MISC 155095

February 18, 1992

Essex, ss.



Plaintiffs, appealing under G. L. c. 40A, ยง17, seek to annul a decision of the Zoning Board of Appeals (the "Board") of the City of Beverly (the "City") upholding a determination dated September 11, 1990 (the "Determination") of the City's Inspector of Buildings (the "Building Inspector") as to Plaintiffs' property at the intersections of Marsh, Shore and Parkview Avenues in the City. The Determination was that Plaintiffs' property is not a "lot of record" under the Beverly Zoning Ordinance (the "Ordinance") and therefore not entitled to a building permit. In the alternative Plaintiffs sought a variance from the Board.

Plaintiffs have moved for Summary Judgment with respect to Count 1 of their Complaint, attacking the Board's decision as it relates to the Determination. Counsel argued the motion on January 15, 1992. Plaintiffs filed an Affidavit as to their title to this land and the City's activities thereon. On the basis of the uncontested facts, I find and rule that there is no genuine issue as to any material fact as to the motion, and I find and rule for Plaintiffs, as follows:

1. Plaintiffs acquired a parcel of land in Beverly from the City by deed dated December 11, 1946 and recorded with Essex South District Registry of Deeds at Book 3518, Page 477. The parcel conveyed was an irregularly shaped pentagon at the intersection of Marsh, Shore and Parkview Avenues. The deed stated that the area of the parcel was about 21,240 s.f.

2. In 1967 the City, without authorization or plaintiffs' knowledge, commenced construction of a pumping station on a portion of the parcel. Plaintiffs allege the City mistakenly believed it still owned the parcel.

3. Plaintiffs conveyed 2,580 s.f. of the parcel to the City by deed dated August 1, 1972 and recorded with said Deeds at Book 5921, Page 629. The 2,580 s.f. portion, on which the pumping station stands, is shown as "Parcel 'C' on a December 1967 plan which accompanied the deed. The plan was recorded as Plan 538 of 1972 and a copy is attached hereto. The original parcel acquired by plaintiffs in 1946 is comprised of "Parcel 'C'" and the area labelled "John & Jean Gallagher" (the "Remaining Land"). The 1972 transaction was in lieu of a taking of Parcel C. Plaintiffs were paid $600 for Parcel C.

4. At the time of the 1972 conveyance, Plaintiffs believed the Remaining Land would comply with applicable dimensional requirements of the Ordinance. The Remaining Land is in an R-10 Residential Zoning District, requiring 100' frontage and 10,000 s.f. area. Based on the recitation of 21,480 s.f. in the City's 1946 deed to Plaintiffs, Plaintiffs believed the Remaining Land would contain adequate square footage.

5. The Remaining Land is vacant. On September 11, 1990, the Building Inspector issued his Determination that the Remaining Land was not a "lot of record", and that a building permit for it could not issue without a variance. The Remaining Land has 9,768 s.f., a deficiency of 232 s.f.

6. Plaintiffs appealed to the Board and, alternatively, sought a dimensional variance. On November 27, 1990, as evidenced by a decision filed with the City Clerk on December 7, 1990, the Board upheld the Building Inspector (3 votes to uphold, 2 to reverse) and denied the variance (4 to 1).

7. The critical portion of the Ordinance is Section 29-5F (2), which provides as follows:

2. Reduction of area - 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. This paragraph shall not apply where a portion of a lot is acquired for a public purpose.

8. Parcel C, the 2,580 parcel, was acquired for a public purpose within the meaning of Section 29-5F(2).

9. Section 29-2 (29) of the Ordinance is a definition of "Lot", as follows:

Lot - a parcel of land in identical ownership throughout of at least sufficient size to meet the minimum requirements of this Ordinance for use, coverage, and area and to provide required yards and other open spaces.

10. The City argues that the purpose of Section 29-5F (2) is to permit a division of land for public purposes resulting in a sub-sized public lot, or, stated differently, that Section 29-5F (2) is aimed at the public lot, not the land that is left.

11. The City further argues that Plaintiffs' interpretation would mean - to use our case - that if the City had needed 9,000 s.f., instead of 2,580 s.f., Plaintiffs would be left with a 3,348 s.f. lot, and surely that could not be a buildable lot.

12. I conclude that the city's reading of Section 29-SF (2) is erroneous. When the two sentences are read together, it is clear that the lot which is to be changed is the original lot. The definition of "lot" includes the concept of conformity - a "lot" is a parcel which conforms to zoning. Section 29-5F (2) says you cannot change a conforming lot to a non-conforming lot, except where a portion of the formerly conforming lot is acquired for a public purpose.

13. If an acquisition would leave an absurdly small lot, as Defendants hypothesize, the City could simply take the entire lot and forestall the midget size building lot which Defendants fear.

14. Plaintiffs' reading of Section 29-5F (2) is consistent with more usual situations, where a municipality would desire, for example, to take small strips along lot frontages for a street widening. Section 29-5F (2), as read by Plaintiffs, would leave the owners with conforming lots and, incidentally, spike any claim by them for damages for a total taking.

15. The Decision of the Board is annulled insofar as it relates to the Determination of the Building Inspector that the Remaining Land is not a buildable lot. This matter is remanded to the Board, which shall overrule the Determination in accordance with this Decision.

Judgment accordingly.

exhibit 1

Plan of Parcel C