ROBERT G. RICE v. ELIZABETH T. QUIRK, NANCY G. RUBENSTEIN, STEPHEN A. GARANIN, JONATHAN G. GOSSELS, and JONATHAN F.X. O'BRIEN, as they are the Members of the Town of Sudbury Zoning Board of Appeals, and THOMAS E. POWERS, Trustee of R&K Realty Trust

This is an appeal pursuant to G. L. c. 40A, § 17, through which Plaintiff challenges a decision of the Town of Sudbury Zoning Board of Appeals (ZBA), which overturned a determination by the Sudbury Building Inspector (Inspector) that two adjacent lots, referred to as Lot 5A (Locus) and Lot 6A (Lot 6A) have merged for zoning purposes, rendering Locus unbuildable. The dispute began when an attorney for Defendant, Thomas E. Powers, Trustee of R&K Realty Trust (Trustee Powers), owner of Locus, asserted in a letter to the Inspector that Locus is a buildable lot. The Inspector responded that Locus and the abutting Lot 6A came into common ownership on May 6, 1971, and as a result the two undersized lots merged and Locus lost its status as a legally pre-existing non conforming lot. Trustee Powers filed an appeal of the Inspector’s determination with the ZBA, which disagreed that the lots had merged and overturned the Inspector’s determination.

Plaintiff Robert G. Rice (Rice), an abutter to Locus, filed this complaint on December 29, 2010, appealing the ZBA’s decision. On October 12, 2011, Rice filed a motion for summary judgment. Trustee Powers cross-moved, later filing an opposition to Plaintiff’s motion. A hearing was held on both motions on December 15, 2011, at which all parties were heard.

The record establishes the following facts which are not in dispute:

The parties

1. Plaintiff Rice owns and resides with his wife at property known as 8 Pheasant Avenue, Sudbury, which directly abuts Locus (Plaintiff’s Property).

2. Trustee Powers owns Locus under a deed dated January 20, 1988, recorded with the Middlesex South District Registry of Deeds in Book 18838, at Page 491. [Note 1]

3. Both Plaintiff’s Property and Locus are shown on a plan entitled “Plan of Lots owned by Walter Beckett, Sudbury, Mass,” dated June 1968, Arthur M. King Surveyor, recorded as Plan 496 of 1968, in Book 11505, at Page 675.

4. By deed dated January 20, 1988, recorded in Book 18838, at Page 475, Thomas E. Powers and his wife, Nancy J. Powers, own, as tenants by the entirety, Lot 6A which abuts Locus on Union Avenue. Locus has an address of 201 Union Avenue, Sudbury.

5. Defendants, Elizabeth T. Quirk, Nancy G. Rubenstein, Stephen A. Garanin, Jonathan G. Gossels, and Jonathan F.X. O'Brien, were members of the ZBA at the time of the ZBA’s decision.

Relevant zoning history

6. In 1954 the Town of Sudbury (Town) adopted a zoning Bylaw which established a minimum lot size of 22,500 square feet in the Residence A-1 Zone. Locus and both abutting lots (Plaintiff’s Property and Lot 6A) are located within the Residence A-1 Zoning District.

7. In March 1955, the Town increased the minimum lot size from 22,500 to 30,000 square feet in the Residence A-1 Zone.

8. On April 6, 1955, the Sudbury Planning Board approved a subdivision plan filed by Walter A. Beckett (Beckett) dated February 5, 1955. The 1955 Plan showed several buildable lots including Lot 5 containing 22,762 square feet, more or less, and Lot 6, containing 23,481 square feet. When the 1955 Plan was initially filed with the Planning Board, the lots conformed to the then minimum lot size of 22,500 square feet. During the subdivision process, the minimum lot size of 22,500 square feet in a Residence A-1 District was increased to 30,000 square feet.

9. In 1958 the Town again increased the minimum lot size from 30,000 to 40,000 square feet in the Residence A-1 Zone.

10. In 1968, the Planning Board endorsed an ANR plan submitted by Beckett by which Lot 5 was reduced from 22,762 to 22,743 square feet (and was renamed Lot 5A, referred to herein as Locus), and Lot 6 (renamed Lot 6A) was reduced from 23,481 to 22,885 square feet. [Note 2]

Relevant conveyances

11. By deed dated August 26, 1970, recorded in Book 11881, at Page 439, Beckett and his wife Virginia M. Beckett, Trustees of the Defense Housing Trust, conveyed Lot 6A to Robert M. Bozeman and Angelyne R. Bozeman, husband and wife, as tenants by the entirety.

