This case involves a dispute between Plaintiff Pitsick, LLC (Plaintiff) and Defendants Members of the Zoning Board of Appeals of the City of Newton (together, the ZBA) and local landowners Defendants Alan Filzer (Filzer), Monica and Paul Crowley (together, the Crowleys), Diane and Arthur Dion (together, the Dions), Judith Mannix (Mannix), John Koot (Koot), and Gerald Burg (Burg) (altogether, the Abutters) [Note 1] with respect to two building permits (the Building Permits) issued by the Newton ISD for two lots owned by Plaintiff. The Newton ISD had initially issued the Building Permits, but, after an objection by the Abutters as to the issuance of the Building Permits (which culminated in the Prior Action before this court), the ZBA ultimatelydecided to revoke them.
Plaintiff then commenced this action by filing an unverified complaint on May 8, 2013, by which it sought, pursuant to G. L. c. 40A, § 17, to appeal the decision of the ZBA (a) to allow an administrative appeal by the Abutters of the issuance of the Building Permits, and upon allowing said appeal, (b) to revoke the Building Permits. On May 13, 2013, Plaintiff filed a first amended complaint, which added the Abutters as parties to this case in accordance with G.L c 40A, § 17. [Note 2] The ZBA appeared in this case through counsel on May 15, 2013. A case management conference was held on June 17, 2013. On June 24, 2013, Plaintiff filed a second amended complaint, which added as party defendants three additional members of the ZBA (Harvey A. Creem, Vincent Farina, and William M. McLaughlin), who had not previously been named.
On July 21, 2014, Plaintiff filed its motion for summary judgment, which was supported by a memorandum of law and affidavits of Douglas J. Stefanov (Stefanov) (licensed architect), Pitrowski (one of Plaintiffs principals), and Cusik (another of Plaintiffs principals). On August 25, 2014, the ZBA filed a cross-motion for summary judgment and opposition to Plaintiffs motion, together with a supporting memorandum of law and affidavits of Julie B. Ross (one of the ZBAs attorneys) and Lojek (Commissioner of the Newton ISD). On August 26, 2014, the Abutters filed their own cross-motion for summary judgment and opposition to Plaintiffs motion, together with a supporting memorandum of law and affidavit of Dennis C. Rieske (Rieske) (licensed architect). Plaintiff filed its reply brief on September 5, 2014. On September 18, 2014, the Abutters filed a motion for leave to late file a sur-reply brief, together with such sur-reply brief and a supplemental appendix (which included an affidavit of Koot, one of the Abutters). On September 22, 2015, Plaintiff moved to strike the Abutters motion to file a sur-reply brief. A hearing was held on all open motions on September 22, 2014, and the matter was taken under advisement.
Based upon the documents and affidavit testimony in the summary judgment record, I find that the following material facts are not in dispute -- some of which are taken from Land Court Decision 1:
1. The properties that are the subject of this action are three consecutive lots located at 18, 22, and 26 Goddard Street in Newton Highlands, Massachusetts (respectively, Lot 111", Lot 110", and Lot 109", and together, the Goddard Street Lots), which were created pursuant to a plan of land entitled Revised Plan of Charlemont Newton Highlands, Mass. Belonging to Neil Macintosh, which was dated November, 1920 (revised July 10, 1922) and prepared by C. H. Ganett, C.E. (The 1920 Plan). The 1920 Plan was recorded in the Middlesex County South Registry of Deeds (the Registry) in Plan Book 307, Plan 45. Each of the Goddard Street Lots contained 5,000 square feet and had fifty feet of frontage on Goddard Street. The Goddard Street Lots were originally located in a single residence C zoning district, but, due to amendments to the local Ordinance, are now located in a single residence 3 zoning district.
2. In or about 1923 - 1924, a single family residence (the Lot 110 House) [Note 3] was constructed on Lot 110. In or around 1928, a freestanding garage (the Garage) servicing the Lot 110 House was constructed across the lot line between Lot 110 and Lot 111. The Garage was demolished in or around 2011.
3. By deed dated December 9, 1931 and recorded in the Registry at Book 5619, Page 222 (the 1931 Deed), Wendell E. Ryerson (Ryerson) conveyed Lots 110 and 111 to Catherine Arsenault (Catherine). [Note 4]
4. By deed dated October 10, 1938 and recorded in the Registry at Book 6315, Page 42 (the 1938 Deed), Bertha May Arsenault (Bertha) conveyed Lot 109 to Louise Alice Arsenault (Louise).
5. In October of 1940, the Ordinance (which was enacted in 1922) was amended (the 1940 Amendment) to impose frontage and lot size requirements for the first time (seventy feet of minimum frontage and 7,000 square feet minimum lot area) on developed lots in the single residence C zoning district, which district was also created by the same amendment to the Ordinance.
6. By deed dated November 16, 1943 and recorded in the Registry at Book 7547, Page 26 (the 1943 Deed), Louise conveyed Lot 109 to Catherine, who, pursuant to the 1931 Deed, already owned Lots 110 and 111 -- thus bringing the Goddard Street Lots under common ownership.
7. In December of 1953, the Ordinance was amended (the 1953 Amendment) to increase frontage and lot size requirements in a newly-reclassified single residence C zoning district (in which the Goddard Street Lots are located) to eighty feet and 10,000 square feet.
8. By deed dated February 15, 1954 and recorded in the Registry at Book 8219, Page 420 (the 1954 Deed), Catherine conveyed Lots 110 and 111 to Beatrice Arsenault (Beatrice) and Bertha as tenants in common.
9. By deed dated November 3, 1955 and recorded in the Registry at Book 8604, Page 580 (the 1955 Deed), Catherine conveyed Lot 109 to Bertha (who, pursuant to the 1954 Deed, already owned a one-half interest in Lots 110 and 111).
10. By deed dated February 15, 1991 (the 1991 Deed), Bertha conveyed her sole interest in Lot 109 to herself and Beatrice as joint tenants. As of the date of the 1991 Deed, Bertha and Beatrice therefore jointly owned all three Goddard Street Lots -- Lots 110 and 111 as tenants in common, and Lot 109 as joint tenants.
11. By two deeds each dated February 24, 1995 and recorded in the Registry at Book 25201, Pages 432 and 433 (together, the 1995 Deeds), Bertha and Beatrice conveyed all three Goddard Street Lots to the Arsenault Family Trust (the Arsenault Trust).
12. By deed dated January 3, 2011 and recorded in the Registry at Book 58212, Page 297 (the 2011 Deed), the Arsenault Trust conveyed all three Goddard Street Lots to Pitrowski and Cusick, principals of Plaintiff, as tenants in common.
13. On December 8, 2011, the Newton ISD issued a building permit (No. 11100408) to Pitrowski for the construction of a 2.5 story single family house on Lot 109. On December 12, 2011, the Newton ISD issued a second building permit (No. 1110004409) to Pittrowski for the construction of a 2.5 story single family house on Lot 111. [Note 5] No appeal of the issuance of either of these two building permits (defined above as the Building Permits) was filed within thirty days of their issuance. At or around this time, Plaintiff commenced excavation and tree removal on Lots 109 and 111 and razed the garage located on the lot line between Lots 110 and 111 in anticipation of construction of houses on Lots 109 and 111. At no time were copies of the Building Permits posted publicly at Lot 109 or Lot 111.
14. On December 22, 2011, the Land Court (Grossman, J.) issued a decisionand judgment in a case entitled Mauri v. Zoning Bd. of App. of Newton, 19 LCR 626 (2011) (Mauri I); affd, 83 Mass. App. Ct. 336 (Mauri II); rev. denied, 465 Mass. 1104 (2013) (Mauri III). In Mauri I and Mauri II, the Land Court and the Appeals Court ruled, inter alia, that the grandfathering protection provided by Section 30-15(c)(3)(b) of the Ordinance with respect to minimum lot size and frontage requirements in single familyresidence zoning districts under the Ordinance protected lots developed with a single-family or two-family dwelling, not vacant lots. [Note 6]
15. Construction on Lot 109 commenced on or about January 10, 2012, and construction on Lot 111 commenced on or about January 18, 2012. Both construction projects ceased in or around February of 2012 after completion of house foundation work. Additional work on Lot 109 was done in June of 2012 (bringing the house on that lot nearly to completion), and subsequently by stipulation of the parties, in order to alleviate safety concerns relating to the fact that the house was uncompleted and unoccupied. Plaintiff describes the structure on Lot 109 as ninety-five per cent complete.
16. On January 24, 2012, the Abutters contacted Lojek (Commissioner of the Newton ISD) byletter (defined above as the Enforcement Letter), in which the Abutters demanded that Lojek enforce the Ordinance and revoke the Building Permits. The Abutters subsequently sent Lojek additional requests for enforcement of the Ordinance. The Commissioner did not, at the time, respond to any of these requests.
17. By deed dated January 30, 2012 and recorded in the Registry at Book 58409, Page 70 (the Pitsick 2012 Deed), Pitrowski and Cusick conveyed Lots 109 and 111 (which do not abut) to Plaintiff. That same day, by deed dated January 30, 2012 and recorded in the Registry at Book 58409, Page 132 (the Goddard 2012 Deed), Pitrowski and Cusick conveyed Lot 110 to 22 Goddard, LLC (Goddard).
