The Board of Selectmen and the building inspector of the Town of Acushnet (collectively, the “Town”), dissatisfied with the granting of a dimensional variance by their colleagues on the Town of Acushnet Zoning Board of Appeals (the “Board”) for the construction of a single-family dwelling in the recently down-zoned Residential Village zoning district, appealed pursuant to G. L. c. 40A, §17, seeking to have the variance annulled. The facts not being in dispute, the Town and the applicant for the variance have filed cross-motions for summary judgment, and have submitted the case on a joint statement of agreed facts.

The case hinges on whether the subject property, which, considered by itself, does not meet the minimum lot width requirements of the Acushnet Zoning Bylaw, but meets all other dimensional requirements, can be assessed for its compliance with the statutory conditions for the granting of a variance, or whether, because it was formerly in common ownership with the adjoining parcel, it is not eligible for consideration, having merged for zoning purposes with the adjacent property. For the reasons stated below, I find and rule that the subject property was merged for zoning purposes with the adjoining parcel, and accordingly, was not properly considered by the Board for the granting of a variance.

FACTS

The material undisputed, agreed facts pertinent to these cross-motions for summary judgment are stated in the Joint Statement of Agreed Facts submitted by the parties, which I adopt.

According to the facts as agreed by the parties, defendant Joseph Botelho, as trustee of the Botelho Family Real Estate Trust (“Botelho”), purchased “two abutting vacant lots” by a deed dated August 3, 2012 and recorded with the Bristol County Registry of Deeds in Book 10473, Page 166. The property as purchased by Botelho was described on the deed by a single metes and bounds description, and was further described as “[c]ontaining 29,270 square feet more or less, and being Lots numbered 10 and 12, as shown on (a plan entitled ‘Village View Heights’, prepared for John S. Hopp and Alice A. Hopp, dated July 21, 1964) (the “Hopp Plan”). Botelho paid $40,000.00 for the property in 2012. [Note 1] As shown on the Hopp plan, Lot 12 had 100 feet of frontage on Village Avenue in Acushnet, was roughly rectangular in shape, and had an area of 11,620 square feet. Lot 10, with 12,650 square feet of area, had 132 feet of frontage on Village Avenue, and a rear lot line only about 65 feet long, giving the lot a trapezoidal shape, wider at the front and narrower at the rear.

When Botelho purchased the property in 2012, the property was in a “Residence A” zoning district in which a minimum lot size of 60,000 square feet of area was required for a buildable lot. [Note 2] On May 20, 2013, the Acushnet Town Meeting adopted a change to the Bylaw and the Zoning Map, placing the Botelho property in a newly down-zoned Residential Village, or “RV” zoning district, in which a single-family house could be built on a lot with 100 feet of frontage, 100 feet of lot width measured at all points from the front lot line to a depth of 80 feet, and a minimum lot area of 10,000 square feet. The Botelho property, viewed as a single lot, complied with the new RV district dimensional requirements. Viewed as two lots as shown on the 1964 Hopp plan, Lot 12 would be a compliant, buildable lot under the new RV zoning requirements, but Lot 10 would not. Although Lot 10 had sufficient frontage and area, as a result of its trapezoidal shape, it did not maintain sufficient lot width back to a depth of 80 feet. At a depth of 80 feet, Lot 10 was 92 feet wide, 8 feet short of the required lot width.

Bothelho, hoping to have two buildable lots instead of one, asserts that the building inspector advised him that no building permit would be issued for either of former Lots 10 or 12 unless an Approval Not Required (“ANR”) plan dividing the property was endorsed by the planning board pursuant to the Subdivision Control Law, G. L. c. 41, §81P. Botelho submitted an ANR plan dividing the Botelho property into two lots, designated as Lots 25-U-1 and 25-U-2, with Lot 25-U-1 corresponding essentially to the former Lot 10 (the trapezoidal shaped lot) and Lot 25-U-2 corresponding essentially to former Lot 12. The planning board endorsed the ANR plan on August 15, 2013, it was recorded at the registry of deeds, and Botelho sold Lot 25-U-2 (former Lot 12) to a third party a week later for $90,000. Lot 25-U-2, as sold, complies with the dimensional requirements for a building lot in the RV zoning district. [Note 3]

On October 7, 2013, Botelho applied for a variance from the lot width provision of the Bylaw so that he could obtain a building permit for Lot 25-U-1. Following a public hearing on November 4, 2013, the Board voted unanimously to grant the requested relief and filed a written decision with the town clerk on November 8, 2014. The Town appealed, resulting in the present action. Following an agreement of the parties, the court (Grossman, J.) issued an Order of Remand to the Board “for further hearing and decision for the purpose of revising its November 4, 2013 decision to include detailed findings as required under M. G. L. c. 40A, §10.” On remand, the Board conducted a hearing on April 14, 2014, and again voted unanimously to grant the requested variance. The Board’s revised decision was filed with the town clerk on April 15, 2014.

