On March 30, 2007, Plaintiffs Cathleen Foley-Dupuy, individually and as Trustee of J.V. Realty Trust, and Matthew J. Dupuy (collectively, Foley-Dupuy) appealed pursuant to G. L. c. 40A, § 17, a decision of the Town of Barnstable Zoning Board of Appeals (Board) upholding a Cease and Desist Order and a Notice of a Zoning Violation issued by the Barnstable Building Commissioner (Commissioner) on September 13, 2006. [Note 1] Foley-Dupuy owns registered land, comprising two lots, Lots 12 and 13, located at 1321 Bumps River Road in Centerville. The lots are in a Residence D-1 Zoning District. Each lot contains a structure which Foley-Dupuy desires to use for residential purposes. The Board determined that Lot 13 was intended to be added to Lot 12 and merged as one lot for zoning purposes. Thus, it found that the operation of a second single-family dwelling on the lots violates the Town of Barnstable Zoning Ordinance. [Note 2]
At issue is whether the structure located on Lot 13, previously used as a barn, business and workshop (Lot 13 Structure), may be used as a single-family residence. The Board alleges that the lots merged when they came under common ownership and are considered one lot for zoning purposes. If treated as one lot, the operation of a second structure as a single-family residence violates the towns zoning ordinance. Foley-Dupuy argues that Lots 12 and 13 are separate independent lots as a result of two Approval Not Required (ANR) plans endorsed by the Planning Board pursuant to G. L. c. 41, § 81L, and that the endorsement of the ANR plans effectively granted approval to use the structures on the resulting lots as residences. [Note 3]
The parties agreed to present the case as a case stated based on stipulated facts and other evidence and without a formal trial. The parties submitted a Joint Statement of Agreed Evidence and forty exhibits. [Note 4] When faced with a case stated, the court is at liberty to draw from the facts and documents stated in the case any inferences of fact which might have been drawn therefrom at trial, unless the parties expressly agree that no inferences shall be drawn. Town of Ware v. Town of Hardwick, 67 Mass. App. Ct. 325 , 326 (2006), citing Nolan & Henry, Civil Practice § 33.7 (3d ed. 2004). It is the trial courts duty to make a correct ruling drawn from these agreed-upon facts. W. Mass. Theatres, Inc. v. Liberty Mut. Ins. Co., 354 Mass. 655 , 657 (1968). The facts, submitted as a Joint Statement of Agreed Evidence by the parties, are as follows:
1. On April 19, 2006, Plaintiff Cathleen Foley-Dupuy, as the sole Trustee of L. T. Realty Trust, under a Declaration of Trust dated April 15, 1987 (Trust), registered as Document No. 454467 on March 29, 1988, in the Land Registration District of the Barnstable County Registry of Deeds (Registry District), was the owner of two lots of land under Certificate of Title No. 14338 (Premises).
2. On April 19, 2006, the Premises owned consisted of two abutting lots sharing a common sideline boundary, each improved with a building: the first, Lot 12, containing approximately 24,746 square feet (or approximately 0.568 acres) shown on Plan 15087-J, a copy of which was filed with the Registry District on September 2, 1970, containing a three-bedroom single-family home approximately 1,244 square feet in area (House); and the second, Lot 13, containing approximately 6,901 square feet (or approximately 0.158 acres) shown on Plan 15087-K, a copy of which was filed with the Registry District on December 29, 1971, contained a two-bedroom single-family house approximately 820 square feet in area (Lot 13 Structure).
3. As of April 19, 2006, the Premises were shown as a single parcel numbered 119 on the Town of Barnstable Assessors Map 188, with a single street address of 1321 Bumps River Road in the village of Centerville, an unincorporated part of the Town of Barnstable.
4. On April 19, 2006, the Premises were located in the Residence D-1 Zoning District of the Town of Barnstable (RD-1). The General Provisions of the Town of Barnstable Zoning Ordinance § 240-7.F(1) allowed only one principal permitted building to be located on a single lot unless specifically provided otherwise, and the RD-1 Zoning District regulations, § 240-11.A allowed only a single family residential dwelling (detached) as a principal permitted use and contained no provision for more than one building on a single lot.
