PHILLIP F. GAUDETTE vs. CARL B. BURDITT, RICHARD J. McMANUS, FRANCIS A. HOWARD and JAMES AHERN, as they are Members of the ZONING BOARD OF APPEALS OF THE TOWN OF HOLBROOK.

Plaintiff, Phillip F. Gaudette, appeals from a decision of the Holbrook Zoning Board of Appeals ("ZBA") in denying to him a variance to build a single family residence on an undersized lot which has an area of 5,000 square feet and frontage on one street of 50 feet and on the other abutting street of 100 feet. The case raises many interesting questions of substantive law although the property with which it is concerned is small in size but not in legal challenges. I am remanding the matter to the ZBA with jurisdiction retained in the Court because of concerns which I have as to the adequacy of the decision made by the ZBA and its compliance with the requirements of the open meeting law, G.L. c. 39, §23A et seq. and with the exemption granted for lots the size of the locus by virtue of the provisions of G.L. c. 40A, §6.

A trial was held at the Land Court on November 9, 1989 at which a stenographer was appointed to record and transcribe the testimony. The witnesses were Maria F. Piazza, the record owner of the locus, Phillip F. Gaudette, the applicant for the zoning relief and the buyer named in a purchase and sale agreement with Piazza and Carl B. Burditt, Chairman of the defendant Board of Appeals. Eleven exhibits, some of multiple parts, were introduced into evidence. All such exhibits are incorporated herein for the purpose of any appeal. On all the evidence I find and rule as follows.

1. The plaintiff is the buyer named in a purchase and sale agreement with Maria F. Piazza, the record owner of the locus (Exhibit No. 7).

2. Fred E. Kroker and Ethel W. Kroker, the developers of a large tract of land in Holbrook containing hundreds of lots, conveyed to Henry J. Cornelissen and Mary J. Cornelissen by deed dated July 26, 1952 and recorded with the Norfolk County Registry of Deeds [Note 1], Book 3103, Page 300 (Exhibit No. 2C) Lot No. 900 on a plan entitled "Holbrook Grove Addition 2 Holbrook, Mass. Grove Properties Co. Developers Fred E. & Ethel W. Kroker" by R. Loring Hayward, dated May 13, 1949 and recorded as Plan No. 555 of 1950 in Plan Book 157.

3. The Town of Holbrook took the locus for nonpayment by Mr. and Mrs. Cornelissen of the 1959 and 1960 taxes by an instrument dated September 30, 1961 and duly recorded in Book 3942, Page 472 (Exhibit No. 2A).

4. After compliance with the procedures of the low value tax lien foreclosure procedure (see Exhibit No 2D, the treasurer's statement dated November 27, 1963 and recorded in Book 4126, Page 422) the premises were conveyed to the Town of Holbrook by instrument dated December 31, 1963 and recorded in Book 4132, Page 432 (Exhibit No. 2B). Subsequently, the Inhabitants of the Town of Holbrook conveyed the premises to Piazza by deed dated September 12, 1968 and recorded in Book 4542, Page 639 (Exhibit No. 2).

5. Piazza and the plaintiff entered into a purchase and sale agreement (Exhibit No. 7) on March 8, 1988 (extended to December 23, 1988), wherein Gaudette agreed to buy Lot 900 from Piazza on the express condition that he use "his best efforts to obtain a Building Permit for the construction of a residence on said premises."

6. At the auction where Piazza acquired title to Lot 900, Lot 856, which shares a common boundary with the locus, was purchased by Peter George and Francis M. Gordon to whom it was conveyed by the Town acting through its Selectmen by deed dated September 12, 1968 and recorded in Book 4542, Page 643; Lot 856, like Lot 900, was the subject of a tax taking by the Town of Holbrook in 1961 recorded in Book 3942, Page 455. See also Treasurer's Deed recorded December 31, 1963 in Book 4132, Page 432, which completed the low value tax foreclosure pursuant to G.L. c. 60, §79, all of the instruments in the chain of title to Lot 856 being marked Exhibit No. 1. The taxpayer from whom Lot 856 was taken was Charles F. Archibald who had acquired Lot 856 from said Fred E. Kroker et al by deed dated September 10, 1951 and recorded in Book 3034, Page 100. In 1975 Peter George and Francis M. Gordon conveyed Lot 856 to Neil H. Hammond and Kathleen M. Hammond by deed dated March 20, 1975 and recorded in Book 5114, Page 731 (Exhibit No. 1). In 1977 the Hammonds applied for and obtained a variance from the Holbrook Zoning Board of Appeals on March 31, 1977 for relief from "the land space requirements so as to permit the construction of a dwelling upon an undersized lot located at 54 Summit Road, Holbrook, Mass." (Exhibit No. 8). Unlike the Piazza and Gaudette applications, no one objected to the Hammond's proposal which sought to erect a 24' x 30' home fronting on Indian Road. [Note 2]