18. By deed dated May 18, 2012 and recorded in the Registry at Book 59123, Page 126 (the May 2012 Deed), Goddard sold Lot 110 to Joshua E. Shriber (Shriber) and Patience Orobello (Orobello), who are third-parties unrelated to any party to this litigation.
19. By letter dated June 20, 2012, Lojek notified Pitrowski of the uncertain validity of the Building Permits based upon the holding in Mauri I. Lojek advised Pitrowski that he thought Mauri I was erroneous, and that the case was on appeal.
20. On June 25, 2012, the Abutters commenced the Prior Action, in which they sought a preliminary injunction halting construction on Lots 109 and 111, which was denied. On November 29, 2012, this court issued Land Court Decision 1, which, inter alia, directed Lojek to respond to the Abutters requests for enforcement of the Ordinance within fourteen days.
21. Byletter dated December 13, 2012 (the Lojek Decision), Lojek complied with Land Court Decision 1 by advising the Abutters that the Newton ISD would take no further action at that time with respect to the Building Permits, based upon the then-pending appeal of Mauri I.
22. On January 11, 2013, the Abutters timely appealed the Lojek Decision to the ZBA. Plaintiff objected to this appeal on the bases of untimeliness and lack of jurisdiction.
23. On February 22, 2013, the Appeals Court issued a decision (Mauri II) affirming the Land Courts holding in Mauri I. See Mauri II, 83 Mass. App. Ct. 336 .
24. The ZBA held a public hearing on the Abutters appeal on February 26, 2013. On March 11, 2013, the ZBA voted to grant the Abutters appeal, determined that the Goddard Street Lots had merged for zoning purposes, and revoked the Building Permits (the ZBA Decision). The reasoning of the ZBA Decision was based primarily upon the holding in Mauri II.
25. On May 6, 2013, the Supreme Judicial Court summarily denied review of Mauri II.
See Mauri III.
26. Filzer lives at 27 Goddard Street, Newton, which is across Goddard Street from Lot 109, approximately 120 feet to the south of the partially-constructed house on Lot 109. Filzer testified at his deposition as to general concerns with respect to building density, traffic, privacy, noise, shadowing, and light. He further testified that four lots on his side of Goddard Street are grandfathered lots that do not meet the Ordinances current frontage requirements, of which lots three also do not meet the Ordinances current lot area requirements.
27. The Crowleys live at 423 Winchester Street, Newton, which abuts Lot 111 to the west. The rear of the Crowleys house faces the western side of Lot 111, contains 13 facing windows, and is located at least 30 feet from the proposed house on Lot 111. Aside from privacy concerns due to said windows, the Crowleys testified as to their general concerns with respect to building density, traffic, noise, shadowing, and light.
28. Berg lives at 429 Winchester Street, Newton, which abuts the Crowleys lot to the north, and is kitty-corner to Lot 111 to the northwest. There is no evidence in the record as to any specific impact that development on the Goddard Street Lots would have upon Berg.
29. Mannix and Koot live at 430 Winchester Street, Newton, which does not abut any of the Goddard Street Lots (or any lot that does), and is located across Winchester Street from Berg. The Abutters did not submit any specific evidence in their motion papers pertaining to anyimpact that development on the Goddard Street Lots would have upon Mannix and/or Koot. [Note 7]
30. The Dions live at 409 Winchester Street, Newton, which does not abut any of the Goddard Street Lots (or any lot that does), and is located across Goddard Street at the intersection of Goddard Street and Winchester Street. There is no evidence in the record as to any specific impact that development on the Goddard Street Lots would have upon the Dions.
31. Annexed to Stefanovs affidavit is a shadow study dated June 24, 2014, performed by Stefanov Architects (the Shadow Study), which assessed the prospective deprivation of light and creation of shadowing that Plaintiffs proposed development of Lots 109 and 111 would be expected to cause upon three properties: the Filzers property, the Crowleys property, and Bergs property. The Shadow Studys findings were, in relevant part, as follows:
(a) Plaintiffs development of Lots 109 and 111 would [cause] no increased shadowing on Filzers property.
(b) Plaintiffs development of Lot 109 would cause no shadowing to the Crowleys property, and any shadowing caused to the Crowleys property by Plaintiffs development of Lot 111 would be no different than the rest of the community that is located in the same zoning district; further, such shadowing would not come close to a claim of deprivation of light, and would create no unique situation relative to shadowing in this neighborhood.
(c) Plaintiffs development of Lot 109 would cause no shadowing to Bergs property, and its development of Lot 111 would cause Bergs property virtually no increased shadowing, excepting limited shadows during summer solstice.
32. Neither party submitted expert evidence as to the expected traffic impact that development of Lots 109 and/or 111 would cause.
33. There is no record that the residents of Lot 110 (whose residence would be located between the proposed structures on Lots 109 and 111, with just over twenty feet of open space on each side between the Lot 110 House and the structures to be built on Lots 109 and 111) object to the development of Lots 109 and/or 111. Likewise, there is no record that the residents of Lot 108 (which abuts Lot 109 to the east, and which contains a residence just over twenty feet away from the structure to be built on Lot 109) or any abutter thereto object to the development of Lots 109 and/or 111. There is also no record of any such objection by any rear abutters of any of the Goddard Street Lots (to the north) or abutters thereto, nor from the property owners located across Goddard Street from Lots 110 or 111 or their abutters.
34. According to the Abutters deposition testimony, the members ofthe Arsenault family who owned and occupied the Goddard Street lots From 1931 until 2011 historically used Lots 110 and 111 as a common property, with the Garage located across the boundary between these two lots servicing the Lot 110 House, and Lot 111 serving the purpose of a side lawn. Nothing in the record indicates whether fencing was ever installed at the perimeter of Lots 110 and Lot 111 to fence in these two lots as a single parcel.
35. Until Plaintiff purchased Lot 109, it was a thickly wooded lot that was not improved in any way by its owners.
36. Lots 110 and 111 were, until 2011, taxed jointly by the Town of Newton Assessors Office (the Assessor). In 2012 and 2013, Lot 111 was taxed separately for the first time as an unimproved but buildable lot. Since 2014, Lot 111 has been taxed as undevelopable land.
37. Lot 109 has traditionally been taxed by the Assessor separately from Lots 110 and 111. Through 2011, Lot 109 was taxed as undevelopable land. In 2012 and 2013, Lot 109 was taxed as an unimproved but buildable lot. Since 2014, Lot 109 has been taxed as undevelopable land.
The Parties Procedural Motions
Before proceeding to the merits of the parties dispositive motions, I must dispose of the Abutters motion to file a late sur-reply brief and Plaintiffs motion to strike said sur-reply brief.
Setting aside the procedural irregularities with the Abutters sur-reply brief (i.e., the facts that the Abutters were cross-movants in the parties briefing of dispositive motions, and thus are not automatically entitled to a reply, and that the sur-reply brief was filed past the deadline for filing a reply brief), it is clear that the Abutters sur-reply brief was responding to new issues raised by Plaintiff for the first time in their own reply brief, namely, inter alia, the argument from equity that the construction projects on Lots 109 and 111 should be permitted to proceed based upon Plaintiffs reliance upon the building permits issued with respect thereto.
Since this issue was first raised by Plaintiff on reply, the court would be within its discretion to simply disregard it. However, the court finds this issue to be particularly relevant, as discussed more fully, infra. The court will therefore allow discussion of this issue. Having done so, Plaintiff cannot now complain that the Abutters should have no opportunity to address it themselves.
What is improper in the Abutters sur-reply, however, is their attempt to submit (for the first time) an affidavit of Koot addressing his claims of harm. As discussed, infra, Koot lacks presumptive standing to challenge activity on any of the Goddard Street Lots, and his failure to submit evidence as to the impact of said activity in the Abutters cross-moving papers is fatal to his claims of harm.
In view of the foregoing discussion, the Abutters motion for leave to late file a sur-reply brief is ALLOWED, except that the affidavit of Koot will not be considered. Plaintiffs motion to strike the Abutters sur-reply is ALLOWED solely to the extent that Koots affidavit is stricken from the summary judgment record, and in all other respects is DENIED.
The Parties Dispositive Motions
Plaintiff argues that Lot 109 and Lot 111 are entitled, under G. L. c. 40A, § 6 and/or Section 30-15(c)(3)(b) ofthe Ordinance, to grandfathering protection from the Ordinances minimumlot area requirements, and, as a result, were entitled to the issuance of the Building Permits. In the alternative, Plaintiff argues that, even if Lot 109 and/or Lot 111 are not grandfathered lots, the court should estop the ZBA from revoking the Building Permits, since Plaintiff was acting in reliance upon the Commissioners interpretation of the Ordinance. Plaintiff further argues that the Abutters do not have standing to be involved in this case, and reiterates its argument (which was decided in Land Court Decision 1) as to the timeliness of the Abutters request for enforcement of the Ordinance. [Note 8] Both the ZBA and the Abutters argue that the ZBA Decision should be upheld.
A. The Abutters Standing
Before proceeding to the merits of this dispute, the issue of standing must be addressed, because if the Abutters lacked standing to appeal the Lojek Decision, that would mean that the ZBA lacked jurisdiction to hear the Abutters appeal of that decision, which, in turn would deprive this court of jurisdiction as well. The issue of standing implicates two similar, but importantly different questions: (a) whether the Abutters are proper parties to this case, and (b) whether the Abutters had standing to raise the grievances that they have raised.
