JAMES W. SHKLIEW and JOHN P. BANNON vs. KENNETH SHEEHAN, JOHN FYFE, ROBERT BURNSTEIN, SHIRLEY ALLARD, and ALAN FLAZARANO as they are the BOARD OF APPEALS OF SALISBURY, and the TOWN OF SALISBURY.

This matter has been submitted to the Court on an agreed statement of facts as to Count II of the Complaint, which Count seeks a determination under G.L. c. 240, §14A as to the validity and application of the Salisbury Zoning By-Law to a certain parcel of land described below. The parties agree that if Plaintiff prevails on Count II, Count I of the Complaint will become moot and may be dismissed.

In reviewing the agreed statement of facts, I find that there are no material facts in dispute and that, accordingly, this matter is ripe for summary judgment under Mass. Rules Civ. Pro. R. 56. Community National Bank v. Dawes, 369 Mass. 550 (1976). I find the following facts to be pertinent.

1. Plaintiffs are the owners of land and buildings located at 356 Old Elm Street, Salisbury ("Locus") as more particularly shown on an "approval not required" plan recorded with Essex South District Deeds in Plan Book 260, Plan 33 ("the Plan"). The Plan divides Locus, an undersized non-conforming lot, into two smaller lots.

2. Locus is located partially in a Commercial II Zone and partially in a Medium Density Residential Zone. As the Plan shows, Locus has been divided into two lots. Lot 1 is in the Commercial II Zone; Lot II is for the most part in the Medium Density Residential Zone. The minimum lot size in both zones is one acre. Lot 1 contains 11,710± square feet; Lot 2 contains 17,999± square feet.

3. The buildings on Locus were in existence prior to the Subdivision Control Law going into effect in Salisbury. The division of Locus, as shown on the Plan leaves one building on each lot.

4. Certain commercial uses as well as residential uses are allowed in a Commercial II Zone. Such uses require a frontage of 150 feet and an area of one acre.

5. Certain residential uses are allowed in a Medium Density Residential Zone. Such uses require 150 feet of frontage and an area of one acre.

6. Locus has not been held in common ownership with any abutting land at least since just prior to the adoption of zoning. It is non-conforming even without the subdivision inasmuch as it is less than one acre and has less than 150 feet of frontage.

7. The "ANR" endorsement referred to in Finding Number 1 above bears the further notation:

Planning Board Endorsement of this plan is not intended to imply that Lot 1 and Lot 2 comply with current Salisbury Zoning By-Law requirements with respect to minimum frontage and lot size.

8. The Building Inspector has required that a variance be obtained for frontage and lot size to allow the subdivision of the pre-existing lot into the new non-conforming lots. Plaintiff's application for such variance has been denied.

In consideration of the foregoing Defendant's Motion for Summary Judgment is denied; summary judgment is allowed in favor of Plaintiff.

The controlling case in this instance is Citgo Petroleum Corporation, et al v. Planning Board of Braintree, 24 Mass. App. Ct. 425 (1978), where lots similarly divided were held not to be a subdivision. The only difference between the instant case and Citgo appears to be that while the lots in Citgo contained ample size, there was inadequate frontage (in fact there was none), whereas here the lots have both inadequate size and frontage. This appears to be a difference without a distinction. Were size a requirement, the pertinent provision of G.L. c. 41, §81L would be a surplusage to paraphrase Citgo.

While it is not clear from the documents what, if any, use is being made of the "commercial building" on lot 2, it would appear that the building may be used for any permitted use in the governing zoning district as may the building on Lot 1. As Defendants point out, the division of lots in circumstances such as this does not necessarily mean the lots are buildable under the zoning by-law, Smalley v. Planning Board of Harwich, 10 Mass. App. Ct. 599 , 603 (1980) and indeed in this instance they appear not to be, Plaintiff does not seek a building permit, only an apparently permitted use. Should Plaintiff seek to enlarge or structurally expand the structures, a zoning adjustment may well be required. To find that buildings on lots as divided may remain, but without any allowed use would also render the 81L phrase meaningless. Accordingly it is

ADJUDGED AND ORDERED that either or both of the lots shown on the said plan may be conveyed; and it is further

ADJUDGED AND ORDERED that the dimensional requirements of the Salisbury Zoning By-Law do not apply to the said lots or building thereon insofar as the buildings presently exist and as set forth in this decision.

Count I of the Complaint is dismissed by agreement of the parties.

By the Court