RALPH T. MEUSE and ALICE K. MEUSE vs. STEPHEN G. TUCKER, JOHN A. JAREMA, ARDITH A. WIEWORKA and SALLY C. NITZCHE, as they are the members of the BOARD OF APPEALS OF THE TOWN OF READING.

Plaintiffs, appealing under G. L. c. 40A, §17, seek to annul a decision of the Zoning Board of Appeals (the "Board") of the Town of Reading (the "Town") denying plaintiffs a special permit under the Zoning By-Laws (the "By-Laws") of the Town to construct a single family dwelling on land (the "Premises") owned by plaintiffs which does not comply with the Table of Dimensional Controls of the By-Laws.

There was a trial on February 12, 1991, taken before a Court stenographer, who has prepared a transcript. Fourteen exhibits were introduced into evidence and are incorporated in this Decision for purposes of any appeal.

Three witnesses testified: plaintiff Ralph Meuse and Ardith Wieworka and Stephen Tucker, both members of the Board. In their Joint Pre-Trial Memorandum filed January 25, 1991 and a Stipulation filed May 1, 1991, the parties stipulated to various facts, described below.

On the basis of the stipulated facts and all the evidenc, I find and rule as follows:

1. Plaintiffs, Ralph T. Meuse and Alice K. Meuse (hereinafter the "Meuses" or "plaintiffs"), are the owners of the property located on Auburn Street in Reading, MA shown as Lot 97 on Reading Board of Assessors' Plat 101 (the "Premises"). The Premises are also shown as Lot A2 on Plan No. 11306B filed with the Middlesex South Registry District of the Land Court (all registration references in this Decision are to that Registry District) and is described in Certificate of Title No. 129315 in Book 776, Page 165.

2. The Premises are located in a Residence S-10 zoning district under the By-Laws. According to Section 5.1.2. "Table of Dimensional Controls" of the By-Laws, in an S-10 zoning district the minimum lot size is 10,000 square feet, minimum frontage is 80 feet, minimum front yard is 20 feet, minimum side yard is 15 feet, minimum rear yard is 20 feet, the maximum percentage of coverage of lot is 25% and the maximum building height is 35 feet.

3. The Premises do not comply with the Table of Dimensional Controls of the By-Laws as a buildable lot with regard to area (10,000 square feet required - 5,399 actual) and frontage (80 feet required - 75.78 actual), and on May 16, 1988 and September 13, 1990 the Meuses were denied building permits to construct a single family dwelling on the Premises because of non-compliance with the Table of Dimensional Controls.

4. On June 24, 1988 the Meuses appealed the Building Inspector's May 16, 1988 decision and applied for a special permit under Section 6.3.1.3. of the By-Laws.

5. Section 6.3.1.3. of the By-Laws provides as follows:

6.3.1.3. INTENT

It is the intent of this paragraph to provide a limited, controlled and reasonable vehicle for lots which do not conform to existing standards to be built upon and prevent unfair or arbitrarily unbalanced sacrifices to be required of a few individuals when the resulting benefit to the public good is minimal and the damage to the public good by providing an exemption is also minimal.

The Board of Appeals may grant a Special Permit to build upon a non-conforming lot for one family use in any district permitting such use provided the applicant establishes:

- at the time of its recording or endorsement, whichever occurred sooner, the lot conformed to the then existing requirements;

- that lot was held in common ownership with adjoining land on February 2, 1978;

- the lot has at least five thousand (5,000) square feet of area and fifty (50) feet of frontage;

- the area and frontage of the lot are similar to or greater than the area and frontage of a substantial number of built-upon lots which are located wholly or partly within three hundred (300) feet of the property line and in the same district;

- all abutting lots, excepting lots in recreational, public or quasi-public use and lots located in an overlay district, are built upon, and such lots have at least five thousand (5,000) square feet of area and fifty (50) feet of frontage, or the lot and each abutting vacant lot (s), irrespective of ownership, has at least eighty (80) percent of the minimum area and frontage required in the district; and

- all zoning requirements other than area and frontage are met.

6. On September 14, 1990 the Meuses applied to the Board for a special permit under Section 6.3.1.3. of the By-Laws.

7. After a public hearing held on October 4, 1990, the Board in case No. 90-21 voted two in favor and one opposed to grant the Meuses a special permit for the Premises under Section 6.3.1.3. of the By-Laws. Since the decision needed to be unanimous, the special permit was denied. Pursuant to Section 7.4.1.1. of the By- Laws, the Board consists of three members and two associate members, and the affirmative vote of three members is required to grant a special permit.