This first question is straightforward: as long as the Abutters had standing to appealthe Lojek Decision to the ZBA, they clearly would be proper parties in this case pursuant to G.L c 40A, § 17, which provides that [i]f the complaint [for judicial review] is filed by someone other than the original applicant, appellant or petitioner [before the local permit-granting authority], such original applicant, appellant, or petitioner and all members of the board of appeals or special permit granting authority shall be named as parties defendant with their addresses. G.L c 40A, § 17; see also Butts v. Zoning Bd. of App. of Falmouth, 18 Mass. App. Ct. 249 , 253 (1984) ([O]riginal appellant in G.L. c. 40A, 17, refer[s] to the person who appeals from a decision of a local administrative official to the zoning board of appeals [ ] pursuant to G.L. c. 40A, § 8 . . . .).
We thus turn to the more complicated questionofwhether the Abutters had standing. Because they lacked notice of the issuance of the Building Permits (see Land Court Decision 1), the Abutters sought enforcement of the Ordinance pursuant to G.L. c. 40A, §7. [Note 9] When their request was denied pursuant to the Lojek Decision, the Abutters appealed to the ZBA under G.L. c. 40A, § 8. [Note 10] The ZBA reversed the Lojek Decision, precipitating Plaintiffs instant appeal of the ZBA Decision.
It is well-settled that different standing requirements apply to a partys request for enforcement under G.L. c. 40A, § 7, on the one hand, and that partys appeal of a denial of that request under G.L. c. 40A, § 8. To wit:
G.L. c. 40A appears to recognize the distinction between a right of a nonaggrieved person to seek enforcement (see § 7) and the greater right of an aggrieved person to start an administrative proceeding seeking to compel enforcement (see § 8). Under § 7, a person in writing may request a building inspector to enforce the zoning by-law and is entitled to a written response. The person need not be aggrieved. To go beyond that stage, if the request for enforcement is rejected, a party must be aggrieved.
Green v. Bd. of Appeals of Provincetown, 404 Mass. 571 , 573 (1989); see also Jaffe v. Zoning Bd. of App. of Newton, 34 Mass. App. Ct. 929 (1993) (rescript); Chongris v. Bd. of App. of Andover, 17 Mass. App. Ct. 999 , 1000 (1984) (rescript).
Whether or not a party is aggrieved determines whether that party has standing, which determines whether a local zoning authority and later the courts have jurisdiction to entertain an appeal of a denial of enforcement. E.g., Marashlian v. Zoning Bd. of App. of Newburyport, 421 Mass. 719 , 721 (1996); see also G. L. c. 40A, § 17. The same is true here: [a]ggrieved person status is no less a jurisdictional condition to maintaining an appeal to a board of appeal under G.L. c. 40A, § 8, than it is to maintaining judicial review under [G.L. c. 40A,] § 17. Chongris, 17 Mass. App. Ct. at 1000 (citing Turner v. Bd. of App. of Milton, 305 Mass. 189 , 192-193 (1940); see also Warrington v. Zoning Bd. of App. of Rutland, 78 Mass. App. Ct. 903 , 904 (2010); Turner, 305 Mass. at 193, (where abutter was not aggrieved, he had no right to file it and the board had no authority to hear it). Moreover, the standard for determining whether a party is aggrieved is the same whether the appeal is brought under G.L. c. 40A §8 or G.L. c. 40A, § 17. See id. at 195 (Person aggrieved means the same thing in G.L. c. 40A, § 8, as it does in [G.L. c. 40A,] § 17.).
A party is presumed to be aggrieved, within the meaning of G.L. c. 40A, § 8, if it is a party in interest -- a term defined as the petitioner, abutters, owners of land directly opposite on any public or private street or way, and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list . . . . G. L. c. 40A, § 11; see also Marotta v. Bd. of App. of Revere, 336 Mass. 199 , 204 (1957); Murray v. Bd. of App. of Barnstable, 22 Mass. App. Ct. 473 , 476 (1986). Conversely, if a party does not fall into this category of presumed parties in interest, he or she has the burden to demonstrate some harm; if the party cannot do so, the developer need only show that the party has no reasonable expectation of proving a legally cognizable injury. E.g., Standerwick v. Zoning Bd. of App. of Andover, 447 Mass. 20 , 35 (2006) (citing Kourouvacilis v. Gen. Mot. Corp., 410 Mass. 706 , 716 (1991).
Even if a party is a party in interest, and is thus presumed to have standing, this presumption is rebuttable. E.g., Standerwick, 447 Mass. at 33. Once a defendant challenges the [abutters] standing and offers evidence to support the challenge . . . the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the [abutter] from the presumption. Id. (quotation omitted); see also Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003) (defendant must proffer evidence warranting a finding contrary to the presumed fact [of standing]).
Once a party has successfully rebutted the presumption of standing, the burden rests with the [abutter] to prove standing, which requires that the [abutter] establish -- by direct facts and not by speculative personal opinion -- that his injury is special and different from the concerns of the rest of the community. Standerwick, 447 Mass. at 33 (quotation omitted); see also id. at 34 ([The] presumption does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by throw[ing] upon his adversary the burden of going forward with evidence. (quoting Epstein v. Boston Hous. Auth., 317 Mass. 297 , 302 (1944))). To assert a plausible claim, a plaintiff must put forth credible evidence to substantiate his allegations. Marashlian, 421 Mass. at 721. Such credible evidence consists of:
both a quantitative and a qualitative component . . . . Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence must be of a type on which a reasonable person could rely to conclude that the claimed injury likely will flow from the boards action. Conjecture, personal opinion, and hypothesis are therefore insufficient.
Butler v. City of Waltham, 63 Mass. App. Ct. 435 , 441 (2005)
In sum, if an abutter does not fall into the category of parties with presumed standing, or if the defendant succeeds in rebutting a presumption of sanding, individual . . . property owners acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest. Harvard Sq. Def. Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491 , 492-93, rev. denied, 405 Mass. 1204 (1989); see also Green, 404 Mass. at 573; Barvenik v. Bd. of Aldermen of Newton, 33 Mass. App. Ct. 129 , 132 (1992) (plaintiff must establish a special and particular injury based upon direct facts), abrogated on other grounds by Marashlian, 421 Mass. at 724; Butler, 63 Mass. App. Ct. at 440 (same).
Local zoning authorities are generally not equipped to conduct the fact-sensitive and legally complicated issues necessarily raised in assessing whether a party has standing. Therefore, it is unsurprising that the ZBA considered the issue of standing only in terms of whether the Abutters had presumed standing, as abutters or abutters to abutters. That limited inquiry is perfectly acceptable, and the ZBA made no error in not considering the Abutters particular concerns in detail. However, jurisdictional objections as to [l]ack of standing [ ] cannot be waived and may be raised at any stage of the proceedings. Warrington, 78 Mass. App. Ct. at 905; see also Chongris, 17 Mass. App. Ct. at 1000. It is therefore necessary for this court to consider the issue of the Abutters standing (irrespective of whether it was raised before the ZBA or decided thereby), because a finding of no standing would mean that the ZBA lacked jurisdiction to hear the Abutters appeal despite their presumed standing.
In this case, the Abutters all own property in the general vicinity of the Goddard Street Lots -- some closer thereto than others. Filzer owns property across Goddard Street from Lot 109, and therefore has presumptive standing under G.L. c. 40A, § 11 to challenge the development of Lot 109; however, he does not have presumptive standing to challenge the development of Lot 111. The Crowleys property abuts Lot 111, so they have presumptive standing to challenge the development of Lot 111; however, they do not have presumptive standing to challenge the development of Lot 109. Berg is an abutter to an abutter (i.e., the Crowleys) of Lot 111, and therefore also has presumptive standing to challenge the development of Lot 111; however, he does not have presumptive standing to challenge the development of Lot 109. The Dions, Mannix, and Koot do not have presumptive standing to challenge the development of either Lot 109 or Lot 111.
Notwithstanding the presumption of standing that applies to Filzer, Crowley, and Berg, Stefanovs expert affidavit and the Shadow Study plausibly raise a dispute as to whether any of the Abutters would be adversely impacted by the development of Lots 109 and 111, particularly where the planned homes would satisfy the Ordinances requirements with respect to setbacks and open space requirements. [Note 11] As such, Plaintiff has rebutted the presumption of standing enjoyed by Filzer, the Crowleys, and Berg. See Standerwick, 447 Mass. at 33. The burden thus falls upon all of the Abutters to establish that they would suffer individual, particularized harms to their private rights as neighboring landowners (and not mere concerns that would be applicable to any member of the public) if Plaintiff were to be permitted to construct homes on Lots 109 and 111. See Harvard Sq. Def. Fund, Inc., 27 Mass. App. Ct. at 492-93 (1989); Green, 404 Mass. at 573; Barvenik, 33 Mass. App. Ct. at 132; Butler, 63 Mass. App. Ct. at 440.
To substantiate their allegations of prospective harm that they might suffer if Plaintiff were to be permitted to construct homes on Lots 109 and 111, the Abutters have submitted excerpts of the deposition testimony of Filzer and Paul Crowley relative to this issue; no deposition testimony of Berg, the Dions, Mannix, or Koot is in the record. [Note 12] The Abutters have also submitted the affidavit of Rieske (a licensed architect), in which Rieske summarizes the Abutters statements of their concerns in their depositions and states that, in his professional opinion, such concerns are warranted. [Note 13] However, there is no indication that Rieske actually performed any survey or study (other than viewing the neighborhood and taking pictures) that would tend to support the validity of the Abutters concerns, or to suggest that said concerns rise above the level of speculation.
