SHEILA S. SCHOFIELD vs. RAY TOLOSKO, GAIL MAJAUCKAS, DAVID CASAVANT, ELOISE O'SULLIVAN and ELEANOR COOK, as they are the members of the ZONING BOARD OF APPEALS OF THE TOWN OF WEST NEWBURY.

This is a complaint under M.G.L. c.40A, §17 whereby Plaintiff appeals the decision of Defendant Board of Appeals to uphold the denial of the building inspector of West Newbury of a building permit on a certain parcel of land owned by Plaintiff and located in West Newbury.

The parties have agreed on all material facts and accordingly I find that as to the single remaining issue this matter is ripe for summary judgment. Community National Bank v. Dawes, 369 Mass. 550 (1976).

The pertinent facts are:

1. Plaintiff is the owner of a certain parcel of land ("Locus") on Indian Hill Street in the Residential A Zoning District of West Newbury.

2. Said lot was acquired by Plaintiff and her then husband in 1972.

3. In November 1982 the Town adopted as a part of the area requirements section of its Zoning By-law a requirement that for a building permit to issue at least 25% of the area of the lot must be buildable and contiguous.

4. Locus has at all times met this requirement.

5. On April 27, 1987 the By-law was amended by increasing the buildable and contiguous requirement from 25% to 75%. Locus does not comply with this requirement, although Defendants concede Locus meets all other zoning requirements.

The only question to be decided herein is whether or not the increase in required "buildable and contiguous" area from 25% to 75% is an increase in area requirements hence exempting Locus for a certain time period under G.L. c. 40A, §6.

The pertinent language of the statute reads:

Any increase in area . . . requirements of a zoning . . . by-law shall not apply to a lot for single family . . . residential use . . . for a period of five years.

I find that the increase is in fact an increase in area requirement and hence has the benefit of the exemption.

Plaintiff's motion for summary judgment on Count I is allowed.

Accordingly it is ADJUDGED and ORDERED that the amended decision by the Board of Appeals dated June 29, 1991 upholding the building inspector's denial of a building permit exceeded the authority of the Board and is hereby annulled, and this matter is remanded back to the Board for further consideration and a decision consistent with the foregoing; and it is further

ADJUDGED and ORDERED that the exemption provisions of c. 40A, §6 are extended for a period equal to the time elapsed between July 20, 1990 and the date of any final order in this matter.

By the Court