In its decision, the Board, identifying the property as Lot 25-U-1, found that Lot 25-U-1 is uniquely shaped as a trapezoid that gets narrower from front to rear, and that this condition did not generally affect other lots in the zoning district, which “generally maintain a rectangular shape”. The Board found that this condition constituted a hardship to the owner by rendering an otherwise zoning-compliant lot unbuildable, and that relief, which would make the lot buildable as a single-family house lot, may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent of purpose of the Bylaw. The Board further found that, “In fact, it is the finding of this Board that the desired relief would be consistent with the intended purposes of the RV District and would promote the public good by creating additional housing stock as envisioned when the RV District was established.”

The court having retained jurisdiction following the remand, the revised decision of the Board is now before me on the parties’ cross-motions for summary judgment.

DISCUSSION

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

STANDING.

The usual initial inquiry and analysis in a zoning appeal is whether the plaintiff is a “person aggrieved”. That inquiry is unnecessary in the present case, as the plaintiffs, the Board of Selectmen and the building inspector, have statutory standing. “Any person aggrieved by a decision of the board of appeals…or any municipal officer or board may appeal…” G. L. c. 40A, §17.

STANDARD OF REVIEW FOR ZONING APPEAL.

The court’s inquiry in reviewing a decision of a board of appeal granting zoning relief is a hybrid requiring the court to find the facts de novo¸ and based on the facts found by the court, and not those found by the board, to affirm the board’s decision unless it was “based on a legally untenable ground, or was unreasonable, whimsical, capricious, or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, 336 Mass. 635 , 639 (1970). This is a two-part inquiry requiring the court to first determine whether the board’s decision was based on a legally untenable ground: a “standard, criterion, or consideration not permitted by the applicable statutes or by-laws”. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). Only after determining that the decision was not based on a legally untenable ground does the court consider, on a more deferential basis, “whether any ‘rational view of the facts the court has found supports the board's conclusion…’” Sedell v. Zoning Bd. of Appeals of Carver, 74 Mass. App. Ct. 450 , 453 (2009), quoting Britton, supra, at 75.

WHETHER THE LOT MERGER DOCTRINE BARRED CONSIDERATION OF THE PROPERTY FOR THE GRANTING OF A VARIANCE.

In the context of the present case, this two-part inquiry requires me to first inquire whether the Board based its decision on a legally untenable ground by treating Lot 25-U-1 as a separate lot, rather than dismissing it for consideration for a variance on the basis of its having been merged for zoning purposes with Lot 25-U-2 under the common ownership doctrine. If the lot was merged for zoning purposes with Lot 25-U-2 by the fact of Botelho’s ownership of both lots at a time when both lots together comprised a lawful, buildable lot, then the Board could not legally consider whether Lot 25-U-1 met the standards for the granting of a variance for lot width on the basis of its unique shape. On the other hand, if Lot 25-U-1 maintained its status as a separate lot, notwithstanding its common ownership with the adjacent lot, then the Board could consider whether the conditions for the granting of a variance had been met.

The court has not been provided with information as to whether the two lots (then Lots 10 and 12) complied with the zoning in effect when the lots were created in 1964, nor have the parties provided the court with information as to when the two lots became part of the RA zoning district, making the required lot area 60,000 square feet. The parties have stipulated that the lots, together, failed to meet the requirements for a buildable lot when they were acquired by Botelho in 2012. I therefore accept the parties’ stipulation that prior to the down-zoning effected by adoption of the RV district, not even one house could be built on the two lots. The parties agree that when the RV zoning district was adopted in May, 2013, the two lots had been in common ownership at least since the previous August when they were purchased by Botelho (and for some period of time before that, as evidenced by the fact that the prior owner conveyed the two lots by a single deed). The two lots together were more than large enough to constitute a single conforming building lot, but not quite large enough to constitute two conforming lots under the newly adopted RV district dimensional requirements.

Lot 25-U-1, since it was in common ownership with the adjacent lot at the time the RV zoning district was adopted, is not entitled to the benefits of the statutory exemption from the merger doctrine found in the first sentence of G. L. c. 40A, §6, fourth paragraph, (or to the analogous provisions of Section 4.3 of the Bylaw). Section 6 provides that a zoning change shall not apply to a lot for single- or two-family residential use which was not in common ownership with adjacent land. The exemption in Section 6 has been construed strictly so as not to impinge on the strong policy consideration of the merger doctrine, which is “to foster the creation of conforming lots.” Asack v. Bd. of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999), quoting Murphy v. Kotlik, 34 Mass. App. Ct. 410 414 (1993). The strict requirement that a lot will not be entitled to the statutory exemption from the merger doctrine if it is held in common ownership with any adjoining land “represents a codification of a principle of long-standing application in the zoning context: 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.” Timperio v. Zoning Bd. of Appeals of Weston, 84 Mass. App. Ct. 151 , 158 (2013), quoting Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 690 (1990). In examining whether the statutory exemption applies, “it is the most recent instrument of record prior to the effective date of the zoning change that controls.” Timperio, supra, at 158.