In the first place, Berg, the Dions, Mannix, and Koot all failed to proffer any evidence that would indicate a particularized injury to their specific private rights, despite Plaintiffs successful rebuttal of the presumption of standing as to all of the Abutters. Therefore, I find that Berg, the Dions, Mannix, and Koot have not demonstrated that the development of Lot 109 and/or Lot 111 would affect them, and thus that they lack standing to raise grievances with respect thereto.
This leaves only Filzer and the Crowleys [Note 14], whose concerns are based upon prospective overcrowding in the neighborhood. Specifically, Filzer and Paul Crowley testified that they feared that developing Lots 109 and 111 would have an adverse effect on their properties and the neighborhood generally -- which, they testified, is already densely developed and already contains several grandfathered nonconforming lots. Rieske corroborated this concern in his affidavit, stating, specifically, that [w]ithin 100 feet on either side of the Filzer residence . . . are four houses sitting on nonconforming lots and that within 200 feet to the west of Lot 109 are . . . [two lots that] do not conform to [current zoning] requirements. In sum, [c]onstruction of two additional houses . . . would mean that . . . there would be 5 houses on minimally-sized, nonconforming lots . . . and one conforming lot on the side of Goddard Street where Lots 109 and 111 are situated. Further, [t]hat increased density and overcrowding would have a significant negative impact on abutters to Lots 109 and 111 . . . .
In addition to these concerns, Filzer and Paul Crowley testified as to other ancillary concerns that could result from overcrowding -- including noise, creation of shadowing and artificial light, blocking of light and air, traffic and parking congestion, and privacy. [Note 15] Filzer and Paul Crowleys testimony is supported by the expert testimony of Rieske, who states that, in his professional opinion, these concerns are legitimate.
Filzer and the Crowleys concerns as to overcrowding and density represent a legitimate, protected concern, which is specifically noted in Section 30-2(b) of the Ordinance. E.g., Sheppard v. Zoning Bd. of App. of Boston, 74 Mass. App. Ct. 8 , 12 (An abutter has a well-recognized legal interest in preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow. (quotation omitted)), rev. denied, 454 Mass. 1103 (2009); Ordinance § 30-2(b); c.f., Kasparian v. Horning, 17 LCR at 387, 393 (Mass. Land Ct. Jun. 10, 2009) ([A]butter/plaintiff cannot merely invoke the word[ ], density, and so conjure up the requisite standing.). Density is a particular concern where density and overcrowding in a neighborhood is already something of a problem. E.g., McGrath v. Chatham Zoning Bd. of App., 17 LCR 101 , 103 (2009); Sheppard, 74 Mass. App. Ct. at 12. To properly raise this concern, the Abutters must demonstrate that they have a particularized interest in preventing overcrowding on the basis that the effect it would have on their own rights to enjoy their properties. See Pettinella v. Cavallaro, 19 LCR 340 , 344 (Mass. Land Ct. July 18, 2011).
Moreover, courts have found that potential ancillaryharms resulting fromdensityare intended to be promoted by dimensional requirements of lot size, lot width, and side yard . . . . Sheppard, 74 Mass. App. Ct. at 12; c.f., Pettinella, 19 LCR at 344 ([C]laims arising simply from aesthetic concerns, or based on a loss of view or diminution of open space, generally are not, by themselves, considered sufficient to confer standing. (citation omitted)). Notably, Section 30-2 of the Ordinance specifically lists, inter alia, preserving aesthetic qualities and [p]roviding for light and air as protected interests; by contrast, however, parking concerns, shadowing, artificial light, noise, and privacy are not specifically listed.
In order to find that the Filzer and/or the Crowleys have standing, this court need only find a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest. Harvard Sq. Def. Fund, Inc., 27 Mass. App. Ct. at 492-493. Based upon the foregoing discussion, I find that Filzer and Paul Crowleys testimony as to the possible impact upon their respective properties, supplemented by Rieskes affidavit, sufficiently raises legitimate concerns as to density and overcrowding, as well as potential loss of light and air. [Note 16] Therefore, I find that Filzer and the Crowleys have proffered a plausible claim that they would be aggrieved by the development of Lots 109 and/or 111. [Note 17] Contra Marhefka v. Zoning Bd. of App. of Sutton, 21 LCR 1 , 4-5 (Mass. Land Ct. Jan. 9, 2013) (Sands, J.) (finding no legitimate concern of density where no evidence of pre- existing density was produced). I therefore find that Filzer and the Crowleys had standing to appeal the Lojek Decision to the ZBA, that the ZBA had jurisdiction over that appeal and to issue the ZBA Decision, and that this court has jurisdiction over this case.
B. Grandfathering Status and Merger
Having ruled on the question of standing, it is clear that this case is properly before this court. We thus proceed to a consideration of the merits. At heart, once the standing issue is out of the way, it becomes clear that this case really boils down to a simple dispute as to (a) whether the Goddard Street Lots merged, and (b) whether any of the Goddard Street Lots have grandfathering protection from increased lot size and frontage requirements of the Ordinance. The Abutters interests on these points are adequatelyrepresented bythe ZBA, as acknowledged bythe Abutters, who, in their motion papers, note that they join in the position taken by the ZBA on the issues of merger and grandfathering.
1. The Common Law Doctrine of Merger and Exceptions Thereto
A general principle [of zoning law is] that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities with the dimensional requirements of the zoning by-law ordinance. Seltzer v. Bd. of App. of Orleans, 24 Mass. App. Ct. 521 , 522 (citations omitted), rev. denied, 400 Mass. 1107 (1987); see also Asack v. Bd. of App. of Westwood, 47 Mass. App. Ct. 733 , 736 (1999) (A basic purpose of the zoning laws is to foster the creation of conforming lots. (quoting Murphy v. Kotlik, 34 Mass. App. Ct. 410 , 414, n. 7, rev. denied, 415 Mass. 1105 (1993))). This common law doctrine of presumed (but not required) merger of adjacent lots applies even if the lots held under common ownership were acquired at different times. E.g., Vetter v. Zoning Bd. of App. of Attleboro, 330 Mass. 628 , 630-631 (1953). Under this doctrine, a property owner will therefore be barred from availing himself of a nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity . . . . Asack, 47 Mass. App. Ct. at 736. On the other hand, however, courts have also noted 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).
G. L. c. 40A, § 6 provides limited protection to certain residential lots from subsequently- enacted zoning regulations that would otherwise have the effect of rendering what was previously a conforming, buildable lot into a non-conforming, non-buildable lot. To that end, G. L. c. 40A, § 6 specifically provides, 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 . . . . The provisions of this paragraph shall not be construed to prohibit a lot being built upon, if at the time of the building, building upon such lot is not prohibited by the zoning ordinances or by-laws in effect in a city or town.
G. L. c. 40A, § 6.
Massachusetts courts have routinely acknowledged that G. L. c. 40A, § 6 was not intended to replace or abrogate the common law doctrine of merger, but rather only to provide specific, qualified protection to lots, provided the statutory conditions set forth in this section (most notably, lack of common ownership with adjacent lots) are met. E.g., Preston v. Bd. of App. of Hull, 51 Mass. App. Ct. 236 , 243-244 (2001); Kimmett v. Town of Tolland, 79 Mass. App. Ct. 1132 , at *1-2 (2001) (unpublished decision) (2011). Thus, grandfathering exemptions typically do not apply if the lot owner had adjoining land available for use in satisfying the minimum [dimensional] requirement. Sorenti v. Bd. of App. of Wellesley, 345 Mass. 348 , 353 (1963). In Sorenti, the court explained this rule as follows:
[t]he rationale of such a provision is that an owner who has or has had adjacent land has it within his power, by adding such land to the substandard lot, to comply with the frontage requirement, or, at least, to make the frontage less substandard. In other words, the owner cannot avail himself of the nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity. Otherwise, in a situation like the present, an owner who owned adjacent lots . . . would have greater building rights than the owner of a single lot [with the same dimensions].
Id. (citations omitted); see also Asack, 47 Mass. App. Ct. at 736 (A person owning adjoining record lots may not artificially divide them so as to restore old record boundaries to obtain a grandfather nonconforming exemption; to preserve the exemption the lots must retain a separate identity. (quoting Lindsay v. Bd. of App. of Milton, 362 Mass. 126 , 132 (1972))).
Although G. L. c. 40A, § 6 does not abrogate the common law merger rule, local authorities cando so themselves byenacting so-called indulgent bylaws that specifically applyexemptions from zoning requirements to properties irrespective of whether they are held in common ownership with adjacent lots. E.g., Hoffman v. Zoning Bd. of App., 74 Mass. App. Ct. 804 , 811 (it is within the legislative power of the city to override the effects of common-law merger doctrine and allow adjacent nonconforming lots that come into common ownership to be treated as separate lots for zoning purposes), rev. denied, 455 Mass. 1104 (2009); Seltzer, 24 Mass. App. Ct. at 521-522 (exempting properties from minimum space and frontage requirements regardless of a common ownership with . . . adjoining land). Notwithstanding the existence of such a local grandfathering protection, however, a [local] statute should not be interpreted as being at odds with the common law [principle of merger] unless the intent to alter it is clearly expressed. Preston, 51 Mass. App. Ct. at 240 (quotation omitted).
