SUSAN C. GALLAGHER vs. FALMOUTH ZONING BOARD OF APPEALS, and MATTHEW J. MCNAMARA, KENNETH FOREMAN, PATRICIA JOHNSON, DAVID HADDAD, SCOTT ZYLINSKI, and MARK COOL, Members of the Town of Falmouth Zoning Board of Appeals.

This action concerns a dispute between Plaintiff Susan C. Gallagher (“Plaintiff”) and Defendants Falmouth Zoning Board of Appeals and its members in their official capacities (together, the “ZBA”) as to the ZBA’s determination that two lots owned by Plaintiff in Falmouth, Massachusetts had merged for zoning purposes, and that Plaintiff was not entitled to approval to construct a new primary structure on one of the two merged lots.

Plaintiff commenced this action by filing an unverified complaint on July 3, 2013, by which she appealed, pursuant to G. L. c. 40A, §17, the ZBA’s decision to uphold a determination of the Town of Falmouth’s (the “Town”) Building Commissioner (the “Commissioner”) that the two lots owned by Plaintiff had merged for zoning purposes. [Note 1]

The ZBA filed its motion for summary judgment on April 15, 2014, together with a supporting memorandum, a statement of material facts, and a record appendix, which contained affidavits (and documents annexed thereto) of Eladio Gore (the Commissioner), Olive Fitzpatrick (Assistant Zoning Enforcement Officer for the Town), Brian A. Currie (Falmouth Town Planner), Peter McConarty (Falmouth Town Engineer), and Patricia A. Harris, Esq. (counsel of record for the ZBA). In response, on April 22, 2014, Plaintiff filed a statement in which she claimed that multiple issues of material fact remained in dispute. Thereafter, the parties appeared for a status conference on May 6, 2014, on which date the court issued an order finding, inter alia, that it appeared that the parties’ dispute was over legal issues and that the parties should proceed with briefing on their dispositive motions.

On June 6, 2014, Plaintiff filed a “conditional” [Note 2] cross-motion for summaryjudgment, together with a memorandum in support of the cross-motion and in opposition to the ZBA’s motion, a statement of material facts and response to the ZBA’s statement of material facts, and a record appendix, which contained affidavits (and documents annexed thereto) of Plaintiff (the “Gallagher Affidavit”), Michael J Markoff, Esq. (Plaintiff’s counsel of record), and Thomas Bunker (a professional land surveyor).

On June 23, 2014, the ZBA filed a motion to strike a portion of the Gallagher Affidavit, together with a reply brief on its motion for summary judgment, a response to Plaintiff’s statement of material facts, and a supplementary record appendix, which contained second affidavits (and documents annexed thereto) of Eladio Gore (the Commissioner) and Patricia A. Harris, Esq. (counsel for the ZBA). On July 3, 2014, Plaintiff filed opposition to the ZBA’s motion to strike, as well as a motion to strike a portion of the ZBA’s reply brief and a motion to strike both affidavits of the Commissioner. On August 4, 2014, the ZBA filed opposition to Plaintiff’s motions to strike. A hearing on all motions was held on August 7, 2014, at which point all motions (including the motions for summary judgment) were taken under advisement.

Based upon the documents and affidavits in the parties’ appendices, I find that the following material facts are not in dispute:

1. On July 1, 1986, the Falmouth Town Planning Board (the “Planning Board”) approved a nine-lot subdivision plan dated April 28, 1986 and entitled “Plan of Land Located in Falmouth - Mass. Being a Subdivision of Lots 407 & 431 as shown on L.C. Plans 314-2 & 314-8" (the “Subdivision Plan”), which was prepared for John L. Druley (“Druley”) [Note 3] by Cape & Island Survey Co., Inc. The lots depicted in the Subdivision Plan cluster around a dead end subdivision road called Green Cove Lane off of Acapesket Road in Falmouth, Massachusetts, and were numbered from 488 (on the north side of Green Cove Lane, abutting Acapesket Road) to 496 (on the south side of Green Cove Lane, abutting Acapesket Road).

2. On October 1, 1986, a plan dated April 28, 1986 and entitled “Subdivision Plan of Land in Falmouth” (the “Land Court Plan”) was filed in connection with Land Court Registration Case 314. The Land Court Plan, like the Subdivision Plan, was prepared by Cape & Islands Survey Co., Inc. The Land Court Plan is numbered as “Plan 314-25"; it states that it pertains to a “Subdivision of lots 407 & 431 shown on Plan 314-2 & 314-8". The Land Court Plan also depicts the same nine lots clustered around Green Cove Lane as are shown on the Subdivision Plan, but it numbered said lots as 492 to 500. [Note 4]

3. Plaintiff’s property (“Locus”) represents two lots, the first of which is defined as Lot 500 on the Land Court Plan and as Lot 496 on the Subdivision Plan (the “House Lot"), and the second of which is defined as Lot 499 on the Land Court Plan and as Lot 495 on the Subdivision Plan (the “Carport Lot"). The Carport Lot abuts the House Lot to the southeast. The street addresses of the House Lot and the Carport Lot are, respectively, 11 Green Cove Lane and 17 Green Cove Lane in East Falmouth, Massachusetts.

