STEVEN DALKOURAS vs. ANTHONY EONAS, JOHN CAHILL, KENNETH GALLIGAN, D. SEAN NOONAN and VIOLA PACKARD, as they are members of the CITY OF BROCKTON ZONING BOARD OF APPEALS

Plaintiff, Steven Dalkouras, filed his unverified complaint on June 17, 2004, appealing the decision of Defendant Brockton Zoning Board of Appeals (the “ZBA”), pursuant to G. L. c. 40A § 17, which upheld the City of Brockton Building Department’s (the “Building Department”) determination that the lot at issue (“Lot 73”), located on Prince Street in Brockton, MA, is not a buildable lot. The ZBA filed its Answer on July 2, 2004. On August 2, 2011, the ZBA filed its Motion for Summary Judgment, together with supporting memorandum and a Statement of Undisputed Facts, together with affidavits of James M. Burke (the ZBA’s attorney), Paul J. Sullivan (current Assessor for the City of Brockton), and James Casieri (current Superintendent of Buildings for the City of Brockton). On August 3, 2011 Plaintiff filed a Cross-Motion for Summary Judgment, together with affidavits of John F. Johnson (Brockton City Council member in 1967–when the zoning ordinance at issue was adopted), Carl Landerholm (former Superintendent of Buildings for the City of Brockton), David Tonis (former Superintendent of Buildings for the City of Brockton), and John Dorgan (former Building Inspector and former Superintendent of Buildings for the City of Brockton). On September 19, 2011, both motions were heard at the Land Court in Boston and taken under advisement.

“Summary judgment is granted where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-44 (2002); Cassesso v. Commr. of Correct., 390 Mass. 419 , 422 (1983); Mass. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court may consider pleadings, depositions, affidavits and admissions on file. Community Nat’l Bank v. Dawes, 369 Mass. 550 , 550 (1976); Mass. R. Civ. P. 56(c). Whether a fact is material is determined by the substantive law, and an adverse party to the motion may not manufacture disputes by use of conclusory factual assertions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648.

The following facts are not in dispute:

1. Lot 73 was initially created by “Plan of House Lots belonging to G. H. Kingman and L. Leach, Brockton, MA 1889, W. J. Howard, C.E.” recorded at the Plymouth County Registry of Deeds (the “Registry”) at Book 1, Page 113 (the “1889 Plan”).

2. An adjacent lot (“Lot 112”), is shown on “Plan of Lots on the Northern Section of the Joslyn Farm belonging to J. C. Snow,” dated 1888, and recorded in the Registry on February 17, 1888 at Book 1, Page 121 (the “1888 Plan”). Lot 112 and Lot 73 abut one another, each with frontage on Prince Street. [Note 1]

3. By deed dated February 19, 1916, recorded at the Registry at Book 1223, Page 465, Lot 73 (and other lots) were conveyed from Justin Chandler to Walter Delano (“Delano”).

4. By deed dated December 2, 1921, recorded at the Registry at Book 1403, Page 123, Lot 112 was conveyed from Annie Atwood to Delano. It was at this time that Lot 73 and Lot 112 first became held in common ownership. At this time, both lots were conforming, buildable lots pursuant to the applicable zoning regulations. [Note 2]

5. By a single deed dated May 19, 1950, recorded at the Registry at Book 2090, Page 416 (the “1950 Deed”), Lot 73 and Lot 112 were conveyed together from Delano to Kenneth A. Washburn and Evelyn E. Washburn (the “Washburns”). [Note 3] The 1950 Deed states:

I...Walter Delano...for consideration paid, grant to Kenneth A. Washburn... the land in said Brockton, situated on the Easterly side of Prince Street and bounded by and described as follows: Begin at a point on the Easterly side line of said Prince Street, it being the Southwest Corner of the granted premises; thence, Northerly by the side line of said Prince Street, one hundred and twenty (120) feet to a corner and land of the grantor; thence, Easterly by other land of the grantor one hundred and eighteen (118) feet, more or less, to a corner and land of the grantor; thence Southerly by land of the grantor one hundred and twenty (120) feet, more or less to a corner and land now or formerly of Fred Grandmont; thence, Westerly by land of said Grandmont, once hundred and ten and 35/100 (110.35) feet to the point of beginning. Said premises are conveyed subject to any and all easements of record of the City of Brockton for the purposes of maintaining a sewer and drainage system. The above described parcel is comprised of two lots of land: Lot No. 112 as shown on “Plan of Lots, Northern Section of the Joslyn Farm belonging to J.C. Snow, 1888 E.L. Brown, C.E.” ... and Lot No. 73 as shown on “Plan of House Lots belonging to G.A. Kingman & L.L. Leach, Brockton 1889, W.J. Howard, C.E.”, ...To which plans reference may be had for a more particular description of the said premises.