5. On April 19, 2006, unrelated tenants occupied each of the dwellings on the Premises.
6. On April 27, 2006, the Trust transferred the Premises to Cathleen Foley-Dupuy and Matthew Dupuy, husband and wife, as tenants by the entirety, by deed registered as Document No. 1032379. They were issued Transfer Certificate of Title No. 179919, on April 28, 2006.
7. On October 26, 2006, Cathleen Foley-Dupuy and Matthew Dupuy conveyed the Premises to the Trust by deed, registered as Document No. 1047619, and Transfer Certificate of Title No. 181411 issued. Title to the Premises has remained in the Trust since that date.
8. Lot 12 was created by an ANR plan filed with the Registry District on September 2, 1970, as Plan 15087-J (the J Plan), with the notation that separate certificates of title may issue for land shown hereon as Lots 9 thru (sic) 12.
9. Lot 13 was created by an ANR plan dividing Lot 11 on the J Plan which bears a notation that Lot 13 is to be incorporated with Lot 12. The K Plan that issued from the court, did not include a notation regarding incorporation of Lot 13 with Lot 12, but did include the notation that separate certificates of title may be issued for land shown hereon as lots 13 and 14.
10. Lots 12 and 13 were originally part of Lot A shown on Plan 15087 A-1, dated August 1930.
11. At the time Lot A was created it was improved with a single-family dwelling which had been constructed in 1915, on the portion of Lot A that would later become Lot 12.
12. Clarence A. Phinney (Phinney) acquired ownership of Lot A under Transfer Certificate of Title No. 4147, dated November 20, 1936, and took up residence in the house located thereon.
13. During the period of his ownership, Phinney resided in the house and either constructed a new wood-frame building or used an existing wood-frame building on the portion of Lot A which later became Lot 13 as a barn to keep his two horses (this structure has previously been referred to as Lot 13 Structure, see par. 2 above).
14. Harold Renzi (Renzi) acquired ownership of Lot A by quitclaim deed dated September 19, 1946, and was issued Transfer Certificate of Title No. 8412, dated September 20, 1946.
15. Renzi also resided in the house and used the Lot 13 Structure as a commercial garage/workshop for a painting business and a furniture stripping service from the time he acquired Lot A until he took a position as a custodian for the Town of Barnstable School Department in 1970, after which he discontinued commercial use of the Lot 13 Structure and converted it to a garage and workshop used for his personal use.
16. Renzi conveyed Lot A to Anne M. Buckley, who immediately conveyed Lot A to Renzi and Elaine S. Renzi, husband and wife, as tenants by the entirety, by quitclaim deed dated March 21, 1950. The Registry District issued Transfer Certificate of Title No. 11425 to the Renzis, and they established residence in the house following their marriage.
17. The Renzis divided Lot A into three lots numbered 5, 6 and 7, shown on Plan 15087-H (the H Plan). What would later become Lots 12 and 13 were originally part of Lot 5 on the H Plan at the time of this division.
18. The Renzis divided Lot 5 on the H Plan into two lots numbered Lots 11 and 12 on the J Plan. The J Plan shows the Lot 13 Structure as located on Lot 11.
19. Lot 12 on the J Plan, containing approximately 24,726 square feet, was conveyed by the Renzis to Harry Preble and Henrietta M. Preble (the Prebles), husband and wife, and Transfer Certificate of Title No. 49373 dated September 3, 1970, issued to them. The Renzis lived in the house on Lot 12 until the sale to the Prebles, but retained Lot 11, on which the Lot 13 Structure was located.
20. The Renzis divided Lot 11 on the J Plan into two lots numbered 13 and 14 on the K Plan, dated November 23, 1971, and combined Lot 9 on Plan 15087-H with Lot 14. After this division, the Lot 13 Structure was located on Lot13 on the K Plan.