4. Several of the lots shown on the Land Court Plan have minor variations in their metes and bounds, as compared to their depictions on the Subdivision Plan. For relevant purposes, these differences are as follows:

(a) on the Land Court Plan, the metes and bounds of the Carport Lot (i.e., Lot 499 on said plan) are as follows: starting at the southeasterly corner of Lot 499 and running 123.34 feet N. 70°, 23', 55" W. to the southeasterly corner of Lot 500; then turning and running 200.95 feet S. 22°, 42', 36" W. along the eastern boundary of Lot 500 to Green Cove Lane; then turning and running along Green Cove Lane 93.54 feet S. 67°, 17', 24" E. to a southeasterly curve on Green Cove Lane, then along said curve 47.12 feet to the northeasterly corner of Lot 498, then turning and running 157 feet S. 22°, 42', 36" W. along the western boundary of Lot 498 to the point of beginning;

(b) by contrast, on the Subdivision Plan, the metes and bounds of the Carport Lot (i.e., Lot 495 on said plan) are as follows: starting at the southeasterly corner of Lot 495 and running 123.35 feet N. 70°, 23', 11" W. to the southeasterly corner of Lot 496, then turning and running 200.98 feet S. 22°, 42', 36" W. along the eastern boundary of Lot 496 to Green Cove Lane; then turning and running along Green Cove Lane 95.96 feet N. 67°, 17', 24" W. to a southeasterly curve on Green Cove Lane, then along said curve 47.12 feet to the northeasterly corner of Lot 494, then turning and running 157.05 feet S. 22°, 42', 36" W. along the western boundary of Lot 494 to the point of beginning;

(c) on the Land Court Plan, the metes and bounds of the House Lot (i.e., Lot 500 on said plan) are as follows: starting at the southeasterlycorner of Lot 500 and running 96.22 feet N. 70°, 23', 55" W. to the southeasterly corner of Lot 430; then turning and running 184.13 feet N. 12°, 00', 55" E. along the eastern boundary of Lot 430; then turning and running along the northern boundary of Lot 430 108.22 feet N. 67°, 18', 05" W. to a southwesterly curve towards Acapesket Road, then along said curve 41.96 feet to Acapesket Road, then turning and running back along a northeasterly curve on Green Cove Lane 47.12 feet, then running an additional 93.87 feet along a diminished angle of the aforesaid northeasterly curve, then running along Cove Street 50.00 feet S. 67°, 17', 24" E., then running an additional 95.96 feet along Cove Street along the same angle, then running an additional 10.00 feet along Cove Street along the same angle, then turning and running 200.96 feet S. 22°, 42', 36" W. along the western boundary of Lot 499 to the point of beginning;

(d) by contrast, on the Subdivision Plan, the metes and bounds of the House Lot (i.e., Lot 496 on said plan) are as follows: starting at the southeasterly corner of Lot 496 and running 96.22 feet N. 70°, 23', 11" W. to the southeasterly corner of a lot labeled “Henry Neidzniecki”; then turning and running 184.15 feet N. 12°, 00', 57" E. along the eastern boundary of the lot labeled “Henry Neidzniecki”; then turning and running along the northern boundary of the lot labeled “Henry Neidzniecki” 108.22 feet N. 67°, 18', 05" W. to a southwesterly curve towards Acapesket Road, then along said curve 41.96 feet to Acapesket Road, then turning and running back along a northeasterly curve on Green Cove Lane 47.12 feet, then running an additional 93.87 feet along a diminished angle of the aforesaid northeasterly curve, then running along Cove Street an additional 5.10 feet, then running along Cove Street 20.00 feet N. 67°, 17', 24" W., then running an additional 24.90 feet along Cove Street along the same angle, then running an additional 95.96 feet along Cove Street along the same angle, then running an additional 10.00 feet along Cove Street along the same angle, then turning and running 200.98 feet S. 22°, 42', 36" W. along the western boundary of Lot 495 to the point of beginning. [Note 5]

5. The House Lot is depicted as Lot 500 on the Land Court Plan, which corresponds to Lot 496 on the Subdivision Plan, albeit with the above-cited differences in the metes and bounds. According to the parties (and as depicted on Interim Plan 314-25), the House Lot is 27,945 square feet in area, although it is shown on the Subdivision Plan as 27,943 square feet in area. The Carport Lot is depicted as Lot 499 on the Land Court Plan, which corresponds to Lot 495 on the Subdivision Plan, albeit with the above-cited differences in the metes and bounds. The Carport Lot is shown on the Subdivision Plan as 23,480 square feet in area, but as 23,485 square feet in area on Interim Plan 314-25. The Land Court Plan does not state the total area of either Lot 499 or Lot 500.

