ALEXANDER J. McKENZIE [Note 1] v. ZONING BOARD OF APPEALS of the TOWN OF WAYLAND and WILLIAM McCARTHY, BUILDING COMMISSIONER of the TOWN OF WAYLAND.

Appeal pursuant to the provisions of General Laws Chapter 40A, §17 from a decision of the Wayland Zoning Board of Appeals ("ZBA") denying his application for a special permit to raze two structures presently existing on a large parcel of land containing 147,500 square feet situated on Boston Post Road and Rich Valley Road in said Wayland and to erect a new single family dwelling for his residence. The plaintiff also seeks a declaration by this Court, pursuant to the provisions of General Laws Chapter 240, §40A, that his land, which is shown as lot 11 on the subdivision plan entitled "Subdivision of Land in Wayland, Mass." dated August 12, 1949 by Roland H. Barns & Co. (Exhibit No. 3) is a lawfully existing lot. I have concluded that by virtue of the provisions of General Laws Chapter 40A, §7 the plaintiff's land is treated in substance as a nonconforming lot and has the benfit of the provisions of §6 of said chapter. However, the plaintiff is not entitled to raze the existing structures, but only to make such repairs to them as are outlined later in this decision. If however, the plaintiff obtains the approval of a one lot subdivision from the Wayland Planning Board which also is discussed herein, then he would be free to raze the existing structures and to erect a new home.

A trial was held in the Land Court on February 21, 1990 at which a stenographer was appointed to record and transcribe the testimony. Three witnesses testified: Everett Odell, the plaintiff's immediate predecessor in title; the plaintiff and William F. McCarthy, building commissioner of the Town of Wayland, a named co-defendants with the ZBA. The Town of Wayland is not named as a party, so the declaration sought pursuant to General Laws Chapter 240, §14A would be inappropriate.

Pursuant to a stipulation of the parties twenty-one exhibits were introduced into evidence. During the trial an additional eleven exhibits were introduced into evidence, all of which are incorporated herein by reference for purposes of any appeal.

The parties have stipulated, and accordingly, I so find and rule except as to paragraph 14 where there appears to be an error as follows:

1. The members of the Town of Wayland Board of Appeal who conducted the hearing and rendered the decision on the Plaintiff's application for a special permit which is the subject of this appeal were Paul G. Roberts (Chairman), William A. Sterling (Member) and Chester D. Kahn (Associate Member).

2. The usual place of business of the Board of Appeals for the Town of Wayland is the Wayland Town Building, 41 Cochituate Road, Wayland, Middlesex County, Massachusetts.

3. William McCarthy is the Building Commissioner of the Town of Wayland.

4. On or about September 26, 1988, the Plaintiff made application for a building permit to William McCarthy in order to demolish an existing single family residence and garage in need of extensive repairs and construct a new single family dwelling on the property known and numbered as 128 Boston Post Road, Wayland, Massachusetts.

5. The area of the lot to be covered by the proposed new dwelling is less than that of the existing dwelling and accessory garage building.

6. On September 26, 1988, William McCarthy informed the Plaintiff that he would not issue a building permit because the proposed construction required a special permit as the existing use was nonconforming due to the lack of sufficient frontage on a public or approved way and that said special permit must be obtained from the Wayland Board of Appeals.

7. On September 26, 1988, the Plaintiff filed an application for a special permit with the Wayland Board of Appeals.

8. A hearing was held on the Plaintiff's application for a special permit before the Board of Appeals on October 20, 1988 at 8:30 P.M. Notice of said hearing was published in the Town Crier, a local newspaper, on October 6, 1988 and October 13, 1988, in accordance with statutory requirements.

9. On December 21, 1988, the Wayland Board of Appeals promulgated a decision denying Plaintiff's application for a special permit.

10. According to the Town of Wayland Zoning By-Laws and Zoning Map in effect at the time of Plaintiff's applications and currently, the subject property is located in a "Single Family Residence District" with a minimum lot size requirement of 40,000 square feet and a minimum frontage requirement of 180 feet.

11. The subject property has a lot size of 147,500 square feet and has 15.47 feet of frontage on Boston Post Road (Route 20) and is also accessible by way of a 20 feet wide strip of land fronting on Rich Valley Road.