12. The following year, Walter A. Beckett conveyed Locus to Robert M. Bozeman and Angelyne R. Bozeman, Trustees of A. & B. Realty Trust (Bozeman Trustees) by deed dated May 6, 1971, recorded in Book 12089, at Page 619. The Declaration of Trust creating the A. & B. Realty Trust is recorded in Book 12089, at Page 620, immediately following the deed. The beneficiaries of the A.& B. Realty Trust are George Russell Bozeman, Robert M. Bozeman Jr., Marsha Bozeman, and Beverly Bozeman, with one-quarter interests each.

13. As of the 1971 conveyance of Locus, Locus and abutting Lot 6A were owned by the Bozemans, either in their trustee capacities or as tenants by the entirety.

14. By deed recorded January 27, 1988, in Book 18838, at Page 475, Robert M. Bozeman and Angelyne R. Bozeman, husband and wife, as tenants by the entirety, conveyed Lot 6A to Thomas E. Powers and Nancy J. Powers . . . husband and wife, as tenants by the entirety.

15. Thomas E. Powers created the R&K Realty Trust as sole Trustee, by Declaration of Trust recorded January 27, 1988, in Book 18838, at Page 484. 16. The Bozeman Trustees conveyed Locus to Trustee Powers by deed dated January 20, 1988, recorded January 27, 1988, in Book 18838, at Page 491.

17. As of the conveyance of Locus, Locus and abutting Lot 6A were owned respectively by Mr. Powers in his trustee capacity and Mr. and Mrs. Powers, as tenants by the entirety.

18. On August 10, 2010, an attorney for Trustee Powers sent a letter to the Inspector asserting, on his client’s behalf, that Locus was a buildable lot.

19. By letter dated September 10, 2010, the Inspector responded, stating that on May 6, 1971, Locus and Lot 6A had merged and therefore Locus lost its protected status.

20. Powers appealed to the ZBA. A public hearing was held, being duly advertised and proper notice given. On December 6, 2010, the ZBA unanimously overturned the Inspector’s determination that the lots had merged.

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This action is before the court pursuant to the parties’ cross-motions for summary judgment. “Rule 56(c) of the Massachusetts Rules of Civil Procedure . . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (quoting Mass. R. Civ. P. 56(c)). In reviewing a motion for summary judgment, the court shall not assess “the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970) (quoting Gordon v. American Tankers Corp., 286 Mass. 349 , 353 (1934)). A motion for summary judgment will not be granted “merely because the facts [the movant] offers appear more plausible than those tendered in opposition, or because it appears that the adversary is unlikely to prevail at trial.” Bailey, 386 Mass. at 370 (quoting Hayden v. First Nat'l Bank, 595 F.2d 994, 997 (5th Cir. 1979) (internal quotation marks omitted)). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. G.M. Corp., 410 Mass. 706 , 711 (1991). This case is ripe for summary judgment because the material facts are not in dispute and the point on which this case turns is a matter of law.

As framed by the parties in their cross-motions, the issue in this case is whether Locus continues to be grandfathered as a buildable lot or whether it has been merged with Lot 6A and lost its grandfathered status. Plaintiff argues that Locus merged with Lot 6A on May 6, 1971, upon the conveyance of Locus to Robert M. Bozeman and Angelyne R. Bozeman as Trustees of A. & B. Realty Trust because they already owned the adjacent Lot 6A at as husband and wife. Defendant argues that the Bozemans held title to Locus separately from Lot 6A because they owned the former as Trustees of A. & B. Realty Trust and the latter as tenants by the entirety. Additionally, Defendant seems to imply that because Locus was, at a certain point in time, a protected nonconforming buildable lot, it should retain its protected status.

With respect to Defendant Powers’ second argument, case law is clear that two adjoining lots in common ownership are merged for zoning purposes at the time that they fall under common ownership, even if they were seperately owned at the time of a zoning change. Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 (2001). [Note 3] For reasons articulated below, this court agrees with the Inspector’s determination that, assuming Locus was a buildable lot as of May 6, 1971, upon the conveyance of Locus to Robert M. and Angelyne R. Bozeman, Trustees of A. & B. Realty Trust, Locus and Lot 6A would have merged into one parcel for zoning purposes. [Note 4] G. L. c. 40A, § 6, fourth par. provides 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.