21. Lot 13 on the K Plan was conveyed by the Renzis to the Prebles as tenants by the entirety who were then issued Transfer Certificate of Title No. 54139, dated March 23, 1972. As noted by the Board in its decision, the deed from Renzi to Preble specified that This lot [Lot 13] is intended to be added to and increase the size of the remaining land of the Grantees shown as Lot 12 on [the J Plan] and no right of way, by implication or otherwise, is hereby granted over the remaining land of the Grantors.
22. The Renzis sold Lot 14 to Vaughan Dobalian and Laurise Dobalian, husband and wife, as tenants by the entirety, who were issued Transfer Certificate of Title No. 56316, dated October 4, 1972.
23. The Prebles applied to the Planning Board for a special permit on June 14, 1973, to convert the Lot 13 Structure to a real estate office, but their application was denied. They did not appeal. They used the Lot 13 Structure for personal storage for the duration of their ownership of Lot 13.
24. The portion of the RD-1 zoning district in which the Premises are located fell in the following zoning districts prior to the adoption of the RD-1 district:
a. Town-wide district dividing the town into two districts, residential and non- residential, with non-residential being all land in use for business or industry other than farming, truck gardening, silviculture and animal husbandry at the time of adoption of Article 7 of the special town meeting on June 14, 1929, and any business or industrial use prohibited in a residential district;
b. Zoning district A adopted under Article 38 of the March 6, 1950 annual town meeting, permitting only one single-family dwelling as-of-right on a lot with a minimum area of 7,500 square feet and minimum width of 75 square feet;
c. Zoning district B-1 adopted under Article 42 of the March 6, 1956 annual town meeting permitting only one single-family dwelling as-of-right on a lot with a minimum area of 10,000 square feet and a width of 100 feet;
d. Zoning district RD-1 adopted under Article 49 of the March 4, 1958 annual town meeting permitting only one single-family dwelling as-of-right on a lot with a minimum of 20,000 square feet and a width of 125 feet;
e. Minimum lot size increased to one acre in all districts under Article 1 of the February 28, 1985 special town meeting; and
f. Resource overlay protection district adopted on October 26, 2000, permitting only one single-family dwelling as-of-right on a lot with a minimum area of 87,120 square feet.
25. Title to the Premises has been transferred together, evidenced by a single transfer certificate containing both Lots 12 and 13 since conveyance by the Renzis to the Prebles as follows:
a. To Roy Dupuy, Keinath Dupuy, Matthew Dupuy, and Cathleen Foley-Dupuy as tenants in common, with Certificate of Title No. 104764, dated December 30, 1985;
b. To Cathleen Foley-Dupuy as Trustee, Certificate of Title No. 113811, dated March 29, 1988;
c. To Matthew Dupuy and Cathleen Foley-Dupuy, husband and wife, as tenants by the entirety, Certificate of Title No. 126300, dated April 17, 1992;
d. To Cathleen Foley-Dupuy as Trustee, Certificate of Title No. 127243, dated July 16, 1992;
e. To Matthew Dupuy and Cathleen Foley-Dupuy, husband and wife, as tenants by the entirety, Certificate of Title No. 133139, dated March 8, 1994;
f. To Cathleen Foley-Dupuy, as Trustee, Certificate of Title No. 143388, dated January 23, 1997;
g. To Matthew Dupuy and Cathleen Foley-Dupuy, husband and wife, as tenants by the entirety, Certificate of Title No. 179919, dated April 28, 2006; and
h. To Cathleen Foley-Dupuy, as Trustee, Certificate of Title No. 181441, dated October 26, 2006.
26. When Roy Dupuy, et al. acquired the Premises in 1985, the Lot 13 Structure had electricity and running water.
27. Matthew Dupuy and Roy Dupuy, two of the four tenants in common at the time, obtained a permit from the Town of Barnstable Board of Health on June 13, 1986, to install a 1,000 gallon septic tank with a design flow of 15 gallons per person per day, 45 gallons total per day, and a total leaching area of 490 gallons per day on the Premises. A bathroom was installed in the Lot 13 Structure.
28. Both the Lot 13 Structure and the house on Lot 12 have been rented and used as separate non-owner occupied single-family residences since 1987.
