue as to any material fact and that the plaintiff is entitled to summary judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553 (1976). Based on the pleadings, affidavits, photographs, and stipulation, I find the following to be the undisputed material facts;

1/ The original plaintiff, Donald Shute, Trustee, (Shute) resides at 200 Tifany Road, Norwell, Plymouth County, Massachusetts. Shute was the trustee named in a declaration of trust of the South Shore Realty Trust, dated Augut 20, 1986.

2/ The substituted plaintiff, Gail M. Taylor, Trustee, is the current owner of the locus under a deed dated July 18, 1988. Taylor is the named trustee under a declaration of trust entitled 312 High Street Trust.

3/ The defendant Board was made up of the following members as of the filing of the present appeal; Claire R. Walsh, Donald W. Donovan, William R. Buckley, Robert L. Reed, John J. Keefe, and Linda J. Bean.

4/ Shute filed the Plan in compliance with G.L. c. 41, § 81T; seeking the endorsement of its Plan, "approval under the subdivision control law not required", pursuant to G.L. c. 41, § 81P.

5/ The Board held a meeting on January 25, 1988, at which time the Board voted to deny Shute's application for an endorsement, finding the Plan to be a subdivision. The Board filed its decision with the Town Clerk on January 26, 1988.

6/ Shute filed a timely appeal to this Court pursuant to G.L. c. 41, § 81BB.

7/ The Zoning By-Law for the Town of Pembroke was adopted by the Town of Pembroke in 1945.

8/ The Subdivision Control Law for the Town of Pembroke was adopted by the Town of Pembroke in 1954.

9/ Allan R. Whitman and Mildred L. Whitman owned the property (the locus) at the corner of High Street and Old Washington Street between May 2, 1950 and May 22, 1969.

10/ There are two structures located on the locus; a house measuring approximately 30' by 30' and a separate concrete block building measuring 88.6' by 30.8' (the second building). [Note 3] Both structures existed prior to the adoption of the Subdivision Control Law in the Town of Pembroke. [Note 4]

11/ The second building is set on a cement foundation and has had its own cesspool and its own electricity from a time prior to the adoption of the Subdivision Control Law of the Town of Pembroke.

12/ The second building was being used by its owner to breed, house and slaughter turkeys at the time of the adoption of the Subdivision Control Law of the Town of Pembroke. Since that time, it has been used as a garage and for storage. The second building was, at various times, rented to others for storage and garage purposes.

13/ A series of fifteen (15) photographs depicting the second building were included in the record by stipulation.

The sole issue to be resolved under this appeal is whether the Plan is entitled to an approval not required endorsement from the Board, because the division of land contemplated falls within an exception listed under G.L. c. 41, § 81L. For the reasons stated hereinafter, I rule that under the principals enunciated in Citgo Petroleum Corp. v. Planning Board of Braintree, 24 Mass. App. Ct. 425 (1987), the Plan is entitled to said endorsement.

G.L. c. 41, § 81L provides, in pertinent part, as follows:

. . .the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing, shall not constitute a subdivision.

The Plan submitted by Shute contemplates the division of the locus into two lots. There are currently two buildings on the locus, and those buildings were in existence prior to the enactment of the Subdivision Control Law for the Town of Pembroke. The Plan shows a division of the locus whereby one building would remain standing on each lot. Both structures are substantial buildings and are currently in use and were in use prior to the enactment of the Subdivision Control Law.

The defendant's refusal to endorse the Plan was based on its finding that the Plan contemplated a subdivision. On this appeal, the Board primarily argued that the Plan did not meet the § 81L exception, and therefore, it contemplated a subdivision. The Board makes three arguments as to why the plaintiff's motion for summary judgment should be denied; firstly, that the § 81L exception requires "individual use" of the subject structures and there is a factual dispute as to whether the structures were independently used, next, that the uses which the second building were put to are "disfavored" uses, and lastly, that the § 81L exception only applies to "substantial" buildings and there is a factual dispute as to whether the second building is "substantial". [Note 5]

The defendant attempts to create a factual dispute in this case by introducing an aditional requirement into the § 81L exception; namely, that the two structures must be used "independently" of one another to qualify for the exception. The defendant contends that the Appeals Court in Citgo Petroleum Corp., 24 Mass. App. Ct. at 427, "qualified the seemingly broad language" of § 81L, by the statement that "the lots in the [Citgo case were] being used for distinct, independent business operations, and the preexisting buildings relied upon. . .are substantial buildings".

Id. The Appeals Court in Citgo did not hold that in order to qualify for the § 81L exception, that the buildings in issue have to be used, or had to have been used, independently of one another. The Court was merely, in dicta, distinguishing the facts of that case from the situation where an applicant attempts to use the § 81L exception to divide land whereon one of two structures is a "detached garage, shed or other outbuilding." Id. at 426-27. General Laws c. 41, § 81L does not incorporate any language which could be construed as requiring independent use to qualify for the exception. I therefore reject the argument that in order to qualify for the § 81L exception at issue, that the applicant must show "independent use" of its structures. [Note 6] Because there is no such requirement, the Board's attempt to create a factual dispute on that issue fails.

The Appeals Court, in Citgo Petroleum Corp., raised the issue, without deciding it, that an insubstantial structure might not qualify for the § 81L exception. Id. The Appeals Court opined that "[a] claim that a detached garage or a chicken house or woodshed qualifies under this exception might present a different case." [Note 7] The Board argues therefrom that certain types of structures do not fall within the exception and that a structure must be substantial to meet the exception.

I begin by ruling that the use a structure is put to is in no way controlling on the issue of whether a building meets the § 81L exception. The Appeals Court in Citgo did not so hold and § 81L does not have any such requirement. The Appeals Court, by listing several types of structures, was merely distinguishing the facts of that case from a factual scenario raised by the appellant in that case. Therefore, the fact that the cement block building has been used to store autombiles and as a turkey farm is not controlling on the issue herein.

Without deciding whether the § 81L exception requires that the buildings in issue be substantial, I next rule that the second building was a substantial structure prior to the enactment of the Subdivision Control Laws and is a substantial structure now. It measures 88.6' by 30.8', it is a cement block building set on a cement foundation, it has its own cesspool and electricity, and it has had those attributes from a time prior to the enactment of the Subdivision Control Law. [Note 8] The Board argues that whether or not this building is substantial can not be answered on this record and that therefore a factual issue is in dispute; however, based on the undisputed facts, it is clear that the second building has been a substantial structure from a time prior to the enactment of the Subdivision Control Law. Moreover, if substantiality were a requirement under § 81L, that would be a legal conclusion and not a factual issue.

Based on all of the foregoing, I rule that the Plan is entitled to the requested endorsement. I therefore rule that the plaintiff's motion for summary judgment shall be allowed in the form requested and that the defendant's cross motion for summary judgment shall be denied.

Judgment accordingly.

exhibit 1