MISC 127604

May 7, 1991

Plymouth, ss.



This complaint is an appeal pursuant to the provisions of G.L. c. 41, §81BB from a decision of the Duxbury Planning Board (the "Board") refusing to endorse a plan submitted by the plaintiff and entitled "Plan of Land in Duxbury, Mass. Prepared for Joyce R. Huff" dated March 4, 1988, by Vautrinot & Webby (Exhibits Nos. 8 and 8A) (the "Plan") as "approval under the subdivision control law not required" in accordance with the provisions of G.L. c.41, §81P. The plaintiff rests her case on a little known provision of §81L of said chapter which includes within the non-subdivision category 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 town where the land lies into separate lots on each of which one of such buildings remains standing. Citgo Petroleum v. Planning Board of Braintree, 24 Mass. App. Ct. 425 (1987). The Planning Board disputes the existence of the type of building required by the statute or the Citgo decision to bring the exception into play. The decision set forth below also states other reasons for the Board's conclusion that the Plan requires Board approval.

A trial was held at the Land Court on February 12, 1991 at which a stenographer was sworn to record and transcribe the testimony. In all, twenty exhibits were introduced, some with multiple parts, which are incorporated herein in case of an appeal. Three witnesses testified, Joyce Randall Huff, the plaintiff, Edward Mekjian, a builder in the field of single family house remodeling and Kevin S. McDonald, the Duxbury building inspector. It is unclear as to the plaintiff's source of title, and the extent of her ownership of the tract in question in which her sister and at least two cousins also appear to have an interest. This issue has not been raised by the defendant, and I therefore assume that the plaintiff has standing to pursue this appeal. There appear to be no decisions as yet on this aspect of the Subdivision Control Law.

On all the evidence I find and rule as follows:

1. The plaintiff is seventy-one years old, having been born in 1919, and is a life-long summer resident of Duxbury. The subdivision plan to which reference has been made shows the division of a tract of land on Gurnet Road in Duxbury in the County of Plymouth into five lots. The lots each show an existing cottage thereon together with a twenty foot wide access easement to Duxbury Beach. Four of the lots shown on the Plan have frontage on Gurnet Road, a public way. The fifth lot, Lot 1, apparently is served by Ocean Road, the status of which was not addressed during the trial. The lots do not comply with the present zoning by-law of the Town of Duxbury.

2. The ownership of the tract of land containing approximately 107,500 square feet of which the five lots form a part has been in the plaintiff's family since the early 1900's when it was acquired by her grandfather. No documentary evidence as to the deed into him or to the devolution of the title since his acquisition was before the Court at the trial. It is unclear whether the plaintiff's grandfather's descendants have conveyed various lots among themselves or whether by agreement certain branches of the family have used the cottages exclusively and rented all or some of them to third parties. In any event this is not a major issue in the case.

3. The Town of Duxbury adopted the subdivision control law in 1953. This therefore is the determinative date as to the existence of the buildings on the property. Alfreida F. Cardoza, the Deputy Assessor of the Town of Duxbury, certified to the plaintiff (Exhibit No. 6) that "the following structures have existed continuously on their designated lots from the year 1950 to the present:

Parcel # 211-600-015 (Gurnet Road [)]

Four cottages (Residential buildings) numbers 2, 3, 4 & 5 Gurnet Road plus 1 outbuilding

Parcel # 211 939-100 (Ocean Road)

One cottage (Residential building) . . . . "

4. The Parcel # 211 939-100 appears to be Lot 1 on the Plan, and Parcel # 211-600-015 includes Lots 2, 3, 4 and 5 thereon. The relatively current assessors' records show buildings assessed on each lot at more than a nominal value (Exhibits Nos. 1 and 7A).

5. All the cottages were situated on their present locations, were of their present sizes and were occupied during the summer by 1953 when Duxbury adopted the subdivision control law. All of the structures were built by members of the plaintiff's family other than that on Lot 4 which had been rented as vacant land with the tenant erecting the structure and leasing it on an annual basis. The rentals or the family occupancy of the various cottages were on a seasonal basis only, because many of them had none of the usual amenities and heat, and foundations generally were lacking. The cottages rest principally on sand, and most, if not all, are set on pilings rather than foundations. Many of them were heavily damages by the blizzard of 1978, but they remain in their 1953 location. The plaintiff and her sister, for example, have ceased renting the units which they claim to own since the blizzard which rendered the structure on Lot 2 untenantable. Each of the cottages was flooded during the blizzard.

6. By 1979 the Town of Duxbury had extended "lateral sewers" to that portion of the town on Gurnet Road at locus and beyond; to the north is Marshfield, and to the south is the Powder Point Bridge in Duxbury. There were some municipal services connected to the cottages as some of them had running water and a few had indoor plumbing. Otherwise, the cottages lacked several modern conveniences.

7. Damage from the blizzard required that the cottage on Lot 1 be resheathed with new plumbing installed and electrical fittings replaced. Prior to this reconstruction it had electricity and plumbing and had been continually used as a summer rental property except for a four year period when it was heavily vandalized.

8. The cottage on Lot 2 was built off-site and moved onto the locus in approximately 1945 or 1950. It formerly had electricity, but the electricity has not been restored since the blizzard rendered the cottage uninhabitable. The building must be renovated before electricity can again be provided, and the same is true of the plumbing.