29. The footprint of the Lot 13 Structure is unchanged since the time Phinney used it as a barn.
30. On April 19, 2006, Linda Edson (Edson) was employed by the Town of Barnstable Building Department in the capacity of Zoning Enforcement Officer for the Amnesty Program. On April 19, 2006, Edson sent a letter addressed to the Foley-Dupuys at the Premises, stating the Premises were being used as a multi-family home in violation of the Town of Barnstable Zoning Ordinance and demanded that the Foley-Dupuys contact Edson to initiate either a building permit application to restore the Premises to single- family use, an application under the Amnesty Program, or prove that the Premises could legally accommodate multi-family use.
31. The Amnesty Program to which Edson referred in her letter was a reference to Article II of Chapter 9 of the General Ordinances of the Code of the Town of Barnstable, Accessory Apartments and Apartment Units, which provided in part an opportunity to bring into compliance many of the currently unpermitted accessory apartments and apartment units. Section 9-12(A)).
32. In order to qualify for the Amnesty Program, housing units must be either a single unit accessory to an owner-occupied unit or units, or one or more units in a multi-family dwelling where there exists a legal multi-family use but one or more units are currently unpermitted.
33. Following the April 19, 2006 correspondence from Edson and the transfer of the Premises to Cathleen Foley-Dupuy and Matthew Dupuy on April 27, 2006, the following correspondence was exchanged:
a. Letter dated May 11, 2006, from Matthew Dupuy to Edson, representing that affidavits would be produced demonstrating that that two structures [the house on Lot 12 and the Lot 13 Structure] predated the adoption of the towns Zoning Ordinance and Bylaws.
b. Letter dated June 28, 2006, from Edson to Plaintiffs, alleging the Premises were in violation of Section 240-11 (RD-1 regulations) of the Zoning Ordinance and demanding they be brought into compliance or be subject to fines of no more than $300.00 per day.
c. Letter dated July 6, 2006, from Matthew Dupuy to Edson, claiming the western house [Lot 13 Structure] was present prior to 1948 and upgraded in the 1950s, and a Title V septic system installed circa 1986-87, and enclosing a copy of G. L. c. 81L, which governs the matter.
d. Letter dated July 10, 2006, from Matthew Dupuy to Edson, stating he did not understand her June 28 letter and requesting an appointment with Town Attorney Robert D. Smith. Copies of Plans 15087-J and 15087-K were enclosed.
e. Letter dated July 11, 2006, from Attorney Christine Palkowski, Town of Barnstable Regulatory Coordinator, to the attention of Matthew Dupuy at the law firm of Ardito, Sweeney, Stusse, Robertson and Dupuy, 25 Mid-Tech Drive, West Yarmouth, Massachusetts, stating that information provided did not prove that renting both buildings as separate residences was a permitted use and requesting additional information to the contrary.
f. Letter dated July 31, 2006, from Matthew Dupuy to Attorney Palkowski, thanking her for her letter dated July 11, 2006, and stating that the information she requested would be forthcoming.
34. On September 13, 2006, Town of Barnstable Zoning Enforcement Officer Robin C. Giangregorio (ZEO) mailed a notice (Notice), numbered BAR 72609, pursuant to G. L. c. 40, § 21D (non-criminal violation) to Matthew Dupuy at 1277 Bumps River Road, Centerville. The notice alleged that the Premises were in violation of Section 240-11 of the Zoning Ordinance as of September 1, 2006, and assessed a fine of $300.00.
35. On September 13, 2006, the ZEO issued a notice and order to Matthew Dupuy to cease and desist (Order) from an alleged violation of Section 240-11 at the Premises.
36. By letter dated September 18, 2006, addressed to the District Court Department of the Trial Court, First Barnstable Division, Matthew Dupuy served notice that the was contesting the violation alleged in the Notice, pursuant to G. L. c. 40, § 21D.
37. On or around December 7, 2006, a Clerk Magistrate of the First Barnstable Division held a hearing on Matthew Dupuys contest of the Notice, and found him not responsible for any violation of Section 240-11 as alleged in the Notice.