12. The parcel of land of which the subject property was a part consisted of 490,956± square feet and was owned by Pietro and Louise Bianchi.

13. Between August 4, 1947 and August 12, 1949, the parcel was subdivided into twelve lots by the Bianchi's. The first subdivision plan was prepared on August 15, 1947 and was recorded in the Middlesex County Registry of Deeds South District as Plan Number 1198 of 1947 in Book 7176 Page End. The second plan was prepared on August 4, 1947 and was recorded in the Middlesex County Registry of Deeds South District as Plan Number 558 of 1948 in Book 7286 Page End. A third plan was prepared on August 12, 1949 and was recorded in the Middlesex County Registry of Deeds South District as Plan Number 1284 of 1949 and was recorded in Book 7466 Page 318.

14. The lots were numbered 1, 2, 3, 4, 5, 6, 6A, 8, 9, 10 & 11. Lots 6A, 7, 8, 9, & 10 did not then and do not now border Lot #11. [Note 2] Lot #11 is the subject property, currently known and numbered as 128 Boston Post Road. Lot # 11 then, as it does currently, consisted of 147,500 square feet with 15.47 feet of frontage on Boston Post Road (Route 20) and is accessible by a 20 foot wide frontage on Rich Valley Road.

15. Lots #1, 2, 3, 4 & 5 all front on Rich Valley Road and are bordered by Lot #11 to their rears.

16. Lot #6 fronts on Rich Valley Road and is bordered by Lot #5 to the front side and Lot #11 to the rear side.

17. Lots #1 & 2 were conveyed to different grantees by deeds dated September 13, 1947 and recorded September 13, 1947 (sic, September 15, 1947].

18. Lot #5 was conveyed by deed dated November 23, 1948 and recorded January 13, 1949.

19. Lot #4 was conveyed by deed dated August 9, 1949 and recorded July 11, 1950.

20. Lot #6 , together with Lots #6A & 7, was conveyed by deed dated August 12, 1949 and recorded August 14, 1949 (sic, August 15, 1949].

21. Lot # 3 was conveyed by deed dated May 24, 1949 and recorded May 24, 1949.

22. Lot #11 was conveyed to the Plaintiff's immediate predecessor in title, Everett W. Odell (and his first wife) by deed dated October 31, 1949 and recorded November 1, 1949.

23. Building permits were issued to the following applicants on the dates listed below for buildings on the following lots:

Lot # Date Permit # Applicant

11 7/9/45 NONE Pietro Bianchi

3 4/12/48 368 Louise Bianchi

5 3/23/49 455 Helen Walker

6 & 6A 6/21/49 483 Daniel Bianchi

1 4/28/50 591 William Minty

4 9/20/50 682 Ralph E. Hewitt

2 9/29/52 129 Cosmo J. Caterino

24. Everett W. Odell lived at 128 Boston Post Road (Lot #11) from the latter part of 1949 to the early part of 1988.

25. The Plaintiff purchased 128 Boston Post Road (Lot #11) from Everett W. Odell and his wife on February 4, 1988.

On all the evidence I further find and rule as follows:

26. The Plaintiff, as Trustee of Rich Valley Realty Trust, acquired title to lot 11 by deed dated February 4, 1988 and recorded with Middlesex (South District) Registry of Deeds Book, 18856 Page 415 (Exhibit No. 16). All recording references herein are to said Registry of Deeds. The locus which is lot 11 on the 1949 plan also is shown on a plan entitled "A Plan of land in Wayland, Mass." dated February 14, 1988 by V. T.P. Associates, Inc. which was prepared for the Plaintiff. The plan shows lot 11, the existing buildings thereon (although an apartment attached to the house does not appear) and the footprint of the new dwelling which the Plaintiff wishes to construct. The present access to the house is over the existing drive which is shown on the plan, but the Plaintiff also apparently owns the fee in a twenty foot wide strip leading into the property from Rich Valley Road.

27. Louise Bianchi was a predecessor in title of the Plaintiff's grantor, Everett Odell. Ms. Bianchi at one time owned a tract containing approximately 490,956 square feet of land. She subsequently conveyed out in a series of conveyances beginning in 1947 lots l to 7 inclusive on the recorded subdivision plans. Lot 11 was the last lot to be conveyed, was a portion of the tract on which the house was then as now located and was conveyed on October 31, 1949 by deeds recorded in Book 7499 Page 183.

