MISC 147997

June 27, 1991

Norfolk, ss.



This is an appeal from a decision of the Stoughton Zoning Board of Appeals (the "Board") upholding a ruling of the Town's Building and Zoning Inspector, Robert Grover ("Grover"), that a building permit issued to the defendants John and Denise Kotlik (the "Kotliks") was properly issued. Plaintiff argues that under applicable Stoughton zoning and by application of the doctrine of infectious invalidity, the defendants Kotlik should not be allowed to build on their lot. I find and rule to the contrary.

Plaintiff and the Kotliks moved for Summary Judgment pursuant to Mass. R. Civ. P. 56. Plaintiff submitted her own affidavit and that of Helen Campanario, plaintiff's sister. Defendants submitted an affidavit of the defendant John Kotlik. All parties filed memoranda, and counsel argued both motions on December 27, 1990. Settlement negotiations took place through the middle of May, 1991 but came to naught.

On the basis of all the foregoing and the pleadings, I find and rule that there is no genuine issue as to any material facts and further find and rule as follows:

1. Mary Zabrosky owned a lot (the "Original Lot") in Stoughton having approximately 56,522 square feet. That lot is comprised of the two areas shown as Plot lA and Plot 1 on a plan entitled "Plan of Land in Stoughton, Norfolk County, Mass." by Land Surveys Incorporated dated July 6, 1989, a copy of a portion of which is attached hereto (the "1989 Plan").

2. In 1968, by deed recorded at Norfolk Deeds at Book 4494, Page 63, Mary Zabrosky conveyed a portion of the Original Lot to her mother-in-law, Agnes Zabrosky. The portion conveyed is shown as Plot lA on the 1989 Plan ("Plot lA") and contains 23,556 square feet. The remainder of the Original Lot is referred to hereinafter as "Plaintiff's Lot".

3. At the time of the 1968 conveyance the Stoughon Zoning By-law provided in pertinent part:

No lot shall be changed in size, shape or ownership so that the height, area, yard, or off-street parking requirements herein prescribed are no longer satisfied. By-Law sec. 5-2.

The lot or yard areas required for any new building or use may not include any part of a lot that is required by any other building or use to comply with any requirements of this By-Law, nor may these areas include any property of which the ownership has been transferred subsequent to the effective date of this By-Law if such property was a part of the area required for compliance with the dimensional regulations applicable to the lot from which such transfer was made. By-Law sec. 4-1.

Comparable, although not identical, provisions appear on the current Zoning By-law as Sections VI (D) and VI (C) respectively.

4. Under the zoning in effect at the time of the 1968 conveyance the Original Lot was in a "Residence A" District, which required a 125' minimum lot width. The Original Lot complied with that requirement but neither Plaintiff's Lot nor Plot lA complied; by dividing the complying Original Lot, Mary Zabrosky created two non-complying lots.

5. In 1978, Agnes Zabrosky died and Plot lA eventually passed to defendants John and Denise Kotlik. In 1980, Mary Zabrosky died and Plaintiff's Lot, with dwelling thereon, passed to plaintiff. Plaintiff and John Kotlik are cousins, Agnes Zabrosky being their grandmother.

6. In 1988, the Kotliks applied to the Board for three variances (lot area, width, frontage) to build a single family home on Plot lA. The Board unanimously granted the variances but the Board's decision was annulled by this Court. See Murphy v. Savage, Miscellaneous Case No. 127006.

7. Thereupon the Kotliks acquired two additional pieces of land, Lots A and B as shown on the 1989 Plan, to add to Plot lA to assemble a house lot (the "Kotlik Lot"). See Norfolk Deeds, Book 8421, Page 48. The Kotliks presented the 1989 Plan to the Stoughton Board of Health and the Stoughton Planning Board, where they received an ANR designation.

8. In February 1990, defendant Grover issued to the Kotliks a "foundation only" building permit for construction of a single family home on the Kotlik Lot.

9. Upon learning of permit issuance, plaintiff through her attorney protested to Grover, arguing that the Kotliks did not have a legal building lot. By letter dated May 4, 1990 Grover disagreed and refused to rescind the building permit.

10. Plaintiff appealed to the Board, seeking the same relief she had sought from Grover. On June 21, 1990, the Board voted to deny plaintiff's request for relief. On July 11, 1990, plaintiff filed this action seeking annulment of the Board's decision.