6. By deed dated November 16, 1990 and recorded in the Barnstable County Registry of Deeds (the “Registry”) as Document No. 517341-1 (Certificate of Title No. 121954) (the “1990 Deed”), John L. Druley (“Druley”), Trustee of Wexford Realty Trust (the “Wexford Trust”) conveyed to Plaintiff the House Lot, which was described in said deed as the lot “shown as Lot No. 500 on [the Land Court Plan]”. [Note 6] Other than this reference to the Land Court Plan, the 1990 Deed defined the property conveyed only as “Lot 500 Green Cove Lane, Falmouth, MA”. [Note 7] It appears that Plaintiff purchased the House Lot to serve as a part-time vacation residence, which she periodically rents out to short-term tenants. [Note 8]

7. The Town originally enacted its zoning bylaw (the “Bylaw”) on April 2, 1979. Pursuant to the Bylaw, the House Lot and the Carport Lot are located in the “Single Residence C” zoning district. In April of 1993, the Town amended Section 240-67 (A) of the Bylaw to increase the minimum lot area in the “Single Residence C” zoning district (which is the district in which Locus is located) from 20,000 square feet to 40,000 square feet (the “1993 Amendment”). [Note 9]

8. By deed dated August 27, 1993 and recorded in the Registry as Document No. 591807-1 (Certificate of Title No. 131206) (the “1993 Deed”), Plaintiff’s late husband, Michael Everett (“Everett”), purchased the Carport Lot from Druley, acting as trustee of the Wexford Trust. [Note 10]

In said deed, the Carport Lot is described only as “that certain parcel located in Falmouth, Barnstable County, Massachusetts, Shown as Lot 499 Green Cove Lane, East Falmouth, Massachusetts, as shown on [the Land Court Plan]”. The Carport Lot is 23,480 square feet in area, has a minimum average width in excess of 100 feet, and has 140.66 feet of frontage on Green Cove Lane, as depicted on the Land Court Plan. Plaintiff claims that she had minimal, if any, involvement in Everett’s purchase of the Carport Lot, and that Everett purchased the Carport Lot to assist with his painting business and for gardening.

9. In or about October of 1994, Everett caused a covered carport/shed (the “Carport”) to be constructed on the Carport Lot without a building permit. The Carport is located near the middle of the Carport Lot, and does not straddle the property line between the Carport Lot and the House Lot. It connects to Green Cove Lane via a driveway that is separate and distinct from the driveway connecting the residence on the House Lot to Green Cove Lane. In connection with constructing the Carport, Everett applied for (and received) a wiring permit from the Town (Permit No. 941119) to provide electrical service to the Carport. Upon issuing said wiring permit, the Town Inspector of Wires notified the Commissioner that the Carport was being built without a building permit from the Town. Plaintiff claims that she had no involvement of any kind in Everett’s construction of the Carport. Plaintiff represents that Everett used the Carport primarily to store a boat (the use of which by Plaintiff and/or Everett is not discussed) and for storage in connection with Everett’s painting business. [Note 11] However, when Everett later applied for a special permit to maintain the Carport (discussed, infra), he stated in his application that the purpose of the Carport was “to hold tractors, lawnmowers, rototiller, wheelbarrows, gardening tools and utility trailer”; further, Plaintiff acknowledged in her deposition that Everett did the landscaping and lawn maintenance for both lots as if they were one lot.

10. Also in or around October of 1994, after investigating the Carport Lot, the Commissioner contacted Everett by telephone and notified him of his opinion that the Carport was not authorized under the Bylaw. The Commissioner’s reasoning for this opinion was that the Carport constituted an “accessory structure” that could not be built on a Residential Zone C lot without an accompanying primary structure, which was absent on the Carport Lot. After a conversation between the Commissioner and Everett, the Commissioner placed a notation on Everett’s wiring permit stating that Everett was to apply to the ZBA for a special permit for the Carport.

11. On or about November 18, 1994, Everett submitted an application to the ZBA for a special permit to maintain the Carport. [Note 12] However, on January 17, 1995 (the “1995 ZBA Decision”), the ZBA denied Everett’s special permit application, stating, inter alia, that the Carport might be permitted if “the adjacent lot were combined with the subject lot,” and noting that Everett lived on the House Lot together with Plaintiff. The 1995 ZBA Decision did not indicate that the Carport Lot and the House Lot had merged for any reason. Plaintiff claims that she had no involvement of any kind with Everett’s application for a special permit.

12. In August of 1995, Plaintiff applied to the Town Building Department (the “Building Department”) for approval of plans to build a twenty foot by twenty foot shed on the House Lot to store garden equipment. The Building Department approved Plaintiff’s application. This shed was constructed thereafter, and it is a separate and distinct structure located solely on the House Lot at a significant distance from the Carport.

13. On July 2, 1999, in response to a complaint from the ZBA, the Commissioner sent Everett a notice of zoning violation, which stated that the Carport was an illegal structure under the Bylaw, and ordered Everett to remove the Carport or pay daily fines for every day that the Carport continued to exist. The Commissioner’s letter was addressed only to Everett at an address not corresponding to either the House Lot or the Carport Lot, which appears to have been Everett and Plaintiff’s primary residence; Plaintiff was not addressed in this letter or referred to therein in any way. The letter did not indicate that the House Lot and the Carport Lot had merged for any reason.

