Plaintiff filed his unverified Complaint on August 6, 2014, (1) pursuant to G.L. c. 231A, seeking a declaratory judgment against Defendant Guaranteed Builders & Developers, Inc. (GBD) that property located at 958 West Street in Leominster, Massachusetts (Lot 2) does not meet the minimum lot area requirements in the Leominster Zoning Ordinance (the Ordinance) and Lot 2 is not exempt from those requirements under G.L. c. 40A §6, ¶4 (hereinafter the Single-Lot Exception) or §22, ¶ 12.2.1 of the Ordinance; (2) pursuant to G.L. c. 231A, seeking a declaratory judgment that the notice of constructive grant requested by GBD from the Leominster Zoning Board of Appeals (the ZBA) related to GBDs appeal (the ZBA Appeal) concerning its application for a building permit for Lot 2 (the GBD Application) [Note 1] was null and without effect because GBD filed for such constructive approval before the one-hundred day period allowed by G.L. c. 40A §15 expired; and (3) pursuant to G.L. c. 40A §17, that if the GBD Application and request for variance was constructively approved, such approvals should be annulled because they are arbitrary and capricious, legally untenable, and in excess of the ZBAs authority under G.L. c. 40A §§ 6 and 10. GBD filed its Answer on September 8, 2014. A case management conference was held on October 1, 2014. [Note 2]
On April 30, 2015, Plaintiff filed his Motion for Summary Judgment, together with supporting memorandum, statement of facts, and appendix with exhibits, seeking summary judgment in his favor on all counts of the Complaint. Plaintiffs Motion for Summary Judgment argues that: (1) Lot 2 is not entitled to any exemption from current zoning requirements; (2) the ZBA Appeal was not constructively granted; and (3) if constructive approval of the building permit occurred, it must be annulled because such approval would be legally untenable, arbitrary and capricious, and in excess of the ZBAs authority.
On May 29, 2015, GBD filed an Opposition to Plaintiffs Motion for Summary Judgment and a Cross-Motionfor Summary Judgment, including a supporting memorandum, statement ofadditional facts, and appendix withexhibits, including the affidavit of Tracy Sharkey(Sharkey), Vice President of GBD (Sharkey Affidavit). GBD argues that: (1) it is entitled to a declaration that Lot 2 is a buildable lot because it has grandfather protection as a buildable non-conforming lot under the Ordinance § 22-10, ¶ 10.1 to 10.1.1 (the Non-Vacant Lot Exception) because the adjoining lot was not vacant; and (2) a constructive approval occurred because the ZBA did not take action within one hundred days as statutorily mandated. Although not discussed or developed at all in GBDs motion or opposition papers, the Sharkey Affidavit attests that Sharkey met with Plaintiff, Peter Niall, on or around April 25, 2013 to discuss Lot 2. Sharkey attests that Plaintiff reviewed documents she presented and stated that he would grant the permit when GBD applied. Sharkey states she would not have purchased the lot, or paid for several other ancillary services related to developing the lot, had Plaintiff indicated there would be an issue obtaining the building permit.
On June 9, 2015, Plaintiff filed a Reply Memorandum of Law in Response to GBDs Opposition to Plaintiffs Motion for Summary Judgment and GBDs Cross-Motion for Summary Judgment, a response to GBDs statement of additional facts, and a supplemental appendix including an affidavit of Plaintiff Peter Niall. Plaintiff asserts that: (1) the Sharkey Affidavit does not correctly characterize the interaction between the Leominster Building Department and GBD; (2) the assessed value of the Property does not support the assertion that Lot 2 is a buildable lot; 3) Plaintiff is not estopped from enforcing the Ordinance regardless of prior actions by city officials; and 4) the Ordinance does not express a clear intent to provide more lenient treatment for undersized lots in common ownership than G.L. c. 40A, §6.
