SAM MEDINA vs. ANTHONY EONAS, STEPHEN BERNARD, RICHARD C. FRANCIS, KENNETH GALLIGAN and SUSAN NICASTRO, members of THE CITY OF BROCKTON ZONING BOARD OF APPEALS

Plaintiff filed his unverified Complaint on February 16, 2012, pursuant to G. L. c. 40A, § 17, appealing a decision of Defendant City of Brockton Zoning Board of Appeals (the "ZBA"), which 1) denied Plaintiff's appeal of a decision of the Building Inspector of the City of Brockton (the "Building Inspector") which held that property owned by Plaintiff was not a buildable lot, and 2) denied Plaintiff's application for a variance. The ZBA filed its Answer on February 27, 2012. A case management conference was held on April 9, 2012.

Plaintiff filed his Motion for Summary Judgment on April 4, 2012, together with supporting memorandum, Statement of Material Facts, and a Motion to Strike Answer. On August 17, 2012, the ZBA filed its Opposition and Cross Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Undisputed Facts, and Appendix. Plaintiff filed his Reply Memorandum on September 17, 2012, together with Affidavits of James Casieri (Brockton Superintendent of Buildings), John F. Johnson (former member of Brockton City Council), Carl Landerholm (former Brockton Superintendent of Buildings), John Dorgan (former Brockton Superintendent of Buildings), and David Tonis (former Brockton Superintendent of Buildings). A hearing was held on all Motions on September 24, 2012, and the matter was taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 5(c).

I find that the following material facts are not in dispute:

1. By deed dated November 1, 1952, and recorded with the Registry at Book 2240, Page 131, John J. Creeden and Ann M. Creeden (the "Creedens") took title to Lot 11 ("Lot 11") as shown on plan titled "Plan of House Lots in Brockton, Mass. For Sale by H. T. Anglim" and recorded with the Plymouth County Registry of Deeds (the "Registry") on March 28, 1899 at Plan Book 1, Page 200 (the "1899 Plan"). By deed dated December 23, 1952, and recorded with the Registry at Book 2253, Page 491, the Creedens took title to Lot 12 ("Locus") as shown on the 1899 Plan. Locus is located at Plot 9, Malvern Road, Brockton, MA. Lot 11 is located at Plot 10, Malvern Road, Brockton, MA. Locus is a vacant lot which has frontage of 60 feet on Malvern Road and contains 5,968 square feet. [Note 1] Lot 11 contains a single-family structure which has frontage of 60 feet on Malvern Road and contains approximately 5,985 square feet (based on the dimensions of the lot). [Note 2] Locus and Lot 11 abut. Historically, Locus and Lot 11 have been assessed as two separate lots by the City of Brockton.

2. By deed dated January 7, 1980, and recorded with the Registry at Book 4835, Page 263, the Creedens conveyed Lot 11 to themselves and John J. Creeden, Jr. and Janice M. Creeden (the "Jr. Creedens"), as joint tenants. By deed dated January 22, 1980, and recorded with the Registry at Book 4835, Page 264, the Creedens conveyed Locus to themselves and the Jr. Creedens, as joint tenants.

3. By two separate deeds dated October 27, 1983, and recorded with the Registry at Book 5492, Pages 84 and 86, Mrs. Creeden and the Jr. Creedens conveyed Lot 11 and Locus, respectively, to Robert G. McAuley and Beth A. McAuley (the "McAuleys"). [Note 3]

4. By two separate deeds dated June 5, 1987, and recorded with the Registry, at Book, 7765, Pages 207 and 209, the McAuleys conveyed Lot 11 and Locus, respectively, to Beth A. Zimmerman-McAuley ("Zimmerman-McAuley").

5. On January 21, 2004, Zimmerman-McAuley executed a Declaration of Homestead relative to Lot 11 only, which was recorded with the Registry at Book 27463, Page 189.

6. By document dated October 26, 2006, and recorded with the Registry at Book 33574, Page 26, Zimmerman-McAuley mortgaged Lot 11 to Mortgage Electronic Registration Systems, Inc.

7. By letter dated September 17, 2011, the Brockton Law Department issued a decision stating that Locus was a "buildable lot." By document dated September 12, 2011, the Building Inspector determined that Locus was a "buildable lot" ("Building Inspector Decision 1").

8. By deed dated November 1, 2011, and recorded with the Registry at Book 40525, Page 326, Zimmerman-McAuley conveyed Locus to Plaintiff.