Ordinance Section 30-15(c) states, in relevant part, as follows:
Any increase in area, frontage, or setback requirements prescribed in Table 1 of this section shall apply to any lot in a residential zoning district except to the extent that either the provisions of the Massachusetts General Laws, Chapter 40A, Section 6, as in effect on January 1, 2001, or the following provisions, provide otherwise. Any increase in area, frontage, or setback requirements prescribed in Table 1 of this section shall not apply to any lot in a residential district if . . . (3) Either a) The lot was not held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, or b) If the lot was held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, such lot had on it a single-family or two-family dwelling. [Note 18]
On its face, this section does not abrogate the common law doctrine of merger, but rather extends certain protections to lots held under commonownership when specific conditions are satisfied. Thus, Ordinance Section 30-15(c) must be analyzed in the context of the merger rule, and not as an exception thereto. See Preston, 51 Mass. App. Ct. at 240.
In sum, therefore, while both the state and the local statutes provide certain protection to undersized lots, neither entirely overrides the doctrine of merger. We must therefore consider whether, under the common law doctrine of merger, any/all of the Goddard Street Lots have merged for zoning purposes. This case presents a unique set of facts that contrast slightly (but meaningfully) with previous cases that are discussed by the parties in their summary judgment briefs -- in particular, Mauri I and Timperio v. Zoning Bd. of App. of Weston, 84 Mass. App. Ct. 151 , 156 (2013). In Mauri I, there were two lots at issue, and the court found that a mostly undeveloped lot (containing only a freestanding garage) had merged with an adjacent lot improved with a residence. See Mauri I. If Plaintiff had owned only Lots 110 (which contains the Lot 110 House) and 111 (which contained a side yard and the Garage), the facts in Mauri I would be directly on point here. However, since Plaintiff also owns a third consecutive lot (Lot 109), Mauri I is unhelpful in determining how that lot should be treated. Timperio (in which case there were, as here, three consecutive jointly-owned lots) would thus seem to be more relevant. See Timperio, 84 Mass. App. Ct. at 156. Yet, in Timperio, unlike here, joinder of two of the three adjacent lots would still have left the developed lot as non- compliant with zoning requirements. [Note 19] See id.
In the case at bar, when the 1940 Amendment was enacted, Lots 110 and 111 were held in common ownership. The 1940 Amendment imposed a minimum lot area of 7,000 square feet and seventy feet of frontage, which thus rendered Lots 110 and 111 adjacent, non-conforming, commonly-held lots. And, because neither the state nor the local statute abrogates the merger doctrine, the above-discussed case law entails that Lots 110 and 111 necessarily merged for zoning purposes, thus creating a conforming lot with 10,000 square feet of total area and 100 feet of frontage (the Merged Lot).
By contrast, Lot 109 was held under separate ownership in 1940, and thus, at that time, became a non-conforming (buildable) lot. Three years later, pursuant to the 1943 Deed, Lot 109 also came to be held jointly with the Merged Lot. At that time, as noted above, Lots 110 and 111 had already merged to form the Merged Lot -- a conforming lot that needed no addition of land area or frontage. Thus, it was not necessary for Lot 109 to merge with the Merged Lot to render the latter a conforming lot. See id. at 158 (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. (quotation omitted)); Sorenti, 345 Mass. at 353 (owner cannot avail himself of the nonconforming exemption unless he includes his adjacent land in order to minimize the nonconformity).
On the other hand, because the Merged Lot already contained a residence on it (the location of which would have made it impossible for any portion of the Merged Lot to be subdivided, deeded out, and combined with Lot 109 so as to render Lot 109 a conforming lot), the Merged Lot was not capable of being combined with Lot 109 to render Lot 109 a conforming lot. Thus, despite the common ownership of the Goddard Street Lots, because Lot 109 was not held in common ownership with adjoining land that could have brought Lot 109 into conformity, Lot 109 did not merge with the Merged Lot, and is eligible for grandfathering protection under G. L. c. 40A, § 6. The same is true, for the same reasons, when the Ordinance was later amended in 1953 to increase the minimum lot size requirement to 10,000 square feet and eighty feet of frontage.
The purpose of the doctrine of merger is to enable nonconforming lots to become conforming by combining the nonconforming lot with adjacent land, thus bringing the nonconforming lot into conformity. See Timperio, 84 Mass. App. Ct. at 158; Sorenti, 345 Mass. at 353. Here, if Lot 109 were to have merged with the Merged Lot, that could not have made the Merged Lot (a conforming lot) any more conforming than it already was, nor could it have alleviated Lot 109's nonconformity. Thus, under the common law doctrine of merger, it was not necessary for Lot 109 to have merged with the Merged Lot.
In addition to the foregoing considerations, principles of equitystronglysuggest a finding that Lot 111 (as opposed to Lot 109) merged with Lot 110. Most notably, Plaintiff was issued the Building Permits by the Commissioner, and it appears that the Citys practice (until Mauri I and Mauri II) was to interpret Section 30-15(c)(3)(b) of the Ordinance in the manner suggested by Plaintiff, but rejected in Mauri I and Mauri II -- as demonstrated through, among other things, the Abutters correspondence with their local aldermen and the ZBAs discussion of the effect that Mauri II would have on previously-approved building projects. In reliance of such interpretation, Plaintiff expended significant funds in excavating and developing Lot 109 (on which a nearly-completed residence has existed now for nearly three years) and Lot 111 (on which only a foundation has been built); to force the structure on Lot 109 to be razed now (and the lot returned to its former wooded state, as the Abutters seek) would be an extreme, unnecessary waste of resources, and would render this valuable property virtually useless and valueless, resulting in a needlessly inefficient use of valuable suburban property. [Note 20] Further, after renovating the Lot 110 House, Plaintiff conveyed Lot 110 alone to private owners as a smaller lot, rather than together with Lot 111, which likely would have resulted in a higher sale price.
Additionally, the historical use of the Goddard Street Lots indicates that Lots 110 and 111 were used jointly as a single lot, with Lot 109 serving a markedly distinct purpose. As noted above, evidence in the record indicates that the Lot 110 House was serviced by the Garage, located on the boundary between Lots 110 and 111, and that Lot 111 was used as an open side lawn for the Lot 110 House. These lots were also taxed jointly until Plaintiff conveyed Lot 110 to a third party.
Lot 109, by contrast, could easily be differentiated from the Lots 110-111 joint lot by the fact that it was kept undeveloped and completely covered by dense vegetation -- marked by nothing that might lead one to conclude that it was owned by the same owners of Lots 110 and 111. Filzer acknowledged this unique state of Lot 109 (by comparison with the surrounding properties, all of which were improved), noting that the dense wood on Lot 109 gave a rural cache [sic] to the area. Moreover, until Plaintiff purchased Lot 109 and obtained the Building Permits in 2011, Lot 109 was always taxed separately from Lots 110 and 111 as an undevelopable property. Additionally, the conveyancing history of Lot 109 shows that, since the Lot 110 House was constructed in the early 1920s, Lot 109 was held under separate ownership for approximately twice the amount of time (i.e., from around 1923 to 1943, from 1955 to 1991, and since 2012) it was held jointly with Lots 110 and 111 (which was from 1943 to 1954, and again from 1991 to 2012), thus suggesting an intent even on the part of the Arsenault family members to consider Lot 109 as separate and distinct.
In view of the foregoing facts, I find that Lots 110 and 111 merged in 1940 when the 1940 Amendment was enacted. I find that Lot 109 did not merge with the Merged Lot. This result is supported by consideration of the conveyancing history of the Goddard Street Lots, as well as by principles of equity and the historical usage of these lots. We thus turn to a consideration of whether Lots 109 and/or 111 are eligible for the protections offered by the state and local statutes.
2. Statewide Grandfathering Protection under G. L. c. 40A, § 6
In order to determine if Lots 109 and/or 111 are protected by G. L. c. 40A, § 6, we must parse several phrases contained in this section. First, the phrase the time of recording or endorsement in G. L. c. 40A, § 6 has been interpreted as meaning that, for purposes of considering whether a lot in question is held in common with adjacent properties, the relevant deed is the one in effect immediately prior to the enactment of the zoning regulation creating a non-conformity. See Adamowicz v. Town of Ipswich, 395 Mass. 757 , 762 (1985). This might be seen as granting perpetual protection to a lot if not owned in common at the time of recording or endorsement -- a position argued by Plaintiff. However, courts have held that, because G. L. c. 40A, § 6 does not abrogate the common law doctrine of merger, a lot that was separately owned when it became nonconforming, but which subsequently comes into common ownership with adjacent land, merges with the subsequently acquired land at least to the extent necessary to conform to the zoning requirements. Timperio, 84 Mass. App. Ct. at 156, n. 6; see also Mauri II, 83 Mass. App. Ct. at 341 (citing Carabetta v. Bd. of App. of Truro, 73 Mass. App. Ct. 266 , 268 (2008)); Timperio, 84 Mass. App. Ct. at 157-158 (G. L. c. 40A, § 6's perpetual protection applies [ ] only if the statutory criteria are met. (quotation omitted)).