This provision protects nonconforming lots that were not held in common ownership with adjoining land when the zoning laws that create the nonconformity were adopted. The statute sets the floor for so-called “grandfather” protection, and municipalities are free to expressly adopt more liberal grandfather provisions than those found in the statute. Marinelli v. Bd. of Appeals of Stoughton, 63 Mass. App. Ct. 902 , 903 (2005). This court will analyze this case solely under the provisions of the Zoning Act, as the summary judgment record does not include the Sudbury Bylaw and all parties agreed that its provisions are substantively identical to G. L. c. 40A, § 6.

“A basic purpose of the zoning laws is ‘to foster the creation of conforming lots.’” Asack v. Bd. of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999) (quoting Murphy v. Kotlik, 34 Mass. App. Ct. 410 , 414, n. 7 (1993)). It is a “principle of longstanding application in the zoning context [that] a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity.” Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690 (1989), affirmed, 406 Mass. 1008 (1990). “In other words, the owner cannot avail himself of the nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity.” Sorenti v. Bd. of Appeals of Wellesley, 345 Mass. 348 , 353 (1963).

The so-called “merger doctrine” is a powerful tool in achieving the Zoning Act’s goal of creating conforming lots. Preston, 51 Mass. App. Ct. at 238. Under the merger doctrine, “contiguous substandard lots under common ownership may lose their separate identity and be treated as a single parcel for purposes of zoning area and frontage requirements and subdivision restrictions.” Edward H. Ziegler, Jr., Arden H. Rathkopf, and Daren A. Rathkopf, Rathkopf's The Law of Zoning and Planning, § 49:13 (4th ed.). The purpose of the merger doctrine is to enable an owner who has adjacent land within his or her power, by adding such land to the substandard lot, to comply with zoning requirements or at least minimize the nonconformity. Serena, 27 Mass. App. Ct. at 691 (citing Sorenti, 345. Mass. at 348, 353). Case law instructs that the determination of common ownership under G. L. c. 40A, § 6 rests “not [on] the form of ownership, but [on] control: did the landowner have “within his power,” i.e., within his legal control…use [of] the adjoining land so as to avoid or reduce the nonconformity.” Serena, 27 Mass. App. Ct. at 691 (emphasis added).

Under the Declaration of Trust of the A. & B. Realty Trust, the Bozeman Trustees controlled the Trust res, as if it were their own, free of trust. Article I bestows the Bozeman Trustees with full power including “every possible power and right of dealing with the trust estate which an individual can have over his own property.” Article V makes them answerable to the beneficiaries only for willful breach of trust. Article VII permits their sole discretion as to whether to distribute income or principal from Locus to the beneficiaries. Finally, Article XII gives them carte blanche to alter, amend or revoke the trust.

In Planning Bd. of Norwell v. Serena, the Appeals Court found that two lots, one owned by the Serenas as tenants by the entirety, and one owned by the Serenas as Trustees of a realty trust of which they were the sole beneficiaries, were merged because the Serenas controlled both lots. Serena, 27 Mass. App. Ct. at 691. [Note 5] The Appeals Court held that it was clear that all of the land area in the Serenas’ two lots was available to avoid or reduce the dimensional nonconformity of either lot viewed in isolation. Id. Here, as in Serena, the Bozemans had control of both Locus and Lot 6A as of May 6, 1971, due to the sweeping powers granted the Bozemans as trustees. The control of the Bozemans as trustees over Locus closely mirrored that of the control they had over Lot 6A, the adjacent nonconforming lot which they owned as tenants by the entirety. All of the land in each of the Bozemans’ two lots was “available to avoid or reduce the dimensional nonconformity of either lot viewed in isolation.” Serena, 27 Mass. App. Ct. at 691. Further, the application of the merger doctrine to Locus and Lot 6A would promote the longstanding principal in the zoning context that an “owner cannot avail himself of the nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity.” Sorenti, 345 Mass. at 353. Accord, DiStefano v. Town of Stoughton, 36 Mass. App. Ct. 642 , 645 (1994).

Plaintiff further alleges that Locus and Lot 6A merged in 1988, upon the conveyance of Locus to Trustee Powers, when he and his wife already owned the adjacent Lot 6A as tenants by the entirety. Because this court finds that Locus and Lot 6A had previously merged in 1971, it is unnecessary to address whether the two lots merged under the current ownership. [Note 6]

This court concludes that that Defendant’s Cross-Motion for Summary Judgment on the merits is denied, and Plaintiffs’ Motion for Summary Judgment is granted, annulling the decision of the ZBA. The Inspector’s determination that Locus is not buildable is supported by this record as a matter of law.

Judgment to issue accordingly.