8. The Board's October 4, 1990 decision was filed with the Town Clerk's office on October 16, 1990 and notice of the within appeal was filed with the Town Clerk on October 30, 1990.

9. The deed dated May 20, 1960, Lot 106 on Assessors' Plat 101 was conveyed to Francis X. Kyle and Virginia M. Kyle, husband and wife, as tenants by the entirety; Lot 106 was conveyed by Francis X. Kyle and Virginia M. Kyle to Virginia M. Kyle by deed dated July 31, 1985 and then Virginia M. Kyle conveyed Lot 106 to Kathleen T. Dempsey as Trustee of the Indenture of Trust for Francis X. Kyle and Virginia M. Kyle by deed.dated November 14, 1990. Lot 98 on Assessors' Plat 101 was conveyed by the Treasurer of the Town to Francis X. Kyle and Ralph T. Meuse by deed dated October 18, 1979; and thereafter, Lot 98 was conveyed by Francis X. Kyle and Ralph T. Meuse as tenants-in-common to Virginia M. Kyle on December 9, 1988. Subsequently, Virginia M. Kyle conveyed Lot 98 to Kathleen T. Dempsey as Trustee of the Indenture of Trust for Francis X. Kyle and Virginia M. Kyle by deed dated November 14, 1990.

10. Plaintiffs live in a house at the corner of Highland and Auburn Streets. Their house is on Lot 96, Assessor's Plat 101. The Premises are the abutting lot, Lot 97 on Assessor's Plat 101, i.e., the Premises are one lot in on Auburn Street from the corner. Plaintiffs' garage now straddles the boundary line between the two lots and would be removed if plaintiffs are allowed to proceed with their plans. Plaintiffs' ownership of both lots is presumably the reason Plaintiffs' may not claim, as to the Premises, the protection of the first sentence of the fourth paragraph of G.L. c. 40A, §6.

11. Counsel agreed during trial that all the conditions of Section 6.3.1.3. were satisfied except the fourth and fifth.

12. Exhibit Nos. 11A and 11B are Assessors' Plats showing Locus and the lots within the three hundred foot limit referred to in the fourth condition. Mr. Meuse testified, and counsel for both parties agreed, that of all the lots within the three hundred feet, all are built upon except the Premises and the 976 foot lot, #98, immediately adjoining.

13. If "similar" is taken as "the same" (as the Board did in making its calculations), only four lots (Lot 22 on Plat 102 and Lots 109, 110 and 111 on Plat 101) qualify as having area and frontage less than the Premises. Not counting the small lot (#98), and not counting the Premises, there are 22 lots on Plat 102 and 22 lots on Plat 101, for a total of 34.4 out of 34 is 11.8%.

14. If similar is taken as "close" and the benefit of the doubt is given plaintiffs by a factor of 10% (so that the Premises are thought of as having an area of 5,940 square feet and a frontage of 84 feet) the figures become 9 out of 34, or 26.4%.

15. Neither "substantial" nor "similar" is defined in the By-Laws. The cases and dictionary definitions cited by counsel for those terms are broad enough especially in the case of "substantial" - to support a decision either way in this case.

16. The Board in an earlier attempt by plaintiffs to obtain relief under Section 6.3.1.3. of the By-Laws, had interpreted "substantial" to mean at least 50%, and the Chairman of the Board testified that that standard had been applied in other applications of that section.

17. I do not have to rule on whether a 50% test would be reasonable. I do find and rule that a denial based on figures in the range of 12% to 26% is not based on legally untenable grounds or unreasonable, whimsical, capricious or arbitrary, and I accordingly uphold the Decision of the Board.

18. With respect to the fifth condition quoted above, the Board did not make up its mind. However, I find and rule that, as Lot 98 had been acquired by the owner of Lot 106 (see paragraph 9 above), it had effectively been incorporated into that lot and the condition was satisfied. I am led to that conclusion in part by the By-Laws' definition of "Lot", at Section 2.2.20.:

2.2.20. LOT: a parcel of land occupied or designed to be occupied by principal and accessory buildings or uses, including such open spaces as are arranged and designed to be used in connection with such buildings.

Judgement accordingly.