Next, the reference in G. L. c. 40A, § 6 to lots held in common ownership with any adjoining land must be read in the context of the doctrine of merger, to which this section was intended to form an exception. As noted above, grandfathering exemptions typically do not apply if the lot owner had adjoining land available for use in satisfying the minimum [dimensional] requirement. Sorenti, 345 Mass. at 353. Thus, a non-conforming lot, in order to be grandfathered under G. L. c. 40A, § 6, may not be held in common ownership with an adjacent lot or lots that would avoid or diminish the nonconformity. Burke v. Zoning Bd. of App. of Harwich, 38 Mass. App. Ct. 957 , 958 (1995). In sum, the requirement in G. L. c. 40A, § 6 that a lot, to be eligible for grandfathering, may not be held in common ownership with any adjoining land does not rule out a lot for grandfathering protection merely because it is held in common ownership with another adjacent lot (which may or may not bring the lots, considered together, into conformity); rather, it rules out non-conforming lots that are (a) held in common ownership (b) with adjoining land such that (c) the adjoining land would bring the non-conforming lot into conformity.
As discussed above, Lot 111 merged with Lot 110 in 1940 to form (for zoning purposes) the Merged Lot. The Merged Lot, as developed with only the residence on Lot 110, is a fully-conforming lot subject to the lot size and frontage requirements of the 1953 Amendment. This entails that Lot 111 cannot be considered in isolation. Rather, the lot to be considered, for zoning purposes, is the Merged Lot, not either of the parcels that it contains. See Asack, 47 Mass. App. Ct. at 736 (owner maynot restore old record boundaries to restore grandfathering protection). Because the Merged Lot is a conforming lot, there would be no reason upon which to exempt it from zoning regulations. Thus, Lot 111 cannot claim grandfathering protection under G. L. c. 40A, § 6. Unless protected by the Ordinance, therefore, the issuance of a building permit to develop Lot 111 was improper.
With respect to Lot 109, it appears that this lot satisfies the requirements of G. L. c. 40A, § 6, as interpreted above, for grandfathering protection. That is, because (as discussed, supra) the Merged Lot is not capable of alleviating or eliminating Lot 109's non-conformity, for purposes of G. L. c. 40A, § 6, the Merged Lot does not qualify as adjoining land held in common ownership with Lot 109. Moreover, Lot 109 meets the minimum dimensional requirements of G. L. c. 40A, § 6. I therefore find that Lot 109 is eligible for grandfathering protection under G. L. c. 40A, § 6, and that Lot 109 is a non-conforming, buildable lot subject to the pre-1940 lot size and frontage requirements under the Ordinance. As a result, I find that the ZBAs revocation of Plaintiffs building permit for Lot 109 was therefore improper. The Newton ISD is therefore hereby directed to reinstate building permit (No. 11100408) for the construction of a 2.5 story single family house on Lot 109.
3. Local Grandfathering Protection under Ordinance Section 30-15(c)(3)
Turning first to Lot 111, it is immediately apparent that, for the same reasons as discussed, supra, it would be no more proper to consider Lot 111 in isolation for purposes of assessing whether it is protected by the Ordinance than it was in the context of G. L. c. 40A, § 6. Here, as there, the relevant lot to be considered is not Lot 111, but rather the Merged Lot. See Asack, 47 Mass. App. Ct. at 736 (owner may not restore old record boundaries to restore grandfathering protection). And, because the Merged Lot is a conforming lot, there would be no reason upon which to exempt it from zoning regulations. Thus, I find that Ordinance Section 30-15(c)(3) does not exempt Lot 111 from the minimumlot size and frontage requirements imposed bythe 1940 and 1953 Amendments. Plaintiff may therefore proceed with construction on Lot 111 only if granted a variance to do so. [Note 21] Since no such variance has issued, I find that the ZBA did not act improperly to revoke Plaintiffs building permit with respect to Lot 111.
Having already found that Lot 109 (a) did not merge with Lots 110 or 111, and (b) is protected by G. L. c. 40A, § 6, the court will discuss only briefly whether Lot 109 would also have been protected by Section 30-15(c)(3) of the Ordinance. Section 30-15(c)(3)(a) provides that a lot, in order to be eligible for grandfathering protection, may not be held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question. Here, Lot 109 would initially appear not to satisfy this requirement, having quite obviously been held in common ownership continuously from 1995 to 2012 with Lots 110 and 111. However, as was the case with the common ownership exclusion in G. L. c. 40A, § 6 (discussed, supra), the analogous exclusionin Ordinance Section 30-15(c)(3)(a) (which differs from the state statute only in that it refers to a specific period of time) must also be analyzed within the context of the common law of merger. To that end, since merger serves the purpose of eliminating or minimizing zoning nonconformities, the phrase held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question implies that the adjoining lot or lots, if merged with the non-conforming, adjacent lot, would eliminate or reduce the nonconforming lots nonconformity.
As discussed, supra, the Merged Lot is not capable of alleviating or eliminating Lot 109's non- conformity. Thus, for the same reason that Lot 109 qualified for grandfathering under G. L. c. 40A, § 6 for purposes of Section 30-15(c)(3)(a), the Merged Lot does not qualify as an adjoining lot or lots that was held in common ownership at any time after January 1, 1995" with Lot 109. As such, Lot 109 would qualify for grandfathering protection under Section 30-15(c)(3)(a).
We turn next to Ordinance Section 30-15(c)(3)(b), which provides limited protection for lots held in common ownership with adjacent lots. [Note 22] The Abutters and the ZBA argue that the phrase such lot in Section 30-15(c)(3)(b) of the Ordinance refers to its immediate antecedent: the lot in question. Under this interpretation, the only lot that could claim protection under this provision would be Lot 110 -- the lot with the single-family house. Plaintiff argues that the phrase such lot refers to the phrase adjoining lot or lots, and that, as a result, neither Lot 109 nor Lot 111 should merge, because Lot 110 contains a single-family house. Plaintiff cites the long-standing practice of City officials and the legislative history of Section 30-15(c)(3)(b) of the Ordinance in support of the claim that the intention of the drafters of this provision was to protect all adjoining lots held in common ownership that qualify for this exception.
The Land Court in Mauri I and the Appeals Court in Mauri II already explicitly rejected Plaintiffs interpretation of the Ordinance, finding that Section 30-15(c)(3)(b) of the Ordinance was intended to protect lots with existing structures from being classified as uninhabitable due to zoning amendments -- not to protect vacant lots that are adjacent to commonly-held, developed lots. See Mauri I, 19 LCR at 634 (The rule of last antecedent holds that the qualifying phrases are to be applied to the words or phrases immediately preceding and are not to be construed as extending to others more remote. (quoting Cottone v. Cedar Lake LLC, 67 Mass. App. Ct. 464 , 469, n.7, rev. denied, 447 Mass. 1114 (2006)); Mauri II, 83 Mass. App. Ct. 336 (The result is that when two adjacent undersized lots are held in common ownership, the lot improved with a dwelling is protected from increases in the area, frontage, or setback requirements.). [Note 23] The Mauri II rule equally applies here, and it entails that the lot protected by Section 30-15(c)(3)(b) of the Ordinance is, in fact, Lot 110, not Lots 109 or 111. [Note 24]
Because, as found in Mauri I and Mauri II, the purpose of Section 30-15(c)(3)(b) is to protect developed lots from becoming non-conforming, the phrase lot [ ] held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question must be interpreted to imply that the lot containing the single-family or two-family dwelling, when combined with the adjoining lot or lots would still result in a non- conforming lot. To interpret this provision otherwise would be nonsensical, because if the adjoining lot or lots were of a sufficient size as to bring the developed lot into conformity, there would be no reason to exempt the developed lot from the zoning requirements. Rather, the lots would simply merge, forming a conforming lot.
In sum, pursuant to the holding in Mauri II, Ordinance Section 30-15(c)(3)(b) protects only lots that are developed. As such, the only lot at issue here that could possibly qualify for protection would be Lot 110, which represents half of the Merged Lot, which is already a conforming lot that needs no exemption from zoning requirements. Lot 109 did not contain a (completed) single- or two- familydwelling when the Building Permits were issued, and would therefore not qualifyfor protection under Ordinance Section 30-15(c)(3)(b). [Note 25]
Conclusion and Holding
The path forward for the parties is now somewhat uncertain. This court has determined that Lot 109 has not merged with either Lots 110 or 111, and that it is a buildable lot protected both on the state level and locally from increased lot size and frontage requirements. Plaintiff now has a partially-developed structure on Lot 111, in violation of the Ordinance. The Abutters suggest that this court should direct that the structures on both properties be razed, and the properties restored to their former condition. The court declines to do so, as case law recognizes that tear down orders do not necessarily follow every determination of a zoning violation, and that a court may consider equitable factors and the potential availability of money damages as an appropriate alternative remedy. Sheppard v. Zoning Bd. of App. of Boston, 81 Mass. App. Ct. 394 , 405 (2012) (remanding to the local zoning authority for determination of how to address a development found to be unlawful). In Sheppard, 81 Mass. App. Ct. at 405-406, the court considered to be relevant on this question factors such as (a) the request for enforcement was not from a public entity, (b) local authorities supported the project, (c) local zoning laws would allow for enlargement of existing structures, and concerns of equity.