9. Plaintiff applied for a building permit for Locus accompanied by a Building Permit Plot Plan dated November 17, 2011 and prepared by J. K. Holmgren Engineering, Inc. (the "2011 Plan"). The 2011 Plan shows an exterior fire escape stairway (the "Stairway") attached to the residential structure on Lot 11, which Stairway straddled the lot line between Lot 11 and Locus. The Stairway encroached on Locus by several feet but, at the summary judgment hearing, counsel for Plaintiff indicated that the Stairway had been removed. 10. By letter dated December 12, 2011, the Brockton Law Department rescinded Building Inspector Decision 1. By document dated December 16, 2011, the Building Inspector determined that Locus was not a "buildable lot" ("Building Inspector Decision 2").

11. Plaintiff filed an Application (the "Application") with the ZBA on December 15, 2011, challenging Building Inspector Decision 2 and seeking a variance for Locus for lot area, lot frontage and lot width.

12. By decision dated January 10, 2012, the ZBA denied the Application (the "ZBA Decision"). The ZBA Decision stated the vote to overturn the Building Inspector Decision 2 (relating to whether Locus is a buildable lot) was denied on the following basis:

No hardship dealing with the locus was found by the board. Granting would derogate from the intent of the zoning by-laws and will negatively impact the orderly development of the neighborhood. [Note 4]

13. Both Lot 11 and Locus are located in an R-1-C zoning district. In such zone the current (effective December 28, 1967) minimum lot size is 30,000 square feet, and the minimum frontage is 175 feet.

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A. Motion to Strike Answer:

Plaintiff moves to strike the answer of Defendant on the grounds that "the ZBA filed a boiler plate answer which does not even bother to address the principal question: Why is the locus not a buildable lot...The answer is wholly insubstantial [sic] and not advanced in good faith."

First and foremost, Plaintiff should not attack the pleadings of other parties when the Complaint barely survives the "notice pleading" requirement of Rule 8 of the Mass. R. Civ. Proc. For example, the Complaint alleges that the "decision of the [ZBA] was arbitrary and capricious, and exceeded the authority of the Board," but the proceeding paragraphs of the Complaint give absolutely no reasons to support of this allegation. Second, the Answer is sufficient as a matter of law because the Answer responds in a satisfactory manner to each paragraph contained in the Complaint. [Note 5] The vague Complaint was met with its equal counter-part. Plaintiff's Motion to Strike the Answer is DENIED.

B. Merger of Lot 11 and Locus

Plaintiff argues that Locus is a buildable lot because it is not merged with Lot 11. The ZBA argues that Locus is unbuildable because a single family residence straddles the property line between Lot 11 and Locus, resulting in a merger of the two lots.

The central issue in this case is whether Lot 11 and Locus (both substandard lots) were merged where a portion of the principal structure (the Stairway) on Lot 11 straddles the lot line between Lot 11 and Locus.

G. L. c. 40A, § 6, para. 4, states in relevant part as follows:

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 requirements but at least five thousand square feet of area and fifty feet of frontage.

Section 27-12 of the Brockton Zoning Ordinance (the "Ordinance") states as follows:

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 exist or 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 record ownership at the time of 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. [Note 6]

Section 27-61 of the Ordinance defines "lot" or "zone lot" as follows:

A parcel of land identical in ownership throughout, bounded by other lots or by streets, which is designated by its owner to be used, developed or built upon as a unit.

Pursuant to G. L. c. 40A, § 6, para. 4, an exemption from a change in dimensional zoning requirements applies only if the lot at issue was not held in common ownership with adjoining land. In the case at bar, Locus and Lot 11 were in common ownership from 1952 until 2011. [Note 7] Therefore as of 1967, when the current Ordinance was adopted, Locus was not grandfathered as a nonconforming pre-existing lot under the state statute because both Locus and Lot 11 were in common ownership.

Pursuant to more indulgent local bylaws, however, lots under common ownership may qualify for exemption from zoning ordinances or bylaws that increase area, frontage, width, yard, or depth requirements. See Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 , 521-522 (1987); McKenna v. Swartz, 21 Mass. L. Rep. 730 (2006). Accordingly, this court must next look to the Ordinance for guidance. Section 27-12 of the Ordinance gives a more liberal interpretation of grandfather status than does the state statute, requiring only that the lot at issue be a lot of record and not be held in common ownership with vacant adjoining land. In the case at bar, the lot at issue (Locus) was shown on a recorded plan (the 1899 Plan) that predated the Ordinance, and the adjoining land (Lot 11) was not a vacant lot in 1967 when the Ordinance was enacted. As such, Plaintiff argues, Locus is protected as a pre-existing nonconforming lot under Section 27-12 of the Ordinance.