28. The present house on the premises pre-exists 1938. It is situated in a single residence district which when zoning was first adopted in Wayland in 1934 required a minimum lot size of 20,000 square feet and 110 feet of frontage. [Note 3] Current zoning requires a minimum lot area of 40,000 square feet and at least 180 feet of frontage.

29. Frontage is not expressly defined in the two copies of the Wayland Zoning By-Law introduced into evidence (Exhibit Nos. 18A and 25). Section IX.(g) of the most recent of the two by-laws does permit the required frontage to be on a right of way. IX (g)

30. Upon the conveyance of the last lots on the subdivision plan other than locus, i.e. lots 6, 6A & 7 all to the same grantee on August 12, 1949 lot 11 became nonconforming as to frontage. Prior to this conveyance the frontage along Rich Valley Road had measured in a minimum of about 300 feet (See Exhibit No. 3). Lots 7, 8, 9 & 10, however, did not at the time of the conveyances nor now border lot 11. The stipulation of facts so provides as to lots 6 and 6A, but that appears to be an error since lot 6 and 6A do abut lot 11 and if they had not been conveyed out would have provided sufficient frontage to comply with the 110 foot minimum. Lot 11 in any event has had its present configuration at least since 1949, a period of more than 40 years. A brook forms its northerly boundary along which there is a 30 foot strip reserved for a park at the northerly end of which on lots 7 and 8 there is a 25 foot easement to the Town of Wayland. It therefore seems an inescapable conclusion that the Wayland Town Officials were aware of the subdivision.

31. The March 5, 1941 Wayland Annual Town Meeting adopted Chapter 211, §4 of the Acts and Resolves of 1936, the forerunner to the subdivision control law which was revised in 1947 and in 1953. Prior to the 1953 revision the determination as to whether a way met the requirements of the law to permit the recording of what today is known as "Approval not required for Required (ANR) " Plan fell to the discretion of the register of deeds. The subsequent amendment of the act was to relieve the registers from this burdensome duty and to resolve the question as to the recordability of plans by requiring the owner to obtain an endorsement from the planning board that approval pursuant to the provisions of the subdivision control law was not required. The plans before the Court fell within the time period when the determination was made by the Register of Deeds, and they bear no endorsement by the planning board. If it were not for the lack of frontage reserved for lot 11, the plans indeed would have met the requirements today for such an endorsement.

32. The history of the building permit issued for the homes now existing on the other lots in the subdivision cannot be accurately reconstructed. The town records in this regard consist of log books wherein there is a vague identification of the poperty together with the date, but without sufficient descriptive material as to the work for which the permit was issued.

33. So far as appears, the municipal authorities have never objected to the construction of homes on the subdivision lots or to the original subdivision of the Bianchi land.

34. On August 16, 1966 a building permit was issued to Everett Odell for the purpose of erecting a tool shed on lot 11 (Exhibit No. 13). In 1986, one Jeff Jacobson applied for a building permit to add a second story onto the existing single story dwelling and apparently received the necessary approvals to proceed. The planning board approved the application indicating that no special permit was required. It does not appear that a building permit ever issued.

35. Exhibits 11A - 11C which are 1950 plans show three structures on lot 11. The proposed structure falls partially without the existing footprints of the present buildings. Access to the buildings on lot 11 is via a 15.47 foot wide strip of land running northerly off Boston Post Road and included as part of locus in the deed to the plaintiff. It is referred to on the 1939 Wayland Zoning Map (Exhibit No. 24) somewhat incorrectly as "Right of Way of Peter Bianchi" and is used as a monument for the westerly boundary of a new business district established in 1948 (See Exhibit No. 25). The knowledge of the Town authorities of the access to lot 11 is clear.

36. Rich Valley Road on which locus abuts for 20 feet was taken by the Town of Wayland in 1950. The taking plans are Exhibits 11A - 11C, and they show the three structures on lot 11 as well as single structures on each of lots 3 and 5.