In any event, in view of the foregoing discussion, the parties motions for summary judgment are hereby decided as follows. Plaintiffs Motion for Summary Judgment is ALLOWED solely to the extent that the ZBA Decision is reversed to the extent that it determined that Lot 109 merged with Lots 110 and 111 for zoning purposes and, on that basis, revoked Plaintiffs building permit for Lot 109. Plaintiffs building permit for Lot 109 shall forthwith be reinstated. The Abutters Motion for Summary Judgment is ALLOWED on the issue of the Abutters standing to appeal the Lojek Decision to the ZBA. Further, the ZBAs and the Abutters Motions for Summary Judgment are ALLOWED to the extent that the ZBA Decision is upheld insofar as it determined that Lots 110 and 111 have merged for zoning purposes and that Lot 111 is not presently buildable, and, on that basis, revoked Plaintiffs building permit for Lot 111.
Judgment to enter accordingly.
[Note 1] On June 25, 2012, the Abutters (as well as one additional party, Marlene Kliman) commenced a prior case before the Land Court (Case No. 12 MISC 466672) (the Prior Action), in which they sought, pursuant to G. L. c. 231A, § 1 and G. L. c. 240, § 14A, to enjoin Plaintiff and its principals, Stephen T. Pitrowski (Pitrowski) and Scott Cusick (Cusick) from continuing construction on the properties at issue in this case. On August 9, 2012, the plaintiffs in the Prior Action filed a First Amended Complaint, which sought, pursuant to G. L. c. 249, § 5, an order of mandamus directing the Commissioner of the Newton Inspectional Services Department (Newton ISD) to act relative to two building permits (defined below as the Building Permits) issued with respect to land owned by Plaintiff. The Prior Action was taken under advisement on November 23, 2012, and on November 29, 2012, this court issued a decision (Land Court Decision 1) and judgment, finding, inter alia, as follows: (a) that the plaintiffs in the Prior Action did not have an adequate remedy at law to appeal the issuance of the Building Permits to the ZBA, (b) that the plaintiffs in the Prior Action did not have an adequate remedy at law to appeal Newton ISD Commissioner John D. Lojeks (Lojek or the Commissioner) failure to respond to a letter (the Enforcement Letter) from the Abutters requesting enforcement of the Cityof Newton (the City) Zoning Ordinance (the Ordinance), (c) that the plaintiffs in the Prior Action had not unreasonably delayed bringing a mandamus action, and (d) that the plaintiffs in the Prior Action were entitled to mandamus relief, pursuant to G. L. c. 249, § 5, with respect to the failure by Lojek to provide a response to the Enforcement Letter and subsequent requests for enforcement of the Ordinance with respect to the Building Permits. As a result, Lojek was directed, pursuant to G. L. c. 40A, § 17 to respond to the Enforcement Letter, as well as to the Abutters subsequent requests for enforcement with respect to the Building Permits. On April 29, 2013, the City and Lojek moved to dismiss the remaining issues in the Prior Action that remained unresolved after Land Court Decision 1, which motion was resolved by stipulation of dismissal filed on May 19, 2013.
[Note 2] If the complaint is filed by someone other than the original applicant, appellant or petitioner [before the local permit-granting authority], such original applicant, appellant, or petitioner and all members of the board of appeals or special permit granting authority shall be named as parties defendant with their addresses. G.L c 40A, § 17.
[Note 3] The Lot 110 House has setbacks of 25.4 feet to the front, 10.2 feet and 10.0 feet on either side, and 40.7 feet to the rear. The Lot 110 House is accessed via a driveway connecting to Goddard Street, and is 32 feet tall at its highest point (measured from grade). The Lot 110 house is 17,639 cubic feet in volume, with a lot coverage of 22.4% (floor area ratio of 0.41), leaving 63% of Lot 110 as open space.
[Note 4] The parties did not provide any deeds relative to the conveyancing history of the Goddard Street Lots prior to 1931. However, the 1931 Deed indicates that Lots 110 and Lot 111 were owned by Catherine for some unknown period of time prior to November of 1931, at which time Catherine apparently conveyed said lots to Ryerson. In addition, a 1928 building permit submitted by the ZBA suggests that someone named Joseph B. Arsenault (who is also referenced in the 1931 Deed as a prior owner of Lot 110) may have owned all three Goddard Street Lots in 1928, but no deed has been submitted to substantiate this suggestion.
[Note 5] As proposed, the house on Lot 109 would have setbacks of 25 feet to the front, 11.3 feet on each side, and 42.3 feet to the rear (29.3 feet when measured from a proposed rear deck). The Lot 109 house would have a two-car garage in the basement level (accessed via a driveway connecting to Goddard Street), and would be 34.9 feet tall at its highest point (measured from grade). The Lot 109 house would be 22,163 cubic feet in volume, with a lot coverage of 21.6% (floor area ratio of 0.39), leaving 63% of Lot 109 as open space.
As proposed, the house on Lot 111 would have setbacks of 27 feet to the front, 10.8 feet on each side, and 38.5 feet to the rear (22.5 feet when measured from the proposed rear deck). This house would have a two-car garage in the basement level (accessed via a driveway connecting to Goddard Street), and would be 35.06 feet tall at its highest point (measured from grade). The Lot 111 house would be 22,736 cubic feet in volume, with a lot coverage of 19.3% (floor area ratio of 0.39), leaving 65% of Lot 111 as open space.
[Note 6] At the time of Mauri I, Section 30-15(c) of the Ordinance provided as follows:
Any increase in area, frontage, or setback requirements prescribed in Table 1 of this section shall apply to any lot in a residential zoning district except to the extent that either the provisions of the Massachusetts General Laws, Chapter 40A, Section 6, as in effect on January 1, 2001, or the following provisions, provide otherwise. Any increase in area, frontage, or setback requirements prescribed in Table 1 of this section shall not apply to any lot in a residential district if all of the following requirements are met: (1) At the time of recording or endorsement, whichever occurred sooner, or on October 11, 1940 if the recording or endorsement occurred before October 11, 1940, the lot a) conformed to the requirements in effect at the time of recording or endorsement, whichever occurred sooner, but did not conform to the increased requirements, and b) had at least five thousand (5,000) square feet of area, and c) had at least fifty (50) feet of frontage. (2) The size or shape of the lot has not changed since the lot was created unless such change complied with the provisions of section 30-26. (3) Either a) The lot was not held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, or b) If the lot was held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, such lot had on it a single-family or two-family dwelling.
On February 25, 2015, Section 30-15(c)(3) of the Ordinance was amended, apparently to extend protection to lots developed pursuant to building permits issued by the Commissioner under his pre-Mauri II interpretation of Section 30-15(c)(3)(b) of the Ordinance. The newly-enacted Section 30-15(c)(3)(c) states as follows:
[Increased area, frontage, or setback requirements shall not apply] if the lot I) did not have on it a single-family or two-family dwelling as of July 7, 2001; and ii) was held in common ownership at any time after January 1, 1995 with an adjoining lot that had continuous frontage on the same street and the adjoining lot was the site of a single-family or two-family dwelling; and iii) has on it a single-family or two-family dwelling that was constructed in compliance with a building permit and received a certificate of occupancy on or before December 22, 2011 [i.e., the entry date of Mauri I].
[Note 7] As noted, infra, the court will not accept the late filed affidavit of Koot annexed to the Abutters sur-reply brief.
[Note 8] Plaintiffs jurisdictional arguments relative to the timeliness of the Abutters Enforcement Letter were disposed of in Land Court Decision 1, wherein this court held that the plaintiffs in the Prior Action did not have adequate notice of the issuance of the Building Permits, and thus that their request for enforcement of the Ordinance under G.L. c. 40A § 7 was proper -- not, as Plaintiff claims, an attempt to circumvent the procedure set forth in G.L. c. 40A §§ 8, 15 for appealing the issuance of the Building Permits. Notwithstanding the courts ruling in Land Court Decision 1, Plaintiff nonetheless raises these issues again to reserve its appellate rights on this issue. However, having not challenged the courts findings on appeal in the Prior Action, Plaintiff is precluded from raising them again here. E.g., Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366 , 372 (1985) (When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.). Thus, these issues are res judicata, and will not be rehashed again here.
Suffice it to say, as this court has already determined, an enforcement request under [G.L. c. 40A] §7, and a subsequent appeal from a denial of said request under §§ 8 and 15, remains a valid procedural path for aggrieved parties to follow . . . if the aggrieved party can establish that he or she was without adequate notice of the order or decision being challenged. Connors v. Annino, 460 Mass. 790 , 797 (2011) (incorrectly cited by Plaintiff in support of the mistaken claim that there is no right of appeal from a request for enforcement that is denied). The court has already determined that the Abutters did not have actual notice of the issuance of the Building Permits until after the period to appeal same had run. The Abutters may have had some awareness that a building project was contemplated, but (in no small part due to the fact that Plaintiff did not post copies of the Building Permits at the Goddard Street Lots) they did not know that the Building Permits had actually issued (and thus that their dispute had ripened) until they discovered such issuance through their own independent research in mid-January of 2012. They then immediately approached the Commissioner with their request for enforcement. Under Connors, the Abutters only recourse was to proceed in the way they did. As such, Plaintiffs argument that the ZBA (and this court) somehow lacked jurisdiction to hear the Abutters appeal of the Commissioners denial of their request for enforcement is not only utterly without merit, it is directly contradicted by case law that Plaintiff itself cites.