14. On April 24, 2000, Plaintiff (or someone purporting to represent her) [Note 13] applied to the Planning Board for an “approval not required under subdivision control” endorsement, pursuant to G.L. c. 41, § 81P, of a plan “to combine lots 499/500 to create one (1) lot” (the “ANR Plan”), which is entitled “Plan of Land located in Falmouth-Mass. Prepared for Susan C. Gallagher, dated April 24, 2000.” The ANR Plan depicts Locus as one parcel with a dashed line representing the boundary line between the House Lot and the Carport Lot. It describes Locus as 51,430 square feet in total area, and the metes and bounds of the House Lot and the Carport Lot correspond to their depictions in the Land Court Plan. On May 2, 2000, the Planning Board granted the requested endorsement of the ANR Plan. However, the ANR Plan was never recorded in the Registry or filed with the Land Court. At the time of the ANR Plan, the House Lot and the Carport Lot were owned separately by, respectively, Plaintiff and Everett. [Note 14]

15. By deed dated December 29, 2000 and recorded in the Registry as Document No. 821558-1 (Certificate of Title No. 160345) (the “2000 Deed”), Everett conveyed the Carport Lot to Plaintiff. According to Plaintiff, this was done for estate planning reasons after Everett was diagnosed with serious health problems. [Note 15] Plaintiff reports that Everett passed away in 2007.

16. On January 22, 2013, Plaintiff, through counsel, requested a zoning determination from the Commissioner that the Carport Lot was a separate buildable lot exempted from the increased area requirements for Residential Zone C lots under § 240-67, Footnote 7 (“Note 7") of the Bylaw, which states as follows:

Corrected Single Residence B and Single Residence C [minimum lot area requirements] shall not apply to anylot shown on a plan endorsed by the Planning Board prior to April 1, 1993, or to any lot shown on a plan submitted for approval to the Planning Board prior to April 1, 1993 and subsequently endorsed after that date. [Note 16]

17. On March 7, 2013, the Commissioner responded to Plaintiff’s request, opining that the House Lot and the Carport Lot had merged, stating as follows:

[I[t is my opinion, for zoning purposes, that the lot in question [i.e., the Carport Lot] was merged with the adjoining Lot 500. This opinion is based on the fact that the owners of the property constructed a shed and carport on lot 499 without the benefit of a Building Permit. The owners then applied to the Board of Appeals to allow the shed to remain. Said appeal was denied in 1995. The owners failed to remove the shed and continued to use it in conjunction with the single family dwelling on Lot 500. Thereby in my opinion, for zoning purposes, the two lots were merged.

18. On or about April 5, 2013, Plaintiff appealed the determination of the Commissioner to the ZBA (Appeal Case NO. 36-13). Upon receiving Plaintiff’s appeal, the ZBA consulted the Town Planning Department, who reported back to the ZBA as follows:

It appears that the ZBA explained a number of years ago that an accessory structure may not be placed on a lot without a principle [sic] use. Since the structure was not removed after the denial of the special permit, it follows that the owner allowed the lots to merge for zoning purposes so that the accessory structure would be subordinate to the house on Lot 500.

19. On June 17, 2013, the ZBA filed a decision with the Falmouth Town Clerk (the “2013 ZBA Decision”) denying Plaintiff’s appeal of the determination made by the Commissioner, stating, in relevant part, as follows:

The Board finds that denial of a Special Permit in 1994 to allow the accessory structure on Lot 499 was correct in that the structure that was being constructed on Lot 499 was not an allowed use in a residential district according to the Town bylaw, but is in fact allowed only as an accessory use to the dwelling. The Board further finds that there was definite intent by the owner of Lot 500 (Appellant) and her husband - owner of Lot 499 - to use the shed/carport on Lot 499 as an accessory use to Lot 500; [Note 17] and it is apparent that construction and use continued on Lot 499 after the denial of the Special Permit as if Lot 500 and Lot 499 were in fact merged. . . . The Board further finds that the Appellant was aware of Appeal 160-94, its denial and findings regarding the use of the lot according to Town bylaws. Furthermore, the Board finds that nothing was done to remove or abate the basis of the denial, but possibly enhanced the use and continued the use, including installation of utilities, for the past nineteen or so years. . . . The Board finds that an accessory use has to have a principal use on the same lot; the zoning bylaw requires a principal use with accessory uses allowed within the particular zoning district. The Board further finds that lack of enforcement for the existing structures does not protect the non-complying use as the burden of either removal of the structure or merging of the lots is that of the property owner(s) after the Appeal decision was made in 1994. Furthermore, the Board finds that to Appeal a current determination of the Building Commissioner for Lot 499 shows disregard of the decision made in Appeal #160-94 by the Board and understanding the intent of the Town bylaws. Therefore based on the above findings, the Board finds that the Appeal discussed and represented herein is denied and the determination of the Building Commissioner is upheld.

