PAUL T. LYDON, MARY J. ODOARDI, RICHARD J. DEMPSEY, and BERNADETTE B. DEMPSEY vs. EARL RHYNE, WILLIAM O'CALLAGHAN, WAYNE L. HANSEN, MARGARET FITZGERALD, and PETER KOUFOPOULDSAS, as they are the members of the ZONING BOARD OF APPEALS for the TOWN OF MILLIS, and the TOWN OF MILLIS.

By complaint filed March 6, 1991, Plaintiffs have appealed pursuant to G.L. c. 40A, §17, from the decision of the Town of Millis Zoning Board of Appeals' decision denying a request for a determination that two adjoining lots, one owned by Lydon and Odoardi and one owned by Dempsey, are nonconforming lots of record. Plaintiffs further seek a declaratory judgment under G.L. c. 240, §14A that the Town of Millis Zoning By-Law (1) authorizes the Lydon/Odoardi lot to be improved with a single family residence and (2) authorizes the existing single-family dwelling to be maintained on the Dempsey lot.

On January 6, 1992, this cause came to be heard on Plaintiffs' Motion for Summary Judgment, pursuant to Mass. R. Civ. P. 56. After considering arguments of counsel, affidavits, pleadings and briefs, I rule that there are no genuine issues of material fact and that therefore, summary judgment is appropriate in this case. I further rule, based upon the undisputed facts, that Plaintiffs' Motion must be denied and that Defendants' Cross Motion is hereby granted.

I find the following material facts to be undisputed:

1. The subject lots are both shown on a plan entitled "Plan of Land in Millis, Massachusetts belonging to Arthur L. Shannon" dated February 1947.

2. Thomas S. Lydon and Alice K. Lydon acquired Lot 1 as tenants by the entirety from Arthur L. Shannon by deed dated March 12, 1947, recorded in the Norfolk County Registry of Deeds at Book 2667, Page 520. Lot 1 contained 11,856 square feet and had 100 feet of frontage on Shannon Lane. The Lydons subsequently built a single-family residence on Lot 1.

3. Later that year, the Lydons acquired Lot 2, also as tenants by the entirety, from Arthur L. Shannon by deed dated July 23, 1947, recorded in the Norfolk County Registry of Deeds at Book 2777, Page 197. Lot 2 contained an area of 12,000 square feet and had 100 feet of frontage on Shannon Lane. Lot 2 abuts Lot 1.

4. At the time the Lydons acquired Lots 1 and 2 and constructed a residence on Lot 1, there were no zoning by-laws in the Town of Millis.

5. The Town of Millis first adopted a zoning by-law in 1951. It was amended in 1956 to require 15,000 square feet of area and 100 feet of frontage for single-family residential lots.

6. On October 15, 1986, Thomas S. Lydon died, leaving title to Lots 1 and 2 in the name of Alice K. Lydon, individually. Alice K. Lydon conveyed both lots to Paul T. Lydon and Mary Odoardi by single deed dated Deceniber 9, 1987, recorded at the Norfolk County Registry of Deeds in Book 7827, Page 425. The 1987 deed of conveyance describes the two lots by a single metes and bounds description.

7. From July 23, 1947, until September 13, 1989, Lots 1 and 2 were held in common ownership.

8. Odoardi conveyed title to Lot 1 to Lydon by deed dated September 13, 1989, recorded at the Norfolk County Registry of Deeds in Book 8439, Page 165. Lydon then conveyed the lot to the Dempseys by deed dated May 27, 1990, recorded in Norfolk County Registry of Deeds in Book 8651, Page 692.

9. Lydon and Odoardi then applied for a building permit for Lot 2. On September 7, 1990, the Millis Building Inspector denied their building permit application. Lydon and Odoardi appealed this decision to the Millis Zoning Board of Appeals pursuant to G.L. c. 40A, §8 and, in the alternative, applied for variances from the area and lot depth requirements of the Zoning By-Law for Lots 1 and 2.

10. By decision dated February 13, 1991, and filed with the Town Clerk on February 15, 1991, the Board of Appeals affirmed the Building Inspector's decision and denied the petition for variances.

11. Two of the three members of the Board of Appeals who voted on Plaintiffs' petition were associate members who had attended all public hearings on the matter.

12. Section IX.C. of the Millis Zoning By-Law provides:

Residential Lot of Record. Any nonconforming lot lawfully laid out by plan or deed duly recorded or any nonconforming lot shown on a plan endorsed by the Planning Board with the words "approval under the subdivision control law not required" or words of similar import which complies at the time of recording of such endorsement, whichever is earlier, with the minimum area, frontage, width, and depth requirements, of any zoning by-law then in effect may be built upon, provided it is in accordance with the Zoning Act (a minimum area of 5,000 square feet with a street front footage minimum of 50 feet) and is used for a one-family dwelling with permitted accessory uses and in all other respect meets the requirements of this By-Law.

13. Section II ("Definitions") of the Millis Zoning By-Law contains the following definition of "Lot":

A parcel of land with boundaries identical with those recorded in the Norfolk Registry of Deeds and having frontage on a public street and may consist of:

a. A single lot of record.

b. A combination of complete lots of record.

c. A parcel of land described by metes and bounds; provided that in no case by division or combination shall any residential lot or parcel be created which does not meet the requirements of this By-Law.

14. Section IV.A. ("Interpretation") of the Millis Zoning By-Law states, in relevant part:

Whenever the regulations made under the authority hereof differ from those prescribed by any statute, by-law, or other regulations, that provision which imposes the greater restriction or the higher standard shall govern.

15. The fourth paragraph of G.L. c. 40A, §6, which I find pertinent, reads:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.

The issue to be decided is whether or not the Lydon/Odoardi lot (Lot 2) may be improved with a single-family residence under Sections XI.C, II ("Lot" definition), and IV.A of the By-Law, and G.L. c. 40A, §6, paragraph 4, insofar as it is applicable.

I find that when the pertinent sections of the By-Law are read together, as they must be, it is clear that, under the By-LawLots 1 and 2 became one lot at the latest by the December 9, 1987, deed at which time the lot met at least two, if not all of three definitions of Section II.

I further find that the proposed division of lots would be in violation of G.L. c. 40A, §6, paragraph 4, as quoted above. The By-Law incorporates the statute in both Section IX.C and IV.A and in this regard, I find that the "parenthesized" words of Section IX.C (a minimum area of 5,000, etc . . . ) are explanatory guiding the reader to §6, rather than being words of limitation. In any event, it would appear that the reading urged by Plaintiff, that they are words of limitation, would leave the By-Law in conflict with the Zoning Act. This situation is similar, although not identical to the situation in McLaughlin v. City of Brockton, 32 Mass. App. Ct. 930 (1992) where the Appeals Court ruled that a municipality's "expansion of nonconforming use" standards could not be less restrictive than those required by the statute.

Accordingly, it is hereby ORDERED and ADJUDGED that Plaintiffs' Lots 1 and 2 are not separately protected, pre-existing, nonconforming lots of record and are in fact merged for zoning purposes.

Plaintiffs' Motion for Summary Judgment is hereby denied and, pursuant to Mass. R. Civ. P. 56 (c), Defendants' Motion for Summary Judgment is allowed.

By the Court