11. Plaintiff's Lot and the Kotlik Lot are both in a R-20, Residential Suburban B District. That requires lot area of 30,000 square feet, frontage of 100 feet, lot width of 125 feet and a front yard set-back of 40 feet. The definition of "Lot, width" measures lot width at the front yard set-back line.

12. By reference to the 1989 Plan, and ignoring for the moment Sections 5-2 and 4-1 of the By-law, quoted at paragraph 3 above, it appears that the Kotlik Lot complies with the dimensional requirements referred to in paragraph 11 above and that Plaintiff's Lot is deficient with respect to lot width.

13. Plaintiff has the benefit of the second sentence of the second paragraph of G.L. c. 40A, §7, at least as to the ten year provision thereof and possibly as to the six year provision. Neither of those creates a conforming lot, however.

14. Plaintiff cites Alley v. Building Inspector of Danvers, 354 Mass. 6 (1968). Alley involves a person who assembles a conforming lot by snipping off pieces of two adjoining (and theretofore conforming) lots and combining the two pieces to create a conforming lot, but leaving the original two lots nonconforming. A denial of a building permit for the new lot was upheld by the Supreme Judicial Court, illustrating the concept of infectious invalidity.

15. The situation in this action is different. The original conveyance in 1968 was made to placate the grandmother of the parties, who wanted her own parcel as a garden (Plaintiff's Affidavit) and who was unsatisfied with an easement granted to her over the same lot. Both lots resulting from the conveyance were non-conforming.

16. Neither plaintiff nor the defendants Kotlik created this problem; quite literally, they inherited it. Resolution of the problem of the Kotlik Lot will not make Plaintiff's Lot conform and improve its status beyond the protection is already has under G.L. c. 40A, §7 (see above).

17. The Building Inspector could reasonably conclude that the 1968 conveyance did not violate Section 5-2 of the By-law; it did not make Plaintiff's Lot nonconforming as to height, area, yard or off-street parking requirements.

18. The first clause of Section 4-1 of the By-law (concerning any part of a lot that is required by any other building or use) is not applicable where there has been a new lot created, as in this instance.

19. The balance of Section 4-1, which deals with that situation, is as follows:

The lot or yard areas required for any new building or use may not . . . include any property of which the ownership has been transferred subsequent to the effective date of this by law if such property was part of the area required for compliance with thedimensional regulations applicable to the lot from which such transfer was made.

20. There is no suggestion that the yard areas for the Kotlik's proposed new home have any relation to the non-conformity of Plaintiff's lot. It may be argued that the lot area for the new home cannot include the area necessary in 1968 to have made Plaintiff's Lot conforming as to lot width (the only aspect as to which it was made non-conforming by the 1968 conveyance). However, the Building Inspector could reasonably have come to the conclusion that such an interpretation was not required in the facts of this particular case, where the Kotliks and their predecessors were not involved in the type of zoning misbehavior at which Section 4-1 is aimed (illustrated in Alley), where the Kotliks have assembled a conforming lot (the Kotlik Lot), and where there is nothing which the Kotliks can do to make the Plaintiff's Lot conforming. I therefore uphold the Board's Decision upholding the Building Inspector.

21. There is another basis on which I reach the same result. Defendant John Kotlik has submitted an Affidavit indicating that on February 6, 1991 he recorded a deed to him and his wife from the owners of the property on the other side of Lot B, conveying to the Kotliks a rectangular parcel measuring 22 feet along School Street and 40.5 feet deep, in effect pushing Lot B 22 feet further along School Street. That parcel contains 891 square feet. If the width of that parcel, Parcel B, Plot 1A (all belonging to the Kotliks) and the width of Plaintiff's Lot are added together, the result is 259.2 feet, more than twice the required 125 width for each of two lots. Stated differently, for the 1968 conveyance to have left Plaintiff's Lot conforming (based on the measurements from the 1989 Plan), Plaintiff's Lot would have had to extend 12.8 feet further east along School Street, at a depth of 40 feet, thus adding an additional 512 square feet. That square footage, under plaintiff's reading of Section 4-1, would not be available to the Kotliks for lot area, but the Kotlik Lot, with the 891 square feet added, can give away the 512 square feet and still conform, with 380 square feet to spare (30,892 minus 512 minus 30,000). Neither the Building Inspector nor the Board considered the enlarged lot, but in the interests of judicial economy, and since the enlarged lot is not the sole basis of my decision, I have not acceded to plaintiff's objections about the February 6 Affidavit.

Judgement accordingly.