Although the parties do not dispute that Locus was shown on a recorded plan, [Note 8] and Lot 11 was not vacant in 1967, they have different interpretations of the word "lot" as used in the Ordinance. Plaintiff relies on Correia v. Brockton Zoning Board of Appeals, 12 LCR 32 (2004) and Dalkouras v. Brockton Zoning Board of Appeals, 20 LCR 10 (2012), in both of which cases this court found that the owners of the lot at issue in each case and the adjoining lot treated the two lots as separate lots, and as a result the lot at issue was a pre-existing nonconforming lot. Plaintiff therefore similarly argues that the owners of Lot 11 and Locus have consistently treated the lots as two separate lots. The facts in the case at bar generally justify the conclusion that the owners of Locus have consistently treated Locus as a separate lot from Lot 11. The two lots have been deeded separately since 1952, the date that the two lots were joined in common ownership. The common owner of both lots in 2004 filed a Declaration of Homestead on only Lot 11. In 2006 the owner of both lots recorded a mortgage against only Lot 11. As indicated in Building Inspector Decision 1, the two lots have also been taxed separately.

Where the parties differ is whether the two lots have been used separately. Plaintiff argues that Lot 11 has been the only lot that was developed, and Locus is a vacant lot. The ZBA argues that, pursuant to the 2011 Plan, the residence on Lot 11 straddles the lot line and therefore the two lots have been combined. In essence, the ZBA argues that the prior owners of Locus and Lot 11, by their construction on Locus of the Stairway for the benefit of Lot 11, designated Lot 11 and Locus together to be used as a single unit, and therefore the two parcels together comprise a "lot" as defined in Section 27-61 of the Ordinance.

The 2011 Plan shows an exterior stairway (the Stairway) which encroaches several feet onto Locus. Neither party has provided evidence of when the Stairway was built, or whether there was a building permit issued for construction of the Stairway. There is no evidence that either party had any knowledge that the Stairway encroached onto Locus until the 2011 Plan was prepared. [Note 9] In Correia, the adjoining "vacant" lot at issue had on it "extensive plantings, stairways and retaining walls, a fishpond, stone barbeque and a portion of a driveway." Notwithstanding the foregoing, and the fact that the lot at issue was used together with the developed lot as a residence, this court held that the lot at issue was a pre-existing nonconforming lot pursuant to Section 27-12 of the Ordinance, and entitled to be buildable. Correi, supra, at 35. Moreover, this court noted that "there is nothing in the Ordinance's usage of the term "lot" under either Section 27-12 or Section 27-61 that states anything about a buildable lot being vacant or undeveloped." Id. at 34.

It would therefore appear that the ZBA's opinion that the Stairway, which neither party had knowledge encroached on Locus, resulted in a merger of the two lots, is inconsistent with Correia. The ZBA's argument that the Stairway, an exterior structure, was part of the principal structure because it connected to it, is misleading. There is no evidence in the record that the Stairway was a critical part of the residence or necessary for the legal existence of the residence. In fact, at the Summary Judgment hearing, Plaintiff's counsel indicated that the Stairway has since been removed from the structure on Lot 11. The fact that the Stairway encroached onto Locus does not, as a matter of law, indicate an intention to treat Locus and Lot 11 as one. See McKenna, supra, at 730 (adjoining lots not merged even though garage as accessory structure straddled lot line, and building permit applicant agreed to remove garage in conjunction with construction on adjoining, "vacant" lot); Seltzer, supra, at 523 ("While the location of the house [straddling the two adjoining lots] was certainly evidence...of an intent to treat the lots as one, we do not think...that it had that effect as a matter of law.")

The Stairway is certainly not a habitable structure and the de minimis encroachment of the Stairway onto Locus is insufficient to conclude that the house on Lot 11 constitutes a habitable structure on Locus. [Note 10] See id. Moreover, the structures that existed on the vacant lot in Correia were knowingly built on the vacant lot and used by the owner of the lot as a part of his residence. In the case at bar, the owner of Locus carelessly, and unknowingly built the Stairway to encroach upon Locus. As a result, there could not be an intent to use Locus for the principal structure on Lot 11. [Note 11] Furthermore, as discussed, supra, Lot 11 and Locus have been deeded out separately and assessed separately by the City of Brockton.

Finally, the ZBA relies on the concept that a basic purpose of zoning laws is to foster the creation of conforming lots, and for the proposition that zoning laws should preclude an owner from availing himself of a nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity. See e.g. Lindsay v. Bd. of Appeals of Milton, 362 Mass. 1216 (1976). This court is in agreement with these basic concepts. However, it appears that the purpose of Section 27-12 of the Ordinance was to offer more generous protection of certain nonconforming lots (i.e. ones housing single-family structures) than the state statute does. [Note 12]

As a result, I find that Locus is a pre-existing nonconforming lot pursuant to Section 27-12 of the Ordinance, and that the decision of the ZBA interpreting the provisions of Section 27-12 of the Ordinance exceeded its authority. Plaintiff's Motion for Summary Judgment is hereby ALLOWED and the ZBA's Cross-Motion for Summary Judgment is hereby DENIED.

Judgment to enter accordingly.