Plaintiffs, appealing under G. L. c. 40A, ยง17, seek to annul a decision dated March 19, 1991 (the "Decision") of the Zoning Board of Appeals (the "Board") of the Town of Milton (the "Town") reversing a determination dated August 3, 1990 (the "Determination") of the Town's Building Inspector (the "Building Inspector") as to property ("Locus") at 36 Pleasant Street in the Town. The Determination was that one of two lots comprising Locus was not a buildable lot, and thus the Board found that it was.
All parties have moved for Summary Judgment. The motions were argued by counsel for all three parties on January 14, 1992. Counsel stipulated at the hearing: (a) there is no genuine issue as to any material fact in this action; (b) this action turns on clause (c) ("Clause (c)") of Section VI, Subsection A, Paragraph 3 of the Zoning By-Law of the Town and the sentence (the "Last Sentence") which immediately follows that clause; and (c) Section 6 of G. L. c. 40A is not at issue in this action.
On September 25, 1991 the parties filed an Agreed Statement of Facts dated September 24, 1991, a copy of which is attached to, and incorporated in, this Decision. The Exhibits referred to in the Agreed Statement are attached to a List of Agreed Exhibits also agreed to by all parties, and filed September 25, 1991 which is not attached hereto but which is incorporated in this Decision for purposes of any appeal. I have also attached a copy of a portion of the relevant Assessor's Plan, which I have marked to show the two lots involved in this action.
I find and rule as follows:
1. Clause (c) and the Last Sentence, together with the introductory material thereto, are as follows:
In a Residence C District no dwelling shall be erected or maintained except on lots as hereinbefore defined, or on lots established on February 10, 1938, as hereinbefore provided, containing no less than 7,500 square feet each and having each a frontage of not less than 75 feet, and not more than one dwelling shall be erected on each such lot except that . . . (c) one dwelling may be erected on a lot containing less than 7,500 square feet, or having a frontage of less than 75 feet, if such lot was recorded on February 10, 1938, and did not at the time of such adoption adjoin other land of the same owner available for use in connection with said lot. No such adjoining land or any part thereof shall be deemed "available for use" (as that phrase is used in this subsection (c)) if such land is a parcel which was so recorded, on which at the time of such adoption a dwelling existed, and which then contained no more than 7,500 square feet and had a frontage of no more than 75 feet.
2. In the absence of the Last Sentence, Lot B would not be a buildable lot under Clause (c). Lot B has less than 75' frontage and at all times relevant it "adjoin[ed] other land of the same owner."
3. Did it, however, "adjoin other land of the same owner available for use in connection with said lot", given the definition of "available for use" in the Last Sentence? Was Lot A "available for use"?
4. Under the Last Sentence, Lot A is not "available for use" if it:
(a) is a recorded parcel;
(b) had a dwelling on it at the time of zoning adoption;
(c) contained no more than 7,500 square feet at the time of zoning adoption; and
(d) had frontage of no more than 75' at the time of zoning adoption.
5. Lot A meets all those requirements. Plaintiff argues as follows, however:
The Planning Board does not contest the determination that the lots have retained separate identities. (Lindsay v. Board of Appeals of Milton, 362 Mass. 126 ) and does not fault the analysis of the Board of Appeals as to Lot B standing alone. This appeal results from the Planning Board's opinion that Lot A, standing alone, will violate the zoning, and that the dwelling, currently standing on Lot A, could no longer be "maintained" once the lot was rendered nonconforming by building a house on Lot B. In the Planning Board's opinion, both Lot A and Lot B (not just Lot B) must be legally justified for Lot B to be buildable.
6. If the outcome depended on the first sentence of the fourth paragraph of G. L. c. 40A, Section 6, I would agree with Plaintiff. Lot A does not meet the frontage and no-common-ownership tests. That being the case, the valid lot (Lot B, valid because of Clause (c) and the Last Sentence) should not be severed, leaving the invalid lot; Lot B should be kept in common ownership so as to minimize the non-conformity as to Lot A.
7. However, we are dealing with the more liberal provisions of the Milton By-Law. Under Plaintiff's analysis, Lot B is "available for use" under the Last Sentence, and therefore Lot A cannot have the benefit of Clause (c). Plaintiff is correct in that, so far as it goes. Lot B has no dwelling on it and has an area larger than 7,500 square feet.
8. Clause (c) and the Last Sentence are a puzzler if tried on different hypotheticals to divine their intent. Plaintiff suggests as follows:
The Planning Board suggests that the amendment was intended for the situation where, at the institution of zoning in 1938, a person owned a conforming lot and an adjoining lot with less than the required area or frontage. Before the amendment, the nonconforming lot would not have qualified for Exception (c) because of the happenstance that the conforming lot (which at all times could have legally stood alone) was in common ownership. The requirement that the lot have "no more than" 7,500 square feet of area and "no more than" 75 feet of frontage requires an oversize lot with excess area and/or frontage to give up such excess area or frontage to the undersize lot.
9. That is an interesting suggestion - to trim off any oversized or overfrontaged lot just enough of its square footage and frontage so as to leave it just conforming and allocate the trimmed off portions to the adjoining lot. Perhaps that is a possible reading, although the language needs a fair amount of stretching to get there.
10. Plaintiff's implication, however, is that Clause (c) and the Last Sentence work only where the house lot is an oversized and/or overfrontaged lot (or a lot which just exactly conforms as it stands). I find no such meaning in the two clauses.
11. In addition, Plaintiff's reading denies the applicability of the two clauses in the situation which meets their express language, the situation we have in this action. I conclude that the sensible way to read the two clauses in the context of our facts is to say that Clause (c) and the Last Sentence legitimate Lot B by their express terms and legitimate Lot A by implication. Stated differently, to allow Lot B to be severed is not to invalidate Lot A; Lot A can stand on its own feet by virtue of the implication of Clause (c) and the Last Sentence. I therefore uphold the Board's Decision.
Judgment accordingly.
ROBERT J. KELLY, ALEXANDER WHITESIDE, J. WILLIAM DONLAN, BERNARD J. LYNCH, III and HOYT H. COUSINS, as they are the PLANNING BOARD OF THE TOWN OF MILTON vs. RODERICK M. CONNELLY, JAMES N. DOHERTY, FREDERICK J. KIBBLE, ROGER L. GREGG, JOSEPH J. LANE and MARION V. ETTRICK, as they are the BOARD OF APPEALS OF THE TOWN OF MILTON, STEPHEN A. LANCIONE and ROBERTA M. LANCIONE.