[Note 9] If the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or refusal to act, and the reasons therefor, within fourteen days of receipt of such request. G.L. c. 40A, § 7.
[Note 10] 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, § 8.
[Note 11] Specifically, Stefanov stated in his affidavit that [z]oning ordinances . . . protect various rights of residents . . . [and] thereby creates a character of a neighborhood. Stefanov also stated that the same standards address concerns of density and overcrowding, as do use restrictions -- here, single familyresidences. Stefanov further stated that zoning building standards set the standard for privacy, light and air in a zoning district, and that [n]one of these rights . . . can be considered infringed upon or out of character in this neighborhood . . . . The Shadow Study found that there would be no increased shadowing on Filzers property, that any shadowing on Crowleys property would not come close to a claim of deprivation of light, and would create no unique situation relative to shadowing in this neighborhood, and that there would be virtually no increased shadowing on Bergs property.
Less convincing is Stefanovs discussion of the fact that Plaintiff could have legally built one large house equal in size to the three proposed houses, which, he opines, would have had a much worse impact than the proposed development, and would be entirely out of place in the neighborhood. While this hypothetical may show that, by comparison, Plaintiffs proposed development would be far more reasonable, it does not address the real issues of harms that could result from the proposed development of Lot 109 and Lot 111.
[Note 12] Likewise, the Abutters submitted no affidavits for Filzer, the Crowleys, Berg, the Dions, or Mannix. The only affidavit of any of the Abutters was Koots affidavit, which, per the courts ruling, supra, has been stricken from the summary judgment record.
It should also be noted that the limited deposition testimony submitted by the Abutters were only partial copies of the transcripts of Paul Crowley and Filzer. It is this courts typical practice to permit parties (barring an objection) to submit sworn deposition testimony, but onlyif full copies of the deposition transcript are filed, since this gives the court the opportunity to assess the full context of the partys testimony, including whether, for example, subsequent contradictions or qualifications to testimony are made. Since Plaintiff did not object to the Abutters filing only partial copies of their deposition transcripts (and, indeed, also filed partial deposition transcripts), the court considers any possible objection to the submission (by either side) of partial deposition transcripts to have been waived.
[Note 13] Rieske specifically states that in my opinion addition of houses on Lots 109 and 111 would greatly add to the density of a neighborhood . . . and would represent overcrowding of the land . . . . Further, the proportions of the houses . . . are too large to be compatible with the scale of the neighborhood. Rieske also discusses lines of sight into several of the Abutters properties, possibly diminished light and air, creation of noise and artificial light, diminished views, diminished open space adjacent to the [Abutters] property, and increased traffic and street parking. However, as to each of these issues, Rieske offers no reason to suggest that his opinions are grounded on any professional expertise or actual survey or test, and not mere speculation based only upon a brief visual inspection of the properties.
[Note 14] Although Monica Crowley did not submit any evidence herself, since Plaintiff did not object, the court will presume that Paul Crowleys concerns would apply to her equally.
[Note 15] The Abutters also suggest that development of Lots 109 and/or 111 could lower properties values. This concern is noted in Section 30-2 of the Ordinance and has, under limited circumstances, been found to be actionable (e.g., Kenner v. Zoning Bd. of App. of Chatham, 459 Mass. 115 , 123 (2011)); however, the Abutters provided no evidence suggesting the possibility of lower property values. Likewise, while they claim possible harms with respect to traffic (which is protected under Section 30-2 of the Ordinance), the Abutters presented no traffic study or expert testimony substantiating what those impacts (if any) would be; thus, these concerns are wholly speculative. E.g., Kenner, 459 Mass. at 123 (speculation as to traffic impacts and safety insufficient to demonstrate harm).
The Abutters also raise several other, more speculative potential concerns as to the style and design of the proposed structures and shadowing; these claims were far too vague and insufficiently supported to survive the evidence submitted by Plaintiff.
[Note 16] By contrast, I find that Filzer and the Crowleys have not raised legitimate concerns as to loss of property values, style and design, noise, creation of shadowing and artificial light, traffic and parking congestion, and privacy. These alleged concerns are insufficiently supported by evidence in the record and/or not protected by the Ordinance.
[Note 17] While there appears to be a plausible claim of harm, opinions may vary as to whether such claim would ultimately be actionable. E.g., Am. Can Co. v. Milk Control Bd., 313 Mass. 156 , 160 (1943) (Doubtless not every person whose interests may be in some remote way injuriously affected . . . is . . . a person aggrieved.). However, at this stage, it is not the role of this court to ultimately find a plaintiffs allegations meritorious. Marotta, 336 Mass. at 204. Based upon the evidence, it does not appear that Filzer and the Crowleys claims are definitely implausible, so a finding of standing is proper.
[Note 18] There is no dispute that all of the Goddard Street Lots satisfy the requirements set forth in Section 30-15(c)(1) and (2). The issue is whether they also satisfy Section 30-15(c)(3).
As noted, supra, in February of this year, while this matter was under advisement, Section 30-15(c)(3) of the Ordinance was amended to add a subsection (c). Since this new provision was enacted after briefing and oral argument, the parties have not been heard on this issue. While the new provision was clearly intended to address the challenges presented by Mauri II, it appears that the Goddard Street Lots do not qualify for the new protection provided by the newly-enacted provision of the Ordinance.
[Note 19] Specifically, in Timperio, the plaintiff owned three consecutive lots, two of which (lots 8" and 9") were acknowledged by the plaintiff to have merged (decades prior to the plaintiffs ownership thereof) into a single lot with an area of 24,877 square feet and 179.6 feet of frontage. Plaintiffs predecessor in title later acquired a third lot (lot 7) with an area of 23,550 square feet and 106 feet of frontage. At that time, the local zoning bylaw required a minimum lot size of 60,000 square feet and 200 feet of frontage, so the lot formed by the merger of lots 8" and 9" was undersized -- and remained so even after lot 7" merged, forming a single lot with an area of 48,427 square feet and 285.6 feet of frontage. See id. at 152.
[Note 20] The record indicates that most construction stopped in June of 2012, apparently in response to the Commissioners June 20, 2012 letter advising Plaintiff of the uncertain status of Mauri I. That letter references prior oral conversations, but nothing in the factual record substantiates such reference. It was not until several months later, in the context of the Prior Action before this court, that the court warned Plaintiff that any further construction would be at risk. Indeed, even after this courts directives to the Commissioner, the Commissioner persisted in his interpretation of Section 30-15(c)(3)(b) of the Ordinance, which was not overturned by the ZBA until several months later after Mauri II had been decided by the Appeals Court.
[Note 21] The court takes no position as to whether any of the Goddard Street Lots meets the statutory conditions for the issuance of a variance. See G.L. c. 40A, § 10; Ordinance § 30-27(b)(2) (Authorizing the ZBA to issue variances where it is determined that owing to circumstances relating to the soil conditions, shape or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of this chapter would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that the desired relief may be granted without substantial detriment or the public good and without nullifying or substantially derogating from the intent or purpose of this chapter . . . .).
[Note 22] To qualify, the lot must meet the following specifications: If the lot was held in common ownership at any time after January 1, 1995 with an adjoining lot or lots that had continuous frontage on the same street with the lot in question, such lot had on it a single-family or two-family dwelling . . . .
[Note 23] On the other hand, it should be noted that Section 30-15(c)(3)(b) of the Ordinance uses the singular term such lot rather than such lot or lots, which suggests the opposite interpretation.
[Note 24] This court is bound to follow the precedent set in Mauri II (and affirmed in Mauri III). Thus, if Plaintiff believes the Land Court and the Appeals Court erred in their interpretation of Section 30-15(c)(3)(b), that is a point that Plaintiff would have to take up with the Supreme Judicial Court, which, it must be noted, has already declined review of this issue pursuant to Mauri III. In any case, even if Plaintiff were correct as to the intent of Section 30-15(c)(3)(b), probably, at best, all that would prove is that the section was poorly drafted -- which is already apparent. If, in fact, local authorities intend Section 30-15(c)(3)(b) to be applied in the way that Plaintiff urges, they would need to amend the Ordinance in order to achieve that end. Notably, local authorities have taken the initiative to amend this Section to extend certain protections to lots developed in reliance of the Commissioners pre-Mauri I interpretation of Section 30-15(c)(3)(b), but have evidently elected not to extend such protections to lots (such as the Goddard Street Lots) that were not completed when Mauri I was issued. As it stands, the court will apply the Ordinance as it is on the books, and as that law has been interpreted by the courts.
[Note 25] The newly-enacted Ordinance Section 30-15(c)(3)(c), although noteworthy, is beyond the scope of this Decision, having been enacted after the parties dispositive motions came under advisement. On its face, this section appears to extend no protection to the Goddard Street Lots, but the court declines to issue a formal finding on that question. The court must therefore also pass on the question of whether the City, in enacting Ordinance Section 30-15(c)(3)(c), went far enough in providing relief to developers for harms caused by the Citys misapplication of its own zoning regulations. As this case demonstrates, property owners whose development projects were not yet completed as of Mauri I (but who may have acted in identical fashion to owners whose developments are now protected) now find themselves unprotected by a law passed by the City, which was clearly aware of the unprotected developers predicament, but chose not to protect them. The equity of such a state of affairs is debatable, but that issue is not presently before this court.