A hearing was held on both motions on July 22, 2015 (the Summary Judgment Hearing), and at that time the matter was taken under advisement. Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl. Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
I find that the following material facts are not in dispute:
1. Plaintiff is the duly appointed Director of Inspections and Building Commissioner for the City of Leominster.
2. GBD is the record owner of a vacant parcel of land, known as Lot 2 (as hereinafter described).
3. As of 1975, Lot 2 was an undivided portion of a larger parcel of land consisting of 54,596 square feet (the West Street Parcel), as shown on plan titled Land in Leominster, Mass. Owned by Donald J. Anderson et ux dated November 28, 1975, prepared by William R. Bingham & Associates and recorded with the Worcester Northern District Registry of Deeds (the Registry) at Plan Book 203, Page 16. The West Street Parcel is located in the Residence A Zoning District (the RA District).
4. By a deed dated June 3, 1981 and recorded on June 18, 1981 with the Registry at Book 1266, Page 591, the West Street Parcel was conveyed to Leonard Rampello (Leonard) [Note 3] for $88,500.
5. The Ordinance in effect as of October 1, 1985, provided that the minimum required lot area required for a buildable lot in the RA District was 12,500 square feet, with a minimum lot frontage of fifty feet.
6. In 1993, a plan titled Land in Leominster, Mass. Owned by Leonard J. Rampello dated June 27, 1993 and prepared by Whitman & Bingham Associates, was recorded at the Registry at Plan Book 362, Page 13 (the 1993 Plan). The 1993 Plan shows the division of the West Street Parcel into two lots: Lot 1, with a lot area of 35,197 square feet and 193 feet of frontage, depicts an existing house and garage. Lot 2, with a lot area of 19,399 square feet and 67.89 feet of frontage, is depicted as vacant.
7. By two deeds dated October 11, 1994 and recorded in the Registry on November 1, 1994 at Book 2643, Pages 227 and 228, Leonard conveyed Lots 1 and 2 to Joanne M. Rampello (Joanne), for consideration of less than $100 for each conveyance.
8. By a deed dated June 29, 1995 (the Lot 1 1995 Deed) and recorded in the Registry on June 29, 1995 at Book 2725, Page 190, Joanne conveyed Lot 1 to Donna M. Greene (Greene) and Jeffrey L. Swann (Swann), husband and wife, as tenants by entirety, for $217,500. Joanne continued to own Lot 2.
9. By a deed dated January 19, 1996 and recorded in the Registry on July 8, 1996 at Book 2878, Page 311, Joanne conveyed Lot 2 to Swann, acting as Trustee of JSDG Trust (the Trust), for $35,000.
10. By a deed dated September 9, 1999 (the Lot 2 1999 Deed) and recorded in the Registry on September 10, 1999 at Book 3455, Page 254, the Trust conveyed Lot 2 to Greene and Swann, husband and wife, as tenants by the entirety, for consideration of less than $100.
11. Effective July 10, 2001, and while Lots 1 and 2 were under common ownership by Greene and Swann, the Ordinance was amended. The minimum required area for a buildable lot in the RA District was increased from 12,500 square feet to 21,780 square feet, and the minimum lot frontage requirement was increased from fifty feet to eighty feet (the 2001 Zoning Amendment). These remain the current lot area and frontage requirements, as provided in the Ordinance §22-40, as amended in 2013.
12. Greene passed away on November 16, 2009.
13. By a deed dated March 26, 2012 and recorded in the Registry on March 29, 2012 at Book 7599, Page 138, Swann conveyed Lot 1 to David Steele for $317,000.
14. By a deed dated June 11, 2013 and recorded in the Registry on June 11, 2013 at Book 7928, Page 85, Swann conveyed Lot 2 to GBD for $25,000.
15. On November 26, 2013, GBD filed an application with Plaintiff (the GBDApplication) for a building permit for the construction of a single-family dwelling on Lot 2.
16. On December 13, 2013, Plaintiff sent a letter to GBD by which he denied the GBD Application (the Denial Letter). The Denial Letter stated [y]our building permit application for [Lot 2] has been denied by this department. [Lot 2] is located in the [RA District] which requires 21,780 sq. ft. and according to the [1999 D]eed, only has 19,399 sq. ft. The letter was signed by Plaintiff as the Building Commissioner.