At the time of the 1950 Deed, both Lot 73 and Lot 112 were conforming, buildable lots.

6. In 1950 a single family home was constructed on Lot 112 and remains there today. The house’s street address is 33 Prince Street, Brockton, MA. No improvements have been made on Lot 73.

7. In 1967 the Brockton City Council amended the Brockton Zoning Ordinance (the “Ordinance”). When the revised Ordinance came into force on January 1, 1968, Lot 73 and Lot 112 became nonconforming lots due to frontage and square footage inadequacies. [Note 4]

8. By deed dated October 16, 1973, recorded at the Registry at Book 3941, Page 14, the Washburns conveyed Lot 73 and Lot 112 to John Gifford Wood, Jr. and Carol L. Wood (the “Woods”). The deed states “the above described parcel is comprised of two lots of land...,[b]eing the same premises conveyed in deed from Walter E. Delano to th[e] granto[r] dated May 19, 1950,” and it also references both the 1889 and 1888 Plans. However, just as in the prior deed, both lots are described using a single set of metes and bounds.

9. By deed dated July 1, 1974, recorded at the Registry at Book 4000, Page 244, the Woods conveyed Lot 73 and Lot 112 to Charles W. Reed, Jr. and Carol A. Reed (the “Reeds”). The deed states “the above described parcel is comprised of two lots of land...,” references both the 1889 and 1888 Plans, and, just as in the prior deeds, describes both lots using a single set of metes and bounds.

10. By deed dated October 7, 1998, recorded at the Registry at Book 16699, Page 54, the Reeds conveyed Lot 73 and Lot 112 to Paul, Elaine and John Tamulevich. The identification and description of the two lots was identical to the 1973 and 1974 deeds, and additionally the conveyed property is identified as “33 Prince Street.”

11. By deed dated August 3, 1999, recorded at the Registry at Book 17746, Page 295, Paul, Elaine and John Tamulevich conveyed Lot 73 and Lot 112 to Paul and Elaine Tamulevich. The identification and description of the lots was identical to the previous deeds.

12. By deed dated September 19, 2002, Lot 112 and the house upon it were conveyed by Paul and Elaine Tamulevich to Natalio DaVeiga, and such deed was recorded at the Registry at Book 22898, Page 250. This deed describes Lot 112 as a single lot, having a single set of metes and bounds, with reference to the 1888 Plan, identifies it as 33 Prince Street, and does not reference Lot 73. This was the first time since 1921 that Lot 112 and Lot 73 were not held in common ownership.

13. By deed, dated July 15, 2004, recorded at the Registry at Book 28670, Page 338, Lot 73 was conveyed from Paul and Elaine Tamulevich to the Wainwright Investment Trust (the “Trust”). This deed describes Lot 73 as a single lot, having a single set of metes and bounds, with reference to the 1889 Plan, and does not mention Lot 112.

14. Plaintiff has an equitable interest in Lot 73 evidenced by his option to purchase (the “Option”) granted by Ona G. Wainwright, Trustee of the Trust, on July 13, 2004. [Note 5] The Option was not recorded at the Registry. The Option grants Plaintiff the right to purchase Lot 73 for $80,000, within sixty days of the final Land Court decision in the present case, including all appeals.

15. The City of Brockton Assessor’s Department assessed both lots as a single parcel of 13,374 square feet (Plot 19 Prince Street) from 1951 to 2003.

16. Since 2004, the Assessor’s Department database lists Lot 73 as its own parcel and as “Developable Land.”

17. In 1998 the Reeds submitted a Legal Use & Buildable Lot Request Form to the Building Department requesting and receiving an opinion as to whether Lot 73 was a separate buildable lot (the “1998 Opinion”). [Note 6] In 2002 Gary Lawcewicz submitted a similar form and received an opinion (the “2002 Opinion”). [Note 7] In 2004 Plaintiff also submitted the form and received an opinion (the “2004 Opinion”). Each time the Building Department’s opinion was that Lot 73 was not a buildable lot because it had merged with Lot 112. Plaintiff is the only owner to have appealed the decision of the Building Department.