38. On September 19, 2006, Plaintiffs filed an appealed of the Order with Defendants, pursuant to G. L. c. 40A, § 8, which was assigned appeal number 2006-100.
39. Defendants duly advertised and notified all abutters of a hearing on November 15, 2006, on Plaintiffs appeal of the Order. The hearing was continued to February 28, 2007, at Plaintiffs request. The hearing took place on February 28, 2007, after which, on March 13, 2007, the Board issued a decision upholding the Order.
40. On March 29, 2007, Plaintiffs filed this action and gave notice to Defendants.
41. On or around February 22, 2011, Plaintiffs filed a motion for partial summary judgment on Count II of their Complaint, seeking a declaratory judgment that the decision of the First Barnstable Division Clerk Magistrate was res judicata, and that no violation of Section 240-11 was committed by Plaintiffs as alleged in the Order, and that the Boards decision was arbitrary, capricious, not supported by evidence and contrary to law. After a hearing on the motion on March 23, 2011, the Land Court (Trombly, J.) denied Plaintiffs motion for partial summary judgment and granted Defendants motion for partial summary judgment dismissing Count II of the Complaint.
Foley-Dupuy appealed the decision of the Board pursuant to G. L c. 40A, § 17, which states that [a]ny person aggrieved by a zoning board of appeals decision may seek judicial review in the Land Court. The court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require. As a party denied relief from the Board, Foley-Dupuy has standing to appeal the Boards decision.
The court must give a measure of deference to a local boards interpretation of its own zoning bylaws and ordinances. APT Asset Mgmt., Inc. v. Bd. of Appeals of Melrose, 50 Mass. App. Ct. 133 , 138 (2000); Advanced Dev. Concepts, Inc. v. Blackstone, 33 Mass. App. Ct. 228 , 231 (1992). This deference is due to a local zoning boards special and unique knowledge of the history and purpose of the towns bylaws. Wendys Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009), citing Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). The appropriate deference to the board's construction is not, however, without limit. See, e.g., Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 32 (1990). An incorrect interpretation of a zoning provision by a local board or building inspector is not entitled to deference. Shirley Wayside Ltd. Pship v. Bd. of Appeals of Shirley, 461 Mass. 469 , 475 (2012). A boards decision will not be overturned unless it is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of
Gloucester, 59 Mass. App. Ct. 68 , 72 (2003), citing MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970). In this case, the Boards decision is within its reasonable authority for several reasons, as set forth below.
I. An Endorsement Of An Approval Not Required (ANR) Plan Pursuant to G. L. 41, § 81P Does Not Automatically Confer Zoning Compliance or Approval
The parties Joint Statement of Agreed Evidence lays out the somewhat complicated history of the parcels here in issue. Foley-Dupuy owns two lots numbered 12 and 13 on the K Plan, dated November 23, 1971. [Note 5] The K Plan was based on an Approval Not Required (ANR) Plan endorsed by the Planning Board, which created Lot 13 by dividing the previously-existing Lot 11 into two lots, Lots 13 and 14. [Note 6] The Lot 13 Structure on what is now Lot 13 has been used over the years first as a barn, and later as a workshop and then personal storage space, and is currently used as a single-family residence. The structure on Lot 12 has been used as a single- family home since approximately 1915. [Note 7] Both the residence on Lot 12 and the Lot 13 Structure pre-date the effective date of the subdivision control law in the Town of Barnstable. [Note 8]
Under G. L. c. 41, § 81P, an owner of land may present a plan dividing land into two or more parcels and secure from a planning board an endorsement that approval under the subdivision control law [is] not required. To determine what qualifies for such an endorsement, one must look to G. L. c. 41, § 81L. This section exempts from the subdivision control law, among other actions, the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing. Under this existing building exemption, a plan may be endorsed by the local planning board as an ANR plan if it depicts the division of property into two or more parcels, with each parcel containing a structure which predates the adoption of subdivision control in that town. G. L. c. 41, § 81L (Section 81L).