7. Lots 900 and 856 each measure 5,000 square feet (fifty feet by one-hundred feet) in area and are corner lots in a heavily built neighborhood. The lots were created as part of the subdivision shown on the plan of Holbrook Grove referred to in paragraph 2. Lot 900 is bordered westerly for one-hundred feet by Indian Road and southerly for fifty feet by Hawthorne Road. Lot 856 shares Lot 900's fifty foot northerly lot line and is bordered northerly for fifty feet by Summit Road. It is also bordered westerly for one-hundred feet by Indian Road. Each forms a perfect rectangle as do virtually all lots shown on Exhibit No. 3. As the area has been developed during the years, some homes are situated on as much as 10,000 square foot lots while a number of improved lots are as small as 5,000 square feet. Few vacant lots remain.

8. The land is located in the Residential III zoning district. Upon adoption of zoning in 1954, the district first required a minimum lot size of 7,500 square feet, and the Town designated existing undersized lots as "grandfathered" unless contiguous lots were held in common ownership, in which case the minimum area requirement applied. In 1954 there appears to have been no applicable provisions in Chapter 40A of the General Laws to cover the situation, but I have set forth in the footnote the provisions of section 5A of Chapter 40A first inserted by St. 1958, c. 498, as amended through 1961 [Note 3] which provided the framework in the enabling act. The current provisions of the Zoning Enabling Act which affect undersized lots are found in G.L. c. 40A, §6. The first sentence of the fourth paragraph of §6 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 and 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."

9. Piazza filed an application for a variance in November, 1986, after applying for and being refused a building permit on November 20, 1986 to erect a 24' x 30' residence on Lot 900 (Exhibit No. 6A). The application sought "a variance of left side lot 11 ft. to build a 24 ft. wide single family dwelling. Keeping a distance of 15 ft. on right side of lot away from street." Unlike the Hammonds' experience, several abutters appeared at the duly convened public hearing to speak in opposition to the proposed structure. The Board's decision, which is in essence the minutes from the public hearing, then states that "[t]he petition is taken under advisement and the Board considers the application" (Exhibit No. 6B) The decision goes on to describe the Board's deliberations and the Board's unanimous vote that the application did not meet the statutory prerequisites by reciting the language found in G.L. c. 40A, §10. A vote then was taken denying the variance. Piazza did not request a variance as to the lot size since it was assumed that the lot was buildable.

10. After the plaintiff and Piazza entered into a purchase and sale agreement, the plaintiff filed with the Building Inspector an application for a permit to build (Exhibit No. 9) a structure which was to be 20 feet by 30 feet, smaller in size than that for which his seller had sought permission. It was at this time that the question of the size of the lot first was raised. In his application to the ZBA the variance was sought from several provisions of the Holbrook Zoning By-law, but in fact the only apparent violation, if it is one, is as to the minimum lot size. It was on this basis that the application for a variance was presented to the Board, and it was the size of the lot which governed its decision. It is unclear whether an appeal from the Building Inspector's decision also was filed. The Board considered the fact that the second application for a variance was made within two years of the denial of the Piazza request, but the ZBA decided to consider the petition on substantive grounds.

11. A public hearing on the plaintiff's petition for a variance was duly held, after proper notice given, on November 9, 1988. After the conclusion of the testimony the chairman of the ZBA announced that the matter was taken under advisement and that the interested parties would be notified of the Board's decision by mail in a week to ten days' time; those opposed to the variance left the meeting before those in favor. The practice of the ZBA is to make an announcement that the matter is taken under advisement after the conclusion of the testimony when there is more than one public hearing scheduled for the same evening. It is unclear whether the Board then announces that its deliberations and voting will take place at the end of the last public hearing which in fact is the practice which it pursues.

12. The decision of the Board which was received in the Town Clerk's office on November 18, 1988 sets forth that the Zoning Board of Appeals with three regular members and an alternate held a public hearing on the Gaudette request for a variance and summarized the testimony of the parties who appeared. The minutes of the meeting conclude with the petition having been taken under advisement and then the sole aspect of the decision appears under the heading "Finding". "The Board is of the unanimous opinion that 1), the Petitioner did not establish substantial difference from the original Petition, and that, 2), to allow this petition would be detrimental to the neighborhood, would not be in the best interest of the community, would derogate from the intent of the zoning ordinance and that literal enforcement of the zoning ordinance would not serve substantial hardship on the Petitioner.