18. The 1998 Opinion states, “Plot is not a buildable lot as a house is currently located there.” The 2002 Opinion states, “Based on the information provided it appears that Plot 19 Prince Street is not in compliance with Section 27-12 of the Revised Ordinances of the City of Brockton. The deed document indicates that the Lots 112 and 73 which comprise Plot 19 have merged.” The 2004 Opinion states, “Based on the information provided it appears that Plot 19 Prince Street is not in compliance with Section 27-12 of the Revised Ordinances of the City of Brockton. The deed document indicates that lots 112 and 73 which comprise Plot 19 have merged.”

19. By Instrument of Taking dated May 26, 2006, and recorded with the Registry at Book 32814, Page 129, the City of Brockton took Lot 73 for non-payment of real estate taxes for the year 2005. The City of Brockton filed an action to foreclose the tax lien (T.L. 1388590) on May 15, 2009 and recorded with the Registry at Book 37201, Page 181. A Judgment was issued on October 6, 2010, and recorded with the Registry at Book 39300, Page 139. A Vacation of Judgment dated January 31, 2011, was recorded with the Registry at Book 39713, Page 170. An Instrument of Redemption dated May 12, 2011, was recorded with the Registry at Book 39931, Page 331.

*********************

There are two issues to be decided. Plaintiff argues that the ZBA exceeded its authority by upholding the Building Department’s determination that Lot 73, through the common law rule of merger, lost its separate identity as an existing lot of record and, therefore, is not a buildable lot. The ZBA claims that the 1998 Opinion, issued by the Building Department to the Reeds, determining that Lot 73 had merged with Lot 112 and was not a buildable lot, is binding on Plaintiff and forecloses his statutory right to appeal. I find that there are no material facts at issue and that summary judgment is appropriate. The second issue is a threshold question and will be addressed first.

The 1998 Opinion

G. L. c. 40A § 8 states:

An appeal to the permit granting authority as the zoning ordinance or by-law may provide, may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter, by the regional planning agency in whose area the city or town is situated, or by any person including an officer or board of the city or town, or of an abutting city or town aggrieved by an order or decision of the inspector of buildings, or other administrative official, in violation of any provision of this chapter or any ordinance or by-law adopted thereunder.

G. L. c. 40A § 15 (first sentence) states:

Any appeal under section eight to a permit granting authority shall be taken within thirty days from the date of the order or decision which is being appealed.

Pursuant to G. L. c. 40A §§ 8 and 15, when the Reeds received the 1998 Opinion they had a thirty day statutory right to appeal this decision to the ZBA, and they failed to do so. By failing to appeal, they waived their right of appeal under the statute. In 2002, when Gary Lawcewicz, requested and received the same opinion from the Building Department, he also did not appeal. [Note 8] The ZBA contends that Plaintiff is bound by the 1998 Opinion because, as a party in privity with the Reeds, Plaintiff is bound by the Reeds’ waiver of appeal. Hence, they argue, Plaintiff was not entitled to file a Request Form and, therefore, was not entitled to appeal to the ZBA or this court based on the 2004 Opinion.

It is undisputed that a failure of a party to timely appeal a determination from a building department, pursuant to G. L. c. 40A §§ 8 and 15, will preclude that party’s right to challenge the order, either through the town zoning board of appeals, initially, or through judicial review, subsequently. Balcam v. Town of Hingham, 41 Mass. App. 260, 266 (1996); G. L. c. 40A §§ 8 and 15. It is clear that the Reeds, after their statutory time to appeal had run, would not have been permitted to appeal the 1998 Opinion to the ZBA. The issue before this court is whether the Reeds’ failure to appeal binds Plaintiff to the 1998 Opinion and forecloses his ability to appeal the 2004 Opinion.

In essence, the ZBA is making a res judicata argument. The term res judicata encompasses both claim preclusion and issue preclusion. Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005) (citing Heacock v. Heacock, 402 Mass. 21 , 23 n. 2 (1988)). “Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents litigation on all matters that were or could have been adjudicated in the action.” Kobrin, 444 Mass. at 843 (quoting O’Neill v. City Manager of Cambridge, 428 Mass. 257 , 259 (1998)). Issue preclusion “prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.” Heacock, 402 Mass. at 23 n. 2. At present, we are dealing with claim preclusion because the 2004 Opinion, from which Plaintiff’s claim stems, is the same determination as the 1998 Opinion which was not appealed. [Note 9] A successful assertion of claim preclusion requires three elements be found: “(1) the identity or privity of the parties to the present and prior actions, (2) identity of the cause of action, and (3) prior final judgment on the merits.” DeLuz v. Dept. of Correct., 434 Mass. 40 , 45 (2001) (quoting Franklin v. North Weymouth Coop. Bank, 283 Mass. 275 , 280 (1933)). It is undisputed that the owners, the Reeds and Plaintiff, are in privity with one another. The Reeds are the prior owners of Lot 73 and Plaintiff has a current equitable interest in Lot 73. The cause of action is also identical, as they both submitted the same request form and received indistinguishable opinions from the Building Department. [Note 10]