Both Foley-Dupuy and the Board agree that the divisions shown on the J Plan and the K Plan do not constitute subdivisions within the meaning of G. L. c. 41, § 81L. Instead, they fall under the existing building exemption. Foley-Dupuy argues that an owner entitled to create new lots under Section 81L is also allowed to use the structures on the resulting lots as residences, if the relevant zoning by-law provides for residential use in the district. Because Lots 12 and 13 now lie in a Residence D-1 Zoning District, Foley-Dupuy contends that use of the Lot 13 Structure as a single-family residence is allowed, even though the lots do not comply with the dimensional requirements of the zoning by-law.
In its present configuration, Lot 13 does not meet the requirements of the towns zoning bylaw. It is undersized and does not have frontage. [Note 9] Foley-Dupuy primarily relies on Citgo Petroleum Corp. v. Planning Bd. of Braintree, 24 Mass. App. Ct. 425 , 427 (1987), in support of the argument that after a Section 81L division, the structures located on the resulting lots may be used as residences, even if the lots themselves fail to adhere to all requirements of the local zoning regulation. To hold otherwise, in Foley-Dupuys view, would render Section 81L meaningless: if Plaintiff could divide [a] locus with one structure (house) on each lot, but could not use the property, [Section 81L] would be gutted. Pl.s Mem. at 12. [Note 10]
However, the holding in Citgo is narrower than the expansive reading of it advanced by Foley-Dupuy. Citgo holds only that a planning board has no discretion to deny an ANR endorsement of a plan if the proposed division of land complies with Section 81L, even if the newly created lots would be nonconforming. The fact that a lot may be divided under the Section 81L existing building exemption does not mean that resulting lots automatically will be buildable or usable under zoning ordinances or bylaws. Citgo, 24 Mass. App. Ct. at 427; see
also Alley v. Bldg. Inspector of Danvers, 354 Mass. 6 , 7-8 (1968) (stating that ANR endorsement gives lots no standing under the zoning bylaws); Cricones v. Planning Bd. of Dracut, 39 Mass. App. Ct. 264 , 268 (1995) (an endorsement under Section 81P does not mean the resulting lots are buildable lots); Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 604 (1980) (stating that under Section 81P, a planning board is limited to determining whether a plan shows a subdivision under the subdivision control law).
At oral argument, Foley-Dupuy also pointed to this courts decision in Palitz v. Tisbury Zoning Bd. of Appeals, 22 LCR 22 (January 23, 2014) (appeal pending), for support. Palitz presented the question whether lots created under G. L. c. 41, § 81L that contained existing structures predating local adoption of subdivision control were automatically granted grandfathered status under G. L. c. 40A, § 6, if they failed to conform to zoning regulations. The plaintiffs in Palitz sought authorization to tear down and reconstruct their residence located on a nonconforming lot created by an ANR plan as a matter of right, without zoning relief. Foley-Dupuy argues that, because no variance or authority to make alterations to the Lot 13 Structure is being sought in the present case, the Lot 13 Structure may remain as a single-family residence, even though the facts of this case do not establish pre-existing nonconforming use of the Lot 13 Structure as a single-family residence. An endorsement to divide property under Section 81P does not exempt the new lots from zoning requirements, even if those lots contain pre-existing nonconforming dwellings. See Kenner v. Zoning Bd. of Appeals of Chatham, 76 Mass. App. Ct. 1110 (2010) (unpublished opinion pursuant to Appeals Court Rule 1:28), revd on other grounds, 459 Mass. 115 (2011); Branagan v. Zoning Bd. of Falmouth, 75 Mass. App. Ct. 1107 (2009) (unpublished opinion pursuant to Appeals Court Rule 1:28); Perotti-Cyrus v. Bd. of Appeals of Sandwich, Barnstable Super. Ct., CA No. 04-00767 (July 24, 2009) (stating that the act of conveying noncompliant lots created pursuant to Sections 81L and 81P triggers violations requiring zoning relief). Section 81L addresses only endorsement of ANR plans and has no effect on the zoning status of the lots shown on the ANR Plan; therefore, Foley-Dupuy cannot rely on previous ANR plans as proof of zoning compliance. Furthermore, Foley-Dupuys reasoning ignores the fact that the endorsed ANR Plan notes that Lot 13 to be incorporated with Lot 12. [Note 11]
II. The Use Of The Lot 13 Structure As A Single-Family Residence Is Not Protected As A Pre-existing Nonconforming Structure or Use Under G. L. c. 40A, § 6
The Board argues that because a division under Section 81L does not confer zoning approval, Foley-Dupuy may only use the Lot 13 Structure as a single-family residence if it qualifies for protection as a pre-existing nonconforming use pursuant to G. L. c. 40A, § 6 (Section 6). Section 6 protects structures and uses lawfully in existence at the time zoning is adopted, exempting them from certain subsequently adopted zoning provisions. The parties dispute the date on which zoning was first adopted in Barnstable. The Board claims it occurred in 1929, while Foley-Dupuy argues it was adopted in 1949.