Upon motion duly made and seconded, it was

Voted: That The Building Inspector's denial be upheld and that the Petitioner be denied the variance requested."

The ZBA raises but does not strongly press the question as to the plaintiff's standing to apply for the variance and to appeal from the adverse decision of the Board. Since the plaintiff is named in a purchase and sale agreement which has obviously been at least orally extended by the parties thereto, the plaintiff is aggrieved by the Board's denial of his application and thus has standing to appeal to this Court, Carson v. Board of Appeals of Lexington, 321 Mass. 649 (1947).

The chairman signed the decision, but it does not appear from the text which of the three members plus the alternate in attendance in fact voted although it would seem that since the vote was unanimous, this may be immaterial. There is serious question as to whether the decision meets the mandate of G.L. c. 40A, §15 where the statute requires the following:

The board shall cause to be made a detailed record of its proceedings, indicating the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and setting forth clearly the reason or reasons for its decision and of its official actions, ...

Clearly the decision at best is a shorthand version of what the statute requires and alone would be sufficient reason to consider a remand. However, there are other important questions raised by the case.

The original application by Piazza to the ZBA requested a variance based only on the size of the house, not the size of the lot which was not an issue originally. The plaintiff's petition seeks only a determination as to whether the size of the lot is grandfathered or if not, whether a variance is warranted, since the building thereon is to comply with the other requirements of the zoning by-law. Accordingly the matter for which a request now has made is not the same appeal, application or petition which was unfavorably acted upon previously. The provisions of G.L. c. 40A, prohibit a favorable action on an appeal, application or petition which had been unfavorably and finally acted upon by the permit granting authority within two years without a finding that there had been specific and material changes in the conditions upon which the previous unfavorable action was based. This section is inapplicable here, because different relief was sought in the two applications. The Board recited in its minutes that it was not influenced by the question as to the applicability of the moratorium, but it is unclear to me that this in fact is the case. This is one reason for remanding the matter to the Board for further hearing. The basic reason for the remand, in addition to the question both of the lapse of the two years and the adequacy of the decision, is the Board's failure to consider the grandfathering of the lot in question and the relief granted to the adjoining property owner who purchased under the same circumstances as the current record owner of Lot 900.

It has been settled since the decision in Adamowicz v. Ipswich, 395 Mass. 757 , 762-63 (1985) that the recording referred to in §6 is the most recent instrument of record prior to the effective date of the zoning change from which the exemption is sought. This result is in harmony with Sieber v. Zoning Board of Appeals of Wellfleet, 16 Mass. App. Ct. 985 (1983) where the same result was reached. At the time the developer of Holbrook Grove conveyed Lot 900 and the adjoining Lot 896 to separate parties there was no zoning by-law in the Town of Holbrook. These lots each contained 5,000 square feet. Subsequently, the Town first adopted in 1954 a zoning by-law which is said to have required a minimum area of 7,500 square feet, but the original by-law was not introduced into evidence and indeed may be difficult to locate. Thereafter counsel contend that the by-law was amended in 1968 (Exhibit No. 5) to increase the minimum lot size in the zoning district to 10,000 square feet which it is represented is the present provision applicable to the locus (see Exhibit No. 4 for the current by-laws. A 1968 version also was introduced as Exhibit No. 5, but it is unclear if it is an official copy and when any amendments were enacted). As I read the by-law, I cannot find a district with a minimum lot size of 10,000 square feet, but I think this makes no difference in the result which should be reached by the Board. Under Adamowicz [Note 4] each of the lots was protected in 1954 when the zoning was enacted which required a minimum lot size of 7,500 square feet. There is no question that the 5,000 square foot lot would have continued as buildable no matter what increases thereafter may have adopted in the minimum lot size if title to Lots 900 and 896 had remained separate. It is unclear from the language of §5A or §6 what the effect is of the later acquisition of an adjoining lot on the provisions as to the grandfathering. In particular, it is a question in the present case as to whether the Town's technical acquisition of title to the two lots by the foreclosure of the equity of redemption of the individual owners thereof through the administrative procedure found in G.L. c. 60, §79 constituted a merger and required the selectmen in conveying the property either to combine the two lots to comprise a buildable lot or at the very least to announce at the sale that the lots were no longer entitled to protection. A more basic question then is whether the acquisition of title to tax title lands by municipality invokes the doctrine or merger and requires that the lots be treated as having become one (see Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658 (1965)) or whether in view of the public policy inherent in returning properties to the tax rolls the lots retain their zoning characteristic prior to the technical acquisition by the town of the title thereto. There appears to be no Massachusetts case law on this subject.