20. An underground sprinkler system existed on the House Lot prior to Plaintiff’s ownership thereof, which system was connected to the municipal water supply. At an unknown time after Everett purchased the Carport Lot, he caused an underground sprinkler system to be installed on that lot, which was connected to a well on the Carport Lot that he had dug at or around the same time. When he did so, he also caused the House Lot sprinkler system to be disconnected from the municipal water system and connected to the Carport Lot Well. Plaintiff alleges that the House Lot was connected to the well on the Carport Lot for environmental reasons, but that both lots’ sprinkler systems have not been in operation since approximately 2004-2005 (which implies that they were operational until 2004-2005). The well on the Carport Lot still exists, as does a pump connected to it, which is located in the Carport. No physical structure demarcates the lot line between the House Lot and the Carport Lot or divides said lots, nor is there any other indication (e.g., by landscaping) of that lot line.

21. The House Lot and the Carport Lot are taxed separately. The Carport Lot has a tax ID number of “3310001499” and the House Lot has a tax ID number of “3310001500”. Plaintiff claims that Everett handled all financial affairs with respect to the Carport Lot during the years in which he owned it, and that Plaintiff undertook such responsibility after the Carport Lot was conveyed to her in 2000.

22. With the exception of the above-noted well-serviced sprinkler system, the House Lot and the Carport Lot have separate utilities services, although the Carport Lot has never been connected to the Town’s water supply.

23. According to Plaintiff, she and Everett, at all times during their marriage, maintained separate finances. She claims that she purchased the House Lot herself with her own funds, and that Everett purchased the Carport Lot himself with his own funds several years later for reasons associated with his former painting business. She further states that neither she nor Everett ever intended for the Carport Lot to be merged with the House Lot.

24. After this litigation had been commenced, by two separate deeds both dated May 12, 2014 and recorded in the Registry as Document Nos. 1245532-1 and 1245533-1 (Certificate of Title Nos. 160345 and 121954) (together, the “2014 Deeds”), Plaintiff conveyed the Carport Lot and the House Lot, respectively, to herself as Trustee of the Susan C. Gallagher Trust. [Note 18]

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Before proceeding to a discussion of the parties’ dispositive motions, I must first dispose of the ZBA’s Motion to Strike a portion of the Gallagher Affidavit and Plaintiff’s Motions to Strike a portion of the ZBA’s reply brief and both affidavits of the Commissioner. A. The ZBA’s Motion to Strike

The ZBA argues that Paragraph 42 of the Gallagher Affidavit should be stricken because it improperly describes settlement discussions, and is therefore inadmissible. Paragraph 42 of the Gallagher Affidavit states, in full, as follows: “After the present litigation began, I offered through my attorney to remove the structure and even pay a fine. It is my understanding that the Zoning Board, through its attorney rejected this offer.” Plaintiff claims that this statement is “probative of the truthfulness of [Plaintiff]’s statement (which is disputed by Plaintiff) that she did not learn about the alleged zoning violation until 2013.”

Settlement discussions are generally “inadmissible to prove or disprove a defendant’s liability.” Zucco v. Kane, 439 Mass. 503 , 507 (2003); see also Mass. G. Evid. § 408. While settlement discussion may be admitted in limited circumstances (e.g., to impeach the credibility of a witness), none of the exceptions to the general rule barring admitting settlement talks applies here. Even if an exception did apply, Plaintiff’s statement is not relevant evidence, since whether or not Plaintiff approached the ZBA in or around 2013 with an offer to remove the Carport has no bearing whatsoever on whether Plaintiff ever knew of the dispute between her late husband and the ZBA over the construction of the Carport in the years between 1993 and 2000.

For the foregoing reasons, the ZBA’s motionto strike Paragraph 42 of the Gallagher Affidavit is hereby ALLOWED, and said paragraph is hereby stricken from the summary judgment record.

B. Plaintiff’s Motions to Strike

Plaintiff has moved to strike the two affidavits submitted by the Commissioner, claiming that the affidavits contain “contradictory statements”, and to strike portions of the ZBA’s reply brief on its motion for summary judgment for the same reason.

Turning first to Plaintiff’s motion to strike the Commissioner’s affidavits, Plaintiff contends that the two affidavits of the Commissioner are contradictory in various ways, most notably because, whereas the Commissioner referred to Lot 499 as having multiple owners in his first affidavit, he stated in his second affidavit that Gallagher was the sole owner of Lot 500 and Everett was the sole owner of Lot 499. Plaintiff takes this alleged contradiction to indicate that the Commissioner may have in fact remembered meeting with Plaintiff when she filed permit applications to construct the shed on the House Lot -- something the Commissioner denies recalling. Plaintiff also attempts to highlight what she describes as “the selective nature of Mr. Gore’s recollections”.