The Board contends that the Lot 13 Structure may not be grandfathered under Section 6 regardless of the year zoning was adopted. [Note 12] If zoning commenced in 1929, then any use of the Lot 13 Structure as a business was illegal in this zoning district and no further analysis under Section 6 is necessary. If zoning commenced in 1949, then the use of the Lot 13 Structure as a business beginning in 1946 may have qualified as a pre-existing nonconforming use, but such use was abandoned or discontinued in 1970, eliminating any use protection under Section 6.
a. If The Town Of Barnstable Adopted Zoning in 1949, The Lot 13 Structure Lost Its Status As A Pre-Existing Nonconforming Use Due To Abandonment or Discontinuance
Under G. L. c. 40A, § 6, a town may define and regulate nonconforming uses and structures abandoned or not used for a period of two or more years. If zoning was adopted in 1949, Mr. Renzis use of the Lot 13 Structure as a painting and furniture-stripping business would constitute the pre-existing nonconforming use, protected under Section 6. Foley-Dupuy raises the argument that, as a pre-existing nonconforming structure standing on a lot created pursuant to Section 81L, the Lot 13 Structure should automatically be granted grandfathered protection under Section 6.
Even if the use of the Lot 13 Structure as a furniture business somehow qualified as a lawful pre-existing nonconforming use, the record establishes that use was discontinued in 1970. That year, then-owner Renzi stopped this use when he began employment as a custodian, at which time he converted the furniture stripping business to his personal workshop. Once the Prebles took ownership of Lot 13 in 1973, and for the duration of their ownership, they used the Lot 13 Stucture as storage space for their personal possessions.
Under the 1958 zoning bylaw in effect at the time Mr. Renzi terminated his business use, any lawful use existing at the time of the bylaws adoption would be discontinued after three years of non-use. Such use could not be reinstated without a special permit. The simple termination of an existing, nonconforming use for the required time period is sufficient to constitute discontinuance. Ka-Hur Enter., Inc. v. Zoning Bd. of Appeals of Provincetown, 424 Mass. 404 , 406-07 (1997). By the time the Lot 13 Structure was converted to a single-family residence by Foley-Dupuy in 1987, more than three years had passed. Any protected pre- existing nonconforming use had thus been abandoned.
III. The Lot 13 Structure Sits On A Lot That Was Previously Merged With An Adjacent Lot Held In Common Ownership
Under the theory that zoning was not adopted until 1949, the use of the Lot 13 Structure as a workshop or business beginning in 1946 could be considered lawful, provided it was not abandoned or discontinued. As noted above, this was not the case: Foley-Dupuys predecessor- in-title abandoned his use of the Lot 13 Structure as a business in 1970. However, even if the lawful use of the Lot 13 Structure had continued past 1970, any protection it enjoyed as a pre- existing nonconforming use was negated by the subsequent merger of Lot 13 with Lot 12 in 1972.