It is clear that the state is immune from municipal zoning by­laws absent any statutory provision to the contrary, and the rule applies as well to any entity or agency created by the Massachusetts legislature. The rule applies to county government, to the Massachusetts Turnpike Authority, to other state agencies, all as explained at length by Chief Justice Hennessey in County Commissioners of Bristol v. Conservation Commission of Dartmouth, 380 Mass. 706 (1980). It has usually been held, however, that a zoning by-law may apply to the town if that is the town's intention. See, for example, the case of Pierce v. Wellesley, 336 Mass. 517 (1957) and Sellors v. Concord, 329 Mass. 259 (1952). There is nothing in the present case to suggest whether the Town of Holbrook intended the zoning by-law to apply to lots acquired by it in its tax title account and thereafter sold to third parties. On consideration of the nature of the tax title statutes and the foreclosure proceedings thereunder I find and rule that for the purposes of the sale thereof the properties retain their zoning classification in effect immediately prior to the Town's acquisition and that where as here two adjoining lots separately owned by individual taxpayers are acquired by the Town, there is no merger, and each is treated as if it were still the property of the individual taxpayer so far as the zoning by-law is concerned. Accordingly I find and rule that the lots were grandfathered by the provision of the Holbrook Zoning By-law as well as by the provisions of G.L. c. 40A, §5A under the predecessor to St. 1975 c. 808 and by the present §6. Therefore the Board should have granted the petition for variance as a matter of law. It also should have considered quite apart from the complicated legal question presented by the grandfathering which does not seem to have been dealt with by the Board in its decision at all the equities owed to Piazza in this situation. The Town acquired title, the Town sold it at auction, the predecessor Zoning Board of Appeals granted a variance to the owner of the adjoining lot, and the applicant was entitled to similar relief.

I move now to the question of the open meeting law, G.L. c. 39, §23A et seq. The plaintiff raises as a reason for a remand to the Board its failure to comply with the statutory procedure in that it completed its deliberations and voted on the relief without informing those in attendance at the public hearing portion of the open meeting that this was the procedure to be followed. While there is some doubt as to exactly what the Board did, I have adopted the plaintiff's position for the purpose of the discussion. The defendant contends that any relief pursuant to the open meeting law is barred by the short statute of limitations. It is true that Chief Justice Hennessey in Benevolent and Protective Order of Elks, Lodge No. 65 v. City Council of Lawrence, 403 Mass. 563 (1988) held that a vote of a public body becomes known as soon as it is taken and that consequently the time for the filing of a complaint runs from that time. The law requires that the validity be raised within twenty-one days of knowledge of the action. Conversely G.L. c. 40A, §17 provides for a twenty day statute of limitations, but it commences to run when the Board's decision is filed in the Office of the Town Clerk. Yaro v. Board of Appeal of Newburyport, 10 Mass. App. Ct. 587 (1980) deals with the applicability of the open meeting law to the hearings of the Zoning Boards of Appeal. In Yaro it was held that the law applies not only to the public hearing portion of the meeting, but it applies also to the Board's deliberations and vote although the public is not entitled to participate in the latter portion of the procedure. Yaro further makes it clear that the actual writing of the decision need not be done in public. As Justice Porada said in Yaro "Sections 23A and 23B do not require a board to hold a public hearing for the purpose of reducing to writing a decision reached at a meeting which was open to the public and where accurate records of the meeting are kept and the substance of the decision was made known to the public" (p. 591). In the present case the Board without notifying the attendees that it would conduct the deliberations and vote later in the evening violated the law. Whether the plaintiff is required by virtue of the short statute of limitations to bring an original complaint under the open meeting law and the second appeal under G.L. c. 40A, §17 has never been expressly decided. It is entirely possible that the timing might be such that the two could not be done together without running afoul of one statute or another. Nevertheless it would be violative of judicial economy to suggest that two separate actions be maintained to question ultimately the same result. In the present matter I need not decide this seeming conflict since I am in any event remanding the matter to the ZBA for a reconsideration of its decision in the light of my findings.

The Land Court will retain jurisdiction.

Judgment accordingly.