Having reviewed the Commissioner’s affidavits, it appears that, while there is some ambiguity in the usage of pronouns (i.e., the Commissioner’s use of “owners” rather than “owner” in his second affidavit), there is no real contradiction regarding the ownership of Lot 499 or any other topic. Even if the Commissioner’s affidavits had been, in some way, contradictory, that would raise an issue as to the weight this court accords the Commissioner’s testimony; it would not form a basis to strike possibly probative evidence from the summary judgment record.

The same is true for Plaintiff’s attempt to undermine the Commissioner’s affidavit testimony by attacking the Commissioner’s recollection of the events in question. [Note 19] The court will take into consideration the Commissioner’s own admissions as to the limits of his recollection in determining the weight to accord his testimony. However, such limits are not a reason to strike the Commissioner’s affidavits.

For the foregoing reasons, Plaintiff’s motion to strike the Commissioner’s affidavits is hereby

DENIED.

Turning to Plaintiff’s motion to strike portions of the ZBA’s reply brief on its motion for summary judgment, Plaintiff claims that the sworn affidavits of Patricia Harris, Esq. (“Harris”), counsel for the ZBA in this case, contains material contradictions. Specifically, Plaintiff contends that Harris’s first affidavit (which references the date of the ZBA hearing on Everett’s application for a special permit to maintain the Carport as being December 21, 1995) is directly contradicted by the ZBA’s reply brief, page 3, which states the date of said hearing as actually having taken place on December 21, 1994. The ZBA’s reply brief further explains that the statement in Harris’s affidavit was a “scrivener’s error” based upon the same error in the minutes of the hearing.

The first thing to note here is that the ZBA’s supposedly “contradictory” statements in question do not actually pertain to the merits of this case. This case does not concern whether the ZBA acted in a timely fashion on Everett’s application for a special permit (which were filed over twenty years ago), but rather whether the ZBA was correct in determining that the two lots forming Locus had merged for zoning purposes. Under the circumstances, Harris’s explanation that her first affidavit contained a typographical error is reasonable and acceptable, and it is clear that the she was merely attempting to correct that error in the ZBA’s reply papers (after Plaintiff attempted to exploit the mistake in her opposition brief). By acknowledging the error, the ZBA effectively repudiated Harris’s previous erroneous statement and provided a correction. There is therefore no contradiction, nor any reason to strike any portion of the ZBA’s reply brief. Even if there had been a contradiction, as explained in connection with Plaintiff’s motion to strike the Commissioner’s affidavits, that would, at most, factor into the weight the court gives to Harris’s affidavit, and would not be a basis to strike evidence from the summary judgment record.

Next, Plaintiff challenges a statement in the ZBA’s reply brief that raises an issue as to the credibility of Plaintiff’s affidavit. [Note 20] Plaintiff objects to this statement, claiming that a witness’s credibility should not be determined on summary judgement. However, the case law cited by Plaintiff in support of this conclusion pertains only to cases where a persons’ subjective state of mind is at issue. Nothing bars this or any court from weighing the evidentiary value of the evidence submitted into the summary judgment record. In fact, assessing such weight is part and parcel of the court’s role in considering dispositive motions. The court will consider the statements made by Plaintiff in her affidavit, and, to the extent that she contradicts herself, that information is obviously relevant to the question of what weight the court should accord her statements.

For the foregoing reasons, Plaintiff’s motion to strike portions of the ZBA’s reply brief on its motion for summary judgment is hereby DENIED.

C. The Parties’ Motions for Summary Judgment

Having resolved the parties’ procedural motions, I turn next to their motions for summary judgment. Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. E.g. Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat’l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56 (c).

In an appeal, such as this, filed under G.L. c. 40A, § 17, the court’s review of the facts at issue and determinations of the ZBA is de novo; as such, the findings and determination of the ZBA are accorded no evidentiary value. E.g. Josephs v. Bd. of App. of Brookline, 362 Mass. 290 , 295 (1972). Nonetheless, the court’s review is “circumscribed: the decision of the [ZBA] cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts v. Sw. Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (quotations omitted); see also Britton v. Zoning Bd. of App. Of Gloucester, 59 Mass. App. Ct. 68 , 73 (Mass. App. Ct. 2003) (“a highly deferential bow [is due] to local control over community planning”).

In sum, the court’s task is “to ascertain whether the reasons given by the [ZBA to deem the lots in question as having merged] had a substantial basis in fact, or were . . . mere pretexts for arbitrary action or veils for reasons not related to the purposes of the zoning law.” Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (Mass. App. Ct. 1973); see also Britton, 59 Mass. App. Ct. at 74-75 (the local board’s decision must be supported by a rational view of the facts). The sole issue in this case is the ZBA’s determination that the House Lot and the Carport Lot merged for zoning purposes. Plaintiff claims this determination was erroneous, and that the Carport Lot is eligible to remain separate from the House Lot (for zoning purposes) under the grandfather protection of the Zoning Act, G.L. c. 40A, § 6 and/or Bylaw §240-67.

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 noncomformities 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 (1993))). This doctrine of presumed 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).