9. The cottage on Lot 3 is known as the "sway-back" because of the dip in its roof line attributed to a flaw in its design as opposed to old age. It has been occupied each summer since being built, and the plaintiff's elderly cousins spend a few days each week during the summer at the cottage despite the fact that it has neither electricity nor indoor plumbing. Edward Mekjian, a witness, observed available lines to the property, but he was unable to ascertain whether the services were connected. This cottage has three rooms, two bedrooms and a general purpose room in which there is a table, sink and stove with a pump for water. In years gone by cooking was done on an indoor kerosene stove. The building is listing to one side as the pilings supporting it are sinking.

10. The cottage on Lot 4 is known as the "flat-top". It was originally placed on the lot in the 1930's when the plaintiff was in high school and has been occupied on a seasonal basis every year since. The building was "owned" by the plaintiff's mother, and it was used as a rental property leased on an annual basis until the plaintiff and her sister purchased the mother's interest. The plaintiff's sister now uses this cottage during the summer. The cottage periodically has been renovated. The plumbing system and electrical fixtures have been upgraded, and a wood burning stove has been added. The cottage was serviced directly by a water line installed between 1945 and 1950 which brought town water to the site as a whole. An outdoor faucet has been used over the years in common by the occupants of the other cottages. During the last three years this cottage has undergone renovations.

11. The cottage on Lot 5, familiarly known as "the shack", has never been rental property and has been used exclusively by the plaintiff's family as a summer cottage. It originally was situated within what is now the layout of Gurnet Road and was used as a shanty to store salt hay harvested by the plaintiff's grandfather. It was relocated to what is now the proposed Lot 5 and has been in its present location for as long as the plaintiff can remember, which she estimated was about 65 years or 1925. The cottage has not been relocated since the adoption of the subdivision control law in 1953 and has continuously been used as a summer residence. There is no heat, but the cottage does have electricity, running water and indoor plumbing. Prior to 1981 there was only an outhouse on Lot 3 which serviced this lot as well.

12. The Duxbury Planning Board notified the plaintiff by Certificate of Notification dated March 25, 1988 that the Board unanimously disapproved the Plan "because, as presented, it constitutes a subdivision and, in addition

1. It does not comply with the statutory requirements of Chapter 41, Section 81L;

2. No evidence was submitted to substantiate that the structures were standing prior to 1950 when the Subdivision Control Law was adopted;

3. There was no evidence to prove that the buildings were substantial;

4. Lot #3 has no frontage or suitable width to provide adequate construction to provide vehicular access to the lot."

This appeal then followed.

The sole issue in this action is a determination as to whether the Plan was entitled to an ANR endorsement or whether the contemplated division shown thereon was such that it required Board approval.

Many of our seashore resort communities have a legacy of small summer homes constructed in many instances nearly one hundred years ago and not now in compliance with today's building and safety codes, as well as violative of the zoning ordinances or by-laws now in effect. These problems are immaterial, however, so far as a determination as to whether the plaintiff was entitled to an "ANR" endorsement of her plan is concerned. It seems clear that the decision of the Planning Board, however logical it may seem on the facts here, is not in accordance with the plain language of G.L. c. 41, §81L and must be annulled, and the matter remanded to the Board for the statutory endorsement.

In this de novo proceeding the preponderance of the evidence established that the structures were standing in 1953 (and 1950 as well), the year when Duxbury adopted the subdivision control law (not 1950 as the Board's decision states). Accordingly reason no. 2 as set forth in the Board's Certificate of Notification cannot be supported.

G.L. c. 41, §81L excludes from the definition of a subdivision "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 remain standing". The Plan contemplates just such a division. Each primitive cottage was in existence and located on the tract in 1950, three years before the town accepted the Subdivision Control Law, and they remain there today. Both the testimony of the plaintiff and the records of the assessors' office establish the existence and location of the buildings in the years gone by. They generally have been continually used although severe weather and vandalism have taken their toll, and at least two of the cottages now need extensive repairs.

There has only been one appellate decision considering this provision of section 81L. In Citgo v. Planning Board of Braintree, 24 Mass. App. Ct. 425 (1987) Justice Armstrong commented that this provision had received little judicial attention "[p]erhaps [because] the existence of the exclusion is not widely known; perhaps it is so clear as not to require interpretation." In Citgo the Appeals Court held that the plain language of the exclusion required endorsement of the plan. Citgo applies here. It is true that Justice Armstrong left for another day the question as to what constituted a building within the meaning of the exception. The buildings in Braintree clearly were substantial, but the section in question is not framed in those terms. While the Courts or the General Court ultimately may impose a requirement that certain minimum standards be met, the present language is silent in this regard. The cottages here are neither detached garages, chicken houses or woodsheds and meet the statutory test.

The final ground for the Board's decision, that Lot 3 has no frontage or suitable width to provide adequate construction to provide vehicular access, was dismissed by the Appeals court in Citgo, where it was stated at page 426:

The exclusion for lots with two or more buildings is distinct from the more commonly used exception, also in §81L, for plans where every lot has the requisite frontage on a public way or other suitable way as defined in the statute. Thus, the board's argument that the lot . . . lacks adequate frontage misses the point. If plans under the provision in question must also qualify under the frontage exception, then the provision in question is surplusage.

Sustaining the plaintiff's argument that the Plan does not show a subdivision is only the first step in a long path which the plaintiff and her relatives must traverse to own the lots separately of record and to secure occupancy permits. However, G.L. c. 41, §81L entitles her on the facts I have found to the appropriate endorsement, and I remand the matter for this action to be taken.

Judgment accordingly.