The lots merged when they both came under common ownership. The initial division of Lot 5 into Lots 11 and 12 in August 1970 created conforming lots owned by the Renzis. Lot 12 was conveyed to the Prebles on September 3, 1970. The creation of Lots 13 and 14 through the division of Lot 11 on November 23, 1971 resulted in a nonconforming lot (13), with a structure on it. Lots 12 and 13 were therefore merged for zoning purposes on March 23, 1972, when the Renzis conveyed Lot 13 to the Prebles, putting Lots 12 and 13 in common ownership.
The merger continued throughout the Prebles ownership. The zoning ordinance increased the minimum lot size to one acre in February 1985 which, combined with the abandonment or discontinuance of the former workshop or business use, rendered Lot 13 unusable as a separate lot. Under the common law merger doctrine, when adjacent nonconforming lots come into common ownership, they are normally merged and treated as a single lot for zoning requirements and subdivision purposes. Hoffman v. Zoning Bd. of Appeal of Cambridge, 74 Mass. App. Ct. 804 , 811 (2009); 3 Ziegler, Rathkopf's Zoning and Planning § 49:13, at 49:20-21 (2013). A landowner may not maintain a dimensional nonconformity on a parcel of land that he or she holds in common ownership with an adjacent parcel, if the owner can use the adjacent parcel to diminish the noncomformity. Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690-691 (1990).
A determination of whether lots have merged for zoning purposes requires an examination of the most recent instrument of record prior to the zoning change that rendered the lots nonconforming. See Adamowicz v. Ipswich, 395 Mass. 757 , 760-761 (1985) (stating that a lot meets the separate ownership requirements of Section 6 if the most recent instrument of record prior to the zoning change shows the lot as separately owned). Lots 12 and 13 merged when the Prebles, owners of adjacent Lot 12, purchased Lot 13. The Prebles conveyed both lots to Foley-Dupuy in 1985. Since 1985 the two lots continued to be conveyed together among the Foley-Dupuy family members, either in fee simple as individual co-tenants or as beneficiaries of the Trust. Therefore, the Prebles and the Foley-Dupuy family had the power and opportunity to add land to Lot 13 to diminish its nonconformity.
The Board relied on this merger in its decision upholding the Building Inspectors cease and desist order, in response to Foley-Dupuys argument that Lot 13 was created as a separate independent lot as a result of the K Plan division. Importantly, the ANR Plan creating Lot 13 contained a notation Lot 13 to be incorporated with Lot 12 and the deed from the Renzis to the Prebles specified that
This lot [Lot 13] is intended to be added to and increase the size of the remaining land of the Grantees shown as Lot 12 on [the J Plan] and no right of way, by implication or otherwise, is hereby granted over the remaining land of the Grantors. . .
Further, the Board found that at the time of the ANR and the K Plan,
Lot 12, the Prebles lot, was improved with the main house and Lot 13 had on it a smaller building that by all accounts was a woodworking shop and not an independent residence. Upon the transference of Lot 13 to the owners of Lot 12 (the Prebles), the smaller building could only become accessory to the main residence already located on the lot.
Referencing this notation, the Board viewed the use of two buildings as separate single-family residences on a merged lot as a violation of § 240-7.F(1): within residential districts, only one principal permitted building shall be located on a single lot.
Based on the stipulated facts and exhibits submitted, the court finds that the Boards decision was fully within the Boards reasonable authority. It was not based on a legally untenable ground nor was the Decision unreasonable, whimsical, capricious or arbitrary. Accordingly, the decision of the Board upholding the September 13, 2006 Notice of Zoning Violation and Order to Cease, Desist and Abate issued by the Building Division of the Town of Barnstable is AFFIRMED.
Judgment to issue accordingly.
CATHLEEN FOLEY-DUPUY, as TRUSTEE of J.V. REALTY TRUST, CATHLEEN FOLEY-DUPUY, and MATTHEW J. DUPUY v. GAIL C. NIGHTINGALE, DANIEL M. CREEDON, RON S. JANSSON, RANDOLPH CHILDS, and JAMES R. HATFIELD, as they are MEMBERS of the TOWN OF BARNSTABLE ZONING BOARD OF APPEALS.