37. In denying the special permit the ZBA found that the house now located on lot 11 predated the adoption of zoning in Wayland but that the nonconformity arose after the zoning by-law had been adopted. The Board concluded therefore that the parcel did not qualify for protection pursuant to General Laws c. 40A §6 or §IV of the local by-law.

38. Prior to his application for a special permit in September of 1988 the Plaintiff earlier in that year had made a similar application which the board allowed him to withdraw without prejudice. It was at this time that he first learned the board considered the subdivision to be illegal and lot 11 of suspect validity.

39. Section V(r) of the Zoning By-Law sets forth the substantive and procedural requirements for a special permit. These provisions track those of §9 of Chapter 40A. The by-law also tracks the provisions of General Laws Chapter 40A §6 as to repairs and alterations to nonconforming structures.

General Laws Chapter 40A §6 regulates nonconforming uses and structures; it does permit in the case of one and two family residences alteration, reconstruction, extension and structural change so long as it does not increase the nonconforming nature of said structure. The section goes on to provide "Pre-existing nonconforming structures or uses may be extended or altered provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change extension or alteration shall not be substantially more detrimental than the existing nonconforming [structure or] use to the neighborhood". The first issue to be addressed is the nonconforming nature of the present structure and the nature of the lot. The ZBA takes the position that the lot is not nonconforming, because the nonconformity was created by the conveyances made by a predecessor in title of the Plaintiff from a lot which had been in conformity. The problem is illustrated by the case of Shaffer v. Zoning Board of Appeals of Scituate, 24 Mass. App. Ct. 166 (1987) where the error was self inflicted although understandable since the remaining lot in that controversy met the frontage and area requirements of the zoning by-law but was deficient in the width thereof where the by-law required a greater minimum width than frontage seemingly a matter of dubious constitutional validity. The present predicament was orchestrated over forty years ago by a predecessor in title to the Plaintiff. After the lapse of such a great length of time it is impossible to determine from the records whether there was any express sanction of the subdivision by the municipal authorities. In any event, the situation has existed for over forty years, and the law would be a poor thing if it now exacted from the bona fide purchaser for value a severe penalty for his purchase of the premises.

The Courts are just beginning to face the question of when a structure or use is nonconforming within the meaning of §6. The problem has very recently been addressed by the Appeals Court in Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527 , (1990) where Justice Kass stated that "the rights attaching to nonconformity pertain to a use extant prior to the commencement of the process leading to adoption of provisions which prohibit that use". In the Mendes decision the Court was dealing with a situation where the property always resumed per use different from that which the plaintiff was making of his locus pursuant to a series of variances. He then sought a special permit after a change in by-law made the granting of further variances in the location unwarranted. The Court found that he was not entitled to the benefits of §6. There was reference in the decision to previous cases where language could be read in such a way as to lead the opposite conclusion, but which the Court now disavows. The case before me, however, is much more similar to Durkin v. The Board of Appeals of Falmouth, 21 Mass. App. Ct. 450 , 453 (1986) where the Court heavily relied on the provisions of General Laws Chapter 40A §7 which contains a six year statute of limitations where a structure is erected in reliance on a building permit. The question in the Durkin case involved the applicability of nonconformity to a federal use of the premises as a post office where a question arose as to whether a governmental immunity changed the fact that if it were not for the nature of the user, i.e. United States Government, the use would have been forbidden and thus nonconforming.

The statute considered in the Durkin case has been again amended to provide a broader statute of the limitations after the expiration of 10 years. It now provides as follows:

[N]o action, criminal or civil, the effect or purpose of which is to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or any by-law adopted thereunder . . . shall be maintained, unless such action, suit or proceeding is commenced and notice thereof recorded in the registry of deeds . . . within ten years next after the commencement of the alleged violation.

This amendment of section 7 is the recognition by the legislature of protection that should be afforded to buildings which have been in existence for at least ten years even though they may not have been in compliance with the law when first constructed. It is clear, therefore, that the existing structures cannot be ordered removed by this Town of Wayland nor does the Town intend to do so. The same policy however, that permits certain extensions to nonconforming single family homes should allow improvement to buildings which have been made inviolate by §7. It would certainly not serve the public weal to allow the present home to continue to deteriorate when the legislative policy as to nonconforming structures allows them to be altered, reconstructed, extended or structurally changed so long as the nonconforming nature is not increased. This Court in several instances accordingly has allowed additions within the existing footprint to nonconforming structures based on the authority of Willard v. The Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987). The General Court must have intended a similar result in instances where a home is protected by section 7.