The third element, whether there was final judgment on the merits of the claim, is more problematic. The Building Department is an administrative agency within the town of Brockton. Though courts have recently begun applying the doctrine of claim preclusion to decisions of administrative agencies, there are unique exceptions in doing so that are not present in traditional res judicata determinations. See generally Restatement (Second) Judgments § 83 (1982). Specifically, where the procedures of the agency are significantly different from judicial procedures, there is considerably less chance that the determination will be given preclusive effect. Id. In order for an administrative decision to carry preclusive effect the final decision must have been reached through an adjudicative proceeding. Kobrin, at 844 (citing Tuper v. North Adams Ambulance Serv., 428 Mass. 132 , 135 (1998)) (citing Stowe v. Bologna, 415 Mass. 20 , 22 (1993)). Under G. L. c. 30A § 1 (State Administrative Procedure), an “Adjudicatory Proceeding” means “a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing.” Some examples of the procedures that need to be taken by a decision making body in order to qualify as an adjudicatory proceeding are: reasonable notice of the proceedings; the right to call witnesses, introduce exhibits, and the opportunity to admit and rebut evidence; and the creation of an official record. G. L. c. 30A § 11. These requirements resemble traditional processes of an adjudicatory body, such as a court of law or even a zoning board of appeals. Nothing about the 1998 Opinion persuades this court that the decision can be given preclusive effect. The Building Department did not take any action beyond looking at a deed and issuing an opinion. There is no indication that the Reeds would have been able to submit any other evidence, exhibits or expert opinion in furtherance of their position or in rebuttal. The 1998 Opinion was nothing more than a basic administrative action, not an adjudicatory proceeding. The 1998 Opinion did not place any conditions, restrictions or covenants upon the land which might have run to future owners, nor did it prohibit the Reeds from seeking a building permit notwithstanding the decision. In sum, the Reeds did not receive any process resembling an adjudicatory proceeding, and as such, no final decision was made for claim preclusion to apply. The Reeds may have waived their right to appeal, but I find that Plaintiff, who filed his own Legal Use & Buildable Lot Request Form and received his own determination issued by the Building Department, is not bound by the Reeds’ waiver of appeal of the 1998 Opinion.

Lot 73 as a Buildable Lot

The next issue I shall address is whether Lot 73 has lost its identity as an existing lot of record, through the doctrine of merger, and therefore is ineligible for protection under Ordinance § 27-12 as a buildable lot. A deeply rooted principle within the context of zoning regulations is that a landowner will not be permitted to create a dimensional nonconformity if he can use his adjoining land to limit or eliminate the nonconformity. Burke v. Zoning Bd. of Appeals of Harwich, 38 Mass. App. 957, 958-960 (1995). A landowner may also not artificially divide adjoining lots, which have lost their separate identity, in order to obtain a grandfather nonconforming use protection. See generally Lindsay v. Bd. of Appeals of Milton, 362 Mass. 126 (1972). However, it is equally important to remember that “the statutory policy of keeping once-buildable lots buildable, is grounded in principles of fairness to landowners... .” Rourke v. Rothman, 448 Mass. 190 , 197 (2007). Ordinance § 27-12 states:

A single-family structure may be constructed on any existing lot of record in any residential zone if such lot has less than the minimum area or frontage, or both, required for building lots in the residential zone in which it is located; provided the following conditions are met.

1. No structure shall be erected on any nonconforming lot if adjacent to the lot in question there exists vacant land, in the same ownership record at the time of the enactment of this chapter, which would create a conforming lot if such vacant land were combined with the lot deficient in area, or frontage, or both.

2. No structure shall be erected on a lot containing less than the required area of frontage, or both, unless the minimum side yards for lots in the residential zone where such lot is located are maintained.

3. No structure shall be built on any lot of less than the required area or frontage, or both, unless the minimum front and rear yards for lots in the residential zone where such lot is located are maintained.