The determination of whether adjacent properties should be deemed to have merged for zoning purposes is a highly fact-sensitive inquiry. In making such determinations, courts have considered several factors, including (a) whether the adjacent lots were conveyed by one deed or multiple deeds (e.g. Lindsay v. Bd. of App. of Milton, 362 Mass. 126 , 130-131 (1972) (finding several properties previously conveyed as separate lots to have merged upon their joint conveyance in a subsequent deed)); (b) whether the lots have been assessed separately or together (e.g. id. at 132, n. 6 (“where owners have benefitted from a particular assessment practice, it is not unjust to require that an existing use be maintained even though, under a different interpretation of the zoning by-law, a more favorable use might be open to the owners” (quotation omitted)); Seltzer, 24 Mass. App. Ct. at 524 (the fact that lots were assessed as one lot was a relevant factor but did not require a finding of merger); McGrath v. Zoning Bd. of App. of Chatham, 76 Mass. App. Ct. 1120 , *3 (2010) (unpublished opinion) (separate assessment of property was a relevant factor); (c) the location of structures on property and whether structures cross lines (e.g. Seltzer, 24 Mass. App. Ct. at 523-524 (construction of a residence straddling lot lines does not necessarily entail merger of the lots); (d) whether the owner prepared a plan of the merged lots (e.g. McGrath, 76 Mass. App. Ct. at 1120, *3 (recorded plan was a “perimeter plan”, not a “consolidation plan”, and thus did not establish an intent to merge lots)); Seltzer, 24 Mass. App. Ct. at 523 (preparation of a plan setting new lot line division between two adjacent lots suggested an intent to keep the lots separate); (e) whether separate ownership is a ruse to avoid the effects of the new law (e.g. Distefano v. Town of Stoughton, 36 Mass. App. Ct. 642 , 644 (1994) (disregarding “checkerboard” conveyances to create an appearance of separate ownership); Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690-691 (1989) (conveyance of adjacent lot to a trust found not to preclude merger), aff’d, 406 Mass. 1008 (1990)); (f) whether the common owner exercised control over both lots (e.g. Distefano, 36 Mass. App. Ct. at 644 (one party exercised control over multiple lots despite sham conveyances to create the appearance of separate ownership)); and (g) whether the properties have been physically walled off or otherwise separated from each other (e.g. Vetter, 330 Mass. at 630 (finding that physical separation of lots might have undermined application of the merger doctrine)).

G. L. c. 40A, § 6 provides an exception to the common law doctrine of merger, which gives protection to undersized lots from subsequent zoning regulations, but such protection applies only for lots not held in common ownership. E.g. Sorenti v. Bd. of App. of Wellesley, 345 Mass. 348 , 353 (1963) (finding that grandfathering protection is lost upon subsequent common ownership); Vetter, 330 Mass. at 630-631. Specifically, G. L. c. 40A, § 6 states, in relevant part, as follows:

Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirements but at least five thousand square feet of area and fifty feet of frontage . . . . 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.

However, Massachusetts courts have routinely acknowledged that G. L. c. 40A, § 6 was not intended to replace or abrogate the common law doctrine of merger, only to provide a specific, qualified exception thereto. E.g. Preston v. Bd. of App. of Hull, 51 Mass. App. Ct. 236 , 243-244 (2001) (quotation omitted). Moreover, 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. 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, 362 Mass. at 132)). Thus, “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 v. Zoning Bd. of App. of Weston, 84 Mass. App. Ct. 151 , 156, n. 6 (2013). Local authorities can also circumvent the common law merger rule by enacting so-called “indulgent” bylaws that specifically apply exemptions 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 Masss. 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 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). Here, the only relevant local bylaw provision is Note 7, which states as follows:

Corrected Single Residence B and Single Residence C [minimum lot are requirements] shall not apply to any lot shown on a plan endorsed by the Planning Board prior to April 1, 1993, or to any lot shown on a plan submitted for approval to the Planning Board prior to April 1, 1993 and subsequently endorsed after that date.

On its face, this provision of the Bylaw does offer more liberal grandfathering protection than does G.L. c. 40A, §6, but it does not explicitly deal with the issue of common ownership.

Turning first to G.L. c. 40A, §6, Plaintiff claims that this section is “irrelevant” because she did not rely on this section in seeking a ZBA determination that the Carport Lot is buildable. It is true that Plaintiff did not cite G.L. c. 40A, §6 in her correspondence to the ZBA; however, the statute remains relevant on the question of whether merger occurred, as it represents an integral part of the state and local regimes by which exceptions to the common law merger doctrine are applied. Applied to the instant dispute, while the Carport Lot meets the minimum lot size and frontage requirements of G.L. c. 40A, §6, I find that when the Carport Lot came to be held under common ownership by Plaintiff with the House Lot (an undersized, developed lot) in 2000, the Carport Lot lost the grandfathering protection under G.L. c. 40A, §6 from the Bylaw § 240-67’s increased lot size requirements. See Timperio, 84 Mass. App. Ct. at 156, n. 6; Sorenti, 345 Mass. at 353; Vetter, 330 Mass. at 630-631.