Accordingly, I find and rule that the Plaintiff may repair, alter and reconstruct the existing buildings, but that this must be done within the present footprint. If he wishes to make changes to the footprint, any such extension or alteration will require a finding by the special permit granting authority that "such change, extension or alteration is not substantially more detrimental than the existing nonconforming (structure or] use to the neighborhood".

I therefore will remand the matter to the Zoning Board of Appeals to reconsider its decision in the light of my holding.

Sections IV E and F of the Wayland Zoning by-law address the situation where a nonconforming structure is damaged or destroyed presumably by fire or other casualty. Subparagraph E gives the right to rebuild or restore "so long as the rebuilding or restoration conforms precisely in size, configuration and extent of use to that which existed prior to the damage or destruction". Subparagraph F gives the Board of Appeals discretion to issue a special permit "for any changes in size, configuration and extent of use in a damaged or destroyed non-conforming structure, provided that the Board shall find that such changes shall not be substantially more detrimental to the neighborhood than the existing non-conforming use".

The Plaintiff here seeks permission to raze the existing home and reconstruct it on a different footprint which is smaller than the existing structure. Original neighborhood objections disappeared when it was learned that a further subdivision of the large area of land owned by the Plaintiff was not contemplated. There was an abutter who unsuccessfully sought to intervene in this action because of concerns relative to the screening of the new house, but there appear to be no continuing neighborhood objections to the plans of the Plaintiff. However, the Plaintiff is faced with the problem under General Laws Chapter 40A §6 and the applicable by-law. As I have herein before stated I have found and held that the Plaintiff may alter, reconstruct, extend or make structural changes to the present residence and appurtenant buildings so long as the footprint is honored.

The Massachusetts Courts have not permitted the complete razing of an existing nonconforming structure absent some unusual provision in a by-law. Commonly a Town's by-law may allow such relief if there has been substantial damage or destruction by fire or other casualty. In Wayland, as noted above section IV E provides that in such a case a structure may be rebuilt or restored as of right "so long as the rebuilding or restoration conforms precisely in size, configuration and extent of use to that which existed prior to the damage or destruction". In instances where the petitioner seeks to change the size, configuration and extent of use in a damaged or destroyed nonconforming structure, the by­law authorizes but does not require the Board of Appeals to grant him such a right. There is nothing in the General Laws which requires a Town to grant the right to raze and rebuild a property which is not a casualty loss. The only case appears to be Angus v. Miller, 5 Mass. App. Ct. 470 (1977) decided under the version of Chapter 40A in force prior to the enactment of St. 1975, Chapter 808, but indicative of a result that would be reached today. I have concluded in Lock-up Development Corporation v. The Board of Appeals of Town of Danvers, Land court Misc. Case No. 128326, that there is nothing in §6 as it presently exists which requires a Town to authorize the razing of a nonconforming structure which has not met with casualty. The question has not as yet arisen as to whether a Town may grant such relief. See Werner v. The Board of Appeals of Harwich, 2 Mass. App. Ct. 647 (1974).

The Plaintiff is not, however, without remedy. He may apply for a variance to raze the existing structure and to build the new home which he desires if his counsel is of the opinion that the statutory requirements set forth in §10 of Chapter 40A can be met. Another avenue of relief would be to prepare a one lot subdivision which would utilize the existing twenty foot wide strip leading from Rich Valley Road at the end of which the Plaintiff could construct a cul-de-sac or turnaround which would provide the required frontage of 180 feet under the present zoning by-law. See Gordon v. Zoning Board Appeals of Lee, 22 Mass. App. Ct. 343 , 350 and at 351, note 8 (1986); Arrigo v. Board of Appeals of Franklin, 12 Mass. App. Ct. 802 , 805 and 808 (1981) for discussion of this avenue of relief. The Plaintiff would have to be prepared to comply with the applicable rules and regulations of the Wayland Planning Board or to obtain waivers thereof which in view of the long history of the existence of this large lot the board may be favorably inclined to grant.

Judgment accordingly.