4. All lots, regardless of size, shall have provision for off-street parking for at least one (1) vehicle.

5. All lots shall have a minimum frontage of fifty (50) feet and a minimum area of five thousand (5,000) square feet.

In order for Lot 73 to be protected under § 27-12 it need only be an existing lot of record and not be held in common ownership with a vacant adjoining lot in 1967. Correia v. Brockton Zoning Bd. Of Appeals, 12 LCR 32 (2004), aff’d, ( 63 Mass. App. Ct. 1118 (2005) (unpublished memorandum)). In the present case, Lot 73 was shown on a recorded plan that predated the Ordinance, and the adjoining lot, Lot 112, was held in common ownership but was not vacant in 1967. As such, Plaintiff argues that Lot 73 is protected under the Ordinance as an existing lot of record and is therefore buildable. The ZBA maintains that Lot 73 is not an existing lot of record because it had merged with Lot 112 in 1950, making it no longer “existing,” and therefore it is not a buildable lot protected under the Ordinance, and as a result its findings in this regard were not in excess of its authority.

There is no question that in 1968, when the Ordinance amendment took effect, Lot 73 and Lot 112 were in common ownership and that Lot 112 was not a vacant lot due to the house constructed upon it in 1950. Therefore, Lot 73 fulfills the first requirement of the Ordinance. The only remaining determination is whether Lot 73 was an “existing lot of record” at that time. The Ordinance does not define “existing lot of record.” Generally, “lot of record” means that the lot is shown on a plan, or other document, properly filed with the appropriate Registry of Deeds. Correia, 12 LCR at 34. Lot 73 satisfies this requirement since it is shown on a recorded plan filed with the Registry, i.e. the 1889 Plan. Thus, the issue for resolution is the definition of the word “existing.” The word “existing” is not defined in the Ordinance and it has been a subject of debate. Since its meaning is undefined in the Ordinance, it is for this court to determine its meaning according to common and approved usages, in light of the specific provision in which it is used and in reference to the Ordinance as a whole. See Livoli v. Zoning Bd. of Appeals of Southborough, 42 Mass. App. 921, 923 (1997); Shabshelowitz v. Fall River Gas Co., 412 Mass. 259 , 262 (1992); Owens v. Bd. of Appeals of Belmont, 11 Mass. App. 994, 995 (1981).

The word “existing” is an adjective, “used for describing something that exists now, especially when it might be changed or replaced.” Macmillan English Dictionary, http://www.macmillandictionary.com/dictionary/american/existing (last accessed November 9, 2011). The Ordinance states, as one of its purposes, “[c]onserving the value of land and buildings... .” This purpose, combined with the grandfather provision of § 27-12, demonstrates to this court that the Ordinance contemplates strong protections for an individual’s property rights and the expectations of value in real property. Although it is not at issue, reference to the Massachusetts General Laws may be helpful. G. L. c. 40A § 6 is the Commonwealth’s version of grandfather protection for nonconforming lots. G. L c. 40A § 6 states, in relevant part,

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. Any increase in area, frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and seventy-six, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership...

The first sentence of this provision protects nonconforming lots that were not held in common ownership with adjoining land when the zoning laws that create the nonconformity were enacted. The second sentence protects, for a period of five years, lots that were held in common ownership with an adjoining lot. Case law has indicated that the first sentence of G. L. c. 40A § 6 “grants a perpetual exemption ‘from increased zoning restrictions provided certain conditions are met.’ ” Kimmett v. Town of Tolland, 79 Mass. App. Ct. 1132 (2011) (citing Johnson v. Board of Appeals of Andover, 78 Mass. App. Ct. 292 , 296 (2010)). The statute sets the floor of grandfather protection, but a municipality is free to enact grandfather provisions that provide even greater protection than found in the statute. Rourke v. Rothman, 448 Mass. 190 , 191 (2007) (citing Nichols v. Bd. of Zoning Appeal of Cambridge, 26 Mass. App. Ct. 631 , 632-633 (1988)). Therefore, if G. L. c. 40A § 6 is the minimum protection allowed for nonconforming lots in Massachusetts, and the first sentence provides a perpetual exemption from zoning changes (provided the lot meets minimum requirements), then we can infer that the grandfather clause found in the Ordinance also provides a perpetual exemption and protection unless specifically limited. An example of one such limitation can be found in G. L. c. 40A § 6's second sentence, the sentence which would be directly applicable to Lot 73. The second sentence puts a five year time limit on the exemption afforded to adjacent lots which were held in common ownership at the date of enactment, as Lot 73 and Lot 112 were. Thus, under the statute, Lot 73 and Lot 112 would not be exempted from the zoning changes, as the time period for exemption has long run, and Lot 73 did not meet the minimum size requirements. However, Ordinance § 27-12 has no such time limit, and Lot 73 meets the minimum lot size requirements of the Ordinance. Since the Supreme Judicial Court has interpreted the state’s grandfather protection as a “perpetual exemption,” only subject to the enumerated limitations, it appears that it is correct to interpret Ordinance § 27-12 in the same manner, since it can afford no less protection. Under this consideration, it is apparent that when Ordinance § 27-12 was enacted, any “existing lot of record” meant those lots existing and recorded as of the time of enactment of the Ordinance amendment. [Note 11] Therefore, the nature of grandfather provisions in general, the original purpose of Ordinance § 27-12 and the guidance from the Supreme Judicial Court all indicate that if Lot 73 became grandfathered and protected as a buildable lot on January 1, 1968, that protection extends to zoning changes and the common law merger doctrine.