17. GBD appealed the Denial Letter to Plaintiff.
18. On April 4, 2014, in response to GBDs appeal of the Denial Letter, Plaintiff issued a Rejection Notice to GBD for the erection of a building on Lot 2 (the Rejection Notice). The Rejection Notice stated that GBDs appeal was denied because of a [v]iolation of City of Leominster Zoning Ordinance Chapter 22, Article VII, Section 22-40[.] Applicant wishes to build a single family dwelling on this lot. Per zoning required lot size is 21,780 sq. ft. Lot size is 19,399 sq. ft. The Rejection Notice was signed by Plaintiff as the Zoning Enforcement Officer.
19. GBD filed an appeal of the Rejection Notice with the ZBA (the ZBA Appeal). The ZBA Appeal is date-stamped by the City Clerks Office on April 14, 2014 (the ZBA Appeal Date). In its ZBA Appeal filing, GBD checked two paragraphs under which the applicant proposes to bring the matter to the attention of the ZBA:
a. Application is hereby made from the discretionary power vested in your Board for a variation from the requirement of Section 22-40 of the Zoning Ordinance.
b. Appeal is hereby made from the decision of the Building Inspector refusing a building permit, the applicant contending that the proposed construction alteration or use is in conformity with the provisions of the Building Code and/or the Zoning Ordinance.
In response to Paragraph 3 of the ZBA Appeal, which requests the applicant to state the proposed points on which the application or appeal is based, GBD wrote: Existing nonconforming lot. Conformed when it was created 1993.
20. The ZBA opened the public hearing on the ZBA Appeal on June 18, 2014. The hearing was continued to July 16, 2014, and was set to be continued further on August 27, 2014. [Note 4]
21. Pursuant to G.L. c. 40A § 15, [Note 5] GBD filed a document with the City Clerk entitled Notice That Approval Has Been Granted (the Constructive Approval Notice). The Constructive Approval Notice was date-stamped by the City Clerks Office on July 22, 2014. The Constructive Approval Notice asserted that the ZBA had failed to act within one hundred days after the submission of the ZBA Appeal and that the appeal and variance has therefore been deemed granted, requiring the Building Commissioner to issue the building permit.
22. On August 26, 2014, Sharkey submitted a letter to the ZBA that stated: Please allow this letter to serve as withdrawal of the application for appeal for [Lot 2], without prejudice (the Withdrawal Letter).
23. At the ZBAs meeting on August 27, 2014, the ZBA received the Withdrawal Letter and voted, 5-0, to allow the applicant to withdraw the ZBA Appeal without prejudice.
24. The Ordinance (the Non-Vacant Lot Exception) provides in § 22-10, entitled Recorded Lots:
10.1 Any lot or lots of land described in a deed and officially recorded with the registry of deeds may be used for any permitted use in the district in which the lot or lots are located, provided that:
10.1.1 In the case of a nonconforming lot, no adjoining vacant lot is in the same ownership.
. . . .
25. The Ordinance provides in § 22-12, entitled Nonconforming Uses, Structures and Lots:
Nonconforming Lots, Uses, and Structures are regulated as provided in Chapter 40A, Section 6 of the General Laws and as provided in this Ordinance.
12.2 Nonconforming Lots
12.2.1 Notwithstanding the area and frontage requirements hereof, a detached one-familyor two-familyresidential use or lawful building other than a dwelling may be constructed and used on a lot having less than the prescribed basic minimum area and/or minimum frontage, width, yard or depth requirements (provided that all other regulations of this Ordinance are complied with) if said lot, prior to the date of the adoption of the requirements in question was otherwise exempt from such requirements by the provisions of Chapter 40A, Section 6.
I will first address the parties contentions concerning constructive approval. If constructive approval did not occur, there is no need to address the parties arguments concerning whether such constructive approval must be upheld or annulled. If constructive approval occurred, whether such