As of the date of the zoning change adopting the RV district, the most recent instrument of record was Botelho’s 2012 deed for the acquisition of both lots together. Accordingly, the lots were in common ownership and not entitled to the exemption under the first sentence of G. L. c. 40A§6, fourth paragraph. Botelho has also not shown that the lots, even as commonly owned, qualify for the statutory exemption available for up to three adjacent commonly owned lots that were compliant with the zoning requirements in place as of January 1, 1976, as provided in the second sentence of G. L. c. 40A, §6, fourth paragraph. He has not shown that the lots were in compliance with the zoning in effect on January 1, 1976, and, in any event, the exemption is only available in the case of an increase in dimensional requirements, and not, as here, a decrease.

The Bylaw does not provide a more generous exemption to the merger doctrine than does G. L. c. 40A, §6. The Bylaw, in Section 4.3A, provides a single-family exemption only for a lot that was in separate ownership from adjoining land at the time the dimensional requirements of the Bylaw were adopted. Lot 25-U-1 does not meet this requirement, since it was in common ownership with adjoining land at the time the RV zoning district was adopted.

It remains to consider whether the two former lots can be recognized as separate lots under any other exemption to the common law merger doctrine. “Under the common law merger doctrine, when adjacent nonconforming lots come into common ownership, they are normally merged and treated as a single lot for zoning purposes.” Hoffman v. Bd. of Zoning Appeal of Cambridge, 74 Mass. App. Ct. 804 , 811 (2009). The Massachusetts courts have considered, but have declined to adopt a rule that would allow commonly owned lots to be exempt from the merger doctrine if they “in some sense retain their separate identities”. Id., at 812.

If there was any authority for such a common law “separate identity” exemption, Lots 25- U-1 and 25-U-2 would not be likely to qualify. The two lots, although created as Lots 10 and 12 in 1964 on the Hopp plan, have been in common ownership for at least some period of time prior to Botelho’s purchase of them in 2012. They were treated as a single lot for conveyancing purposes, as they were conveyed on a single deed with a single metes and bounds description describing both parcels together as one 29,270 square foot lot. Whatever the reason for the ANR plan, it was at least to some extent a concession by Botelho to the building inspector that in order to be recognized as two separate lots, the property had to be re-divided. Accordingly, the two former lots lost their “separate identities” sometime prior to their purchase by Botelho in 2012, and certainly by the time they were purchased as one lot by Botelho in 2012. The endorsement of the ANR plan did nothing to revive the “separate identities” of the now-combined single parcel. “A person owning adjoining record lots may not artificially divide them so as to restore old record boundaries to obtain a grandfather nonconforming exemption;…” Asack v. Bd. of Appeals of Westwood, supra, at 736 (1999).

Accordingly, I conclude that Lots 25-U-1 and 25-U-2 were merged for zoning purposes because they were in common ownership at all relevant times. They constituted one conforming lot for zoning purposes, and Lot 25-U-1 could not be validly split off from the rest of the parcel and form the basis of new buildable lot. For that reason, it was legally untenable for the Board to consider whether Lot 25-U-1 met the requirements of the Bylaw and of G. L. c. 40A, §10 for the granting of a variance.

Because I find that the subject property was merged with the adjoining property and did not have any lawful independent existence as a lot for zoning purposes, it is unnecessary to reach the second, more deferential part of the inquiry, in which the court would assess whether the Board’s findings, in particular its findings that the trapezoidal shape of the lot constituted a cognizable hardship, were “unreasonable, whimsical, capricious, or arbitrary.” MacGibbon v. Bd. of Appeals of Duxbury, supra, 336 Mass. at 639 (1970). Even if the more deferential analysis were to be conducted, the self-created nature of the hardship resulting from the division of the two lots would preclude a finding that a cognizable hardship existed so as to justify the granting of a variance. See Raia v. Bd. of Appeals of North Reading, 4 Mass. App. Ct. 318 , 322 (1976) (“The division of that property into two non-conforming lots did not create a substantial hardship especially affecting the vacant lot, even though the latter could not be built upon, as it could have remained part of a conforming lot.”); see also, Lamb v. Zoning Bd. of Appeals of Taunton, 76 Mass. App. Ct. 513 , 515-516 (2010), and cases cited therein.

CONCLUSION

For the reasons stated above, the Town’s motion for summary judgment is ALLOWED, and Botelho’s cross-motion for summary judgment is DENIED.

Judgment ANNULLING the variance granted by the Board will enter in accordance with this Decision.