In determining grandfather protection, the proper deed or plan to examine is the one immediately prior to the enactment of the zoning regulations which created the nonconformity. Adamowicz v. Town of Ipswich, 395 Mass. 757 , 762 (1985). The proper inquiry for Ordinance § 27-12 protection, therefore, is the status of the lot immediately prior to the zoning change that creates the nonconformity. If at that time a lot fulfills the requirements of § 27-12 then the lot is protected from future zoning changes and the merger doctrine. In 1950, the two lots were deeded together for the first time. The 1950 Deed, then, is critical to the analysis of whether Lot 73 was an existing lot of record. The 1950 Deed references the transfer of “two lots of land.”

The ZBA argues the case of Jones v. Zoning Bd. Of Appeals of Brockton, 18 LCR 358 (2010), aff’d (Appeals Ct. No. 10-P-1602 (2011) (unpublished memorandum) is controlling, as both cases involve deeds with a common metes and bounds description for two adjoining lots. [Note 12] The decision of this court in Jones is distinguishable from the case at hand, however, by significant factual differences. Unlike the case at bar, there were three lots in Jones , all shown on the same recorded plan, and all with a common name (East Terrace). A house straddled two of the lots, leaving the third (the lot at issue) arguably suited to protection under § 27-12. Also, the conveyance language found in the deeds in Jones, was much more indicative of a single lot being conveyed. The Jones deed describes the land as “formerly known as East Terrace, and being Lots #39, #40, and #41... .” and then, for a more particular description, states “said parcel is more particularly bounded and described as [a single set of metes and bounds].” In the case at bar, the deed describes the lots with a single set of metes an bounds, but then states “[t]he above described parcel is comprised of two lots of land: [Lot 112 and Lot 73, shown on different recorded plans],” (emphasis supplied) and then, for a more particular description, states “to which plans [the 1888 Plan and the 1889 Plan] reference may be had for a more particular description of the said premises.” [Note 13] Unlike Jones, the reference to “comprised of two lots of land” appears to be a specific statement of intent rather than just a reference to lot numbers on an old plan. [Note 14] [Note 15] Moreover, this reference to, and emphasis on, “two lots of land . . . for a more particular description,” is carried forward in all subsequent deeds, and nothing in these deeds indicates any deliberate intent to merge Lot 112 and Lot 73. [Note 16] Finally, as a practical matter, in Jones, at the time of the suit, the three lots were still held in common ownership, whereas in the case at bar, Lot 112 was conveyed separately to DeVeiga in 2002, and Lot 73 was conveyed separately to the Wainwright Investment Trust in 2004. Consequently, Plaintiff has an interest in only one lot, Lot 73. Finally, it is disingenuous for the City to argue that the two lots had merged based on the City’s conduct since 2004. The City has treated Lot 73 as a separate lot for a number of years, reclassifying it as a single lot on the Assessor’s map and also taking action with respect to foreclosing a tax lien of Lot 73 by itself (and not with Lot 112). [Note 17] [Note 18]

As a result of the foregoing, Lot 112 and Lot 73 were never deliberately or intentionally merged at any time after the enactment of the Ordinance. Lot 73 meets all the requirements for a buildable lot under § 27-12, including being an “existing lot of record”. [Note 19] Therefore, I find that Lot 73 is a buildable lot, and that the decision of the ZBA to the contrary exceeded its authority. I DENY the ZBA’s Motion for Summary Judgment, and ALLOW Plaintiff’s Cross-Motion for Summary Judgment.

Judgment to enter accordingly.