Turning next to to the local Bylaw, both Plaintiff and Defendant admit that, upon adoption by the Town of the 1993 Amendment (which raised Bylaw § 240-67’s minimum lot size requirement applicable to lots in the Residential Zone C from 20,000 square feet to 40,000 square feet), the House Lot and the Carport Lot both became undersized, non-conforming lots that would have been eligible for the grandfathering protections of G.L.c. 40A, §6, but that said lots have since come under common ownership. The parties disagree as to the legal significance of the common ownership as it applies to the Bylaw. At issue, here, then, are (a) whether the Carport Lot was ever subject to the more liberal grandfathering protections set forth in Note 7 (whose grandfathering protection is based on whether a lot is depicted on a plan endorsed by the Planning Board before the 1993 Amendment took effect), and, if so, (b) whether, subsequent to receiving protection under Note 7, the Carport Lot lost such protection by merging through operation of law with the House Lot.

On the first point, the ZBA contends that the Carport Lot is not protected by the grandfathering protection of Note 7, since, the ZBA claims, such lot was not depicted on the Subdivision Plan or any other plan “endorsed by the Planning Board prior to April 1, 1993, or to any lot shown on a plan submitted for approval to the Planning Board prior to April 1, 1993.” As noted above, however, the Subdivision Plan was submitted to the Land Court for approval, and -- after the minor revisions by the Land Court Engineering Division noted on Interim Plan 314-25 -- was later registered as the Land Court Plan. Interim Plan 314-25 clearly indicates on its face that it was approved by the Falmouth Planning Board in 1986. Thus, the sum and substance of the Land Court Plan was approved by the Planning Board. Thus, I find that all the lots contained on the Land Court Plan are (barring merger) eligible for the Bylaw’s grandfathering protection. [Note 21]

Turning next to the second point, I must next consider whether, despite receiving grandfathering protection under Note 7, the Carport Lot lost such protection by merging with the House Lot (for zoning purposes) at any point. Plaintiff, for her part, contends that Note 7 is an “indulgent” law, which protects her properties from application of the doctrine of merger. The ZBA disputes Plaintiff’s interpretation of the Bylaw, and claims that the Carport Lot merged with the House Lot by operation of law based upon the conduct of Plaintiff and Everett before Plaintiff acquired title to both properties. The ZBA further claims that, even if merger by the conduct of Plaintiff and Everett had not occurred, the properties nonetheless merged when Plaintiff received title to Lot 499 in 2000.

As noted, supra, however, on its face, Note 7 does not make any mention of how lots that come under common ownership after the 1993 Amendment should be treated. In fact, Note 7 (unlike G.L. c. 40A, § 6) does not mention common ownership at all. Thus, while this provision clearly protects independent lots that do not meet new zoning requirements, it does not specifically provide that lots that come under common ownership should be exempt from the common law doctrine of merger. In sum, I find that Note 7 is not an indulgent bylaw provision to protect lots from merger upon common ownership. See Preston, 51 Mass.App.Ct. at 240.

Having found that Note 7 is not an indulgent bylaw provision, the standard common law doctrine of merger governs whether the House Lot and the Carport Lot are eligible for the grandfathering provision of Note 7. As found above with respect to G.L. c. 40A, §6, I find that when the Carport Lot came to be held under common ownership by Plaintiff with the House Lot (an undersized, developed lot) in 2000, the Carport Lot lost its local protection under Note 7 from the Bylaw’s increased lot size requirements set forth in Bylaw § 240-67. See Timperio, 84 Mass. App. Ct. at 156, n. 6; Sorenti, 345 Mass. at 353; Vetter, 330 Mass. at 630-631.

As an alternative to their argument that the Carport Lot merged with the House Lot in 2000 pursuant to the 2000 Deed, the ZBA contends that the House Lot and the Carport Lot merged even before they came under the common ownership of Plaintiff based upon Plaintiff and Everett’s use of the two lots as one parcel -- as suggested by the lack of boundary between the two lots, the common landscaping of the two lots, and the shared underground sprinkler system and well. The ZBA further claims that the ANR Plan conclusively demonstrates an intent to merge the two lots. Plaintiff counters by disclaiming any knowledge of or involvement with the ANR Plan, and claims that it was never her intent that the two lots be merged; rather, she claims, the Carport Lot was used exclusively by Everett primarily for use with his boat and his business. [Note 22] Plaintiff further claims that she only came to own the Carport Lot when Everett conveyed it to her for estate planning reasons after Everett had been diagnosed with serious health problems.

Having already found the Carport Lot and the House Lot to have merged when they came under common ownership of Plaintiff in 2000, it is not necessary to proceed to consider the ZBA’s alternative argument as to whether merger might have occurred even sooner. Thus, the court declines to make specific findings or rulings on this issue. [Note 23]

Based upon the foregoing discussion, Defendants' Motion for Summary Judgment is ALLOWED; Plaintiff’s Cross-Motionfor Summary Judgment is DENIED. Plaintiff’s complaint and this case are therefore DISMISSED, with prejudice.

Judgment to that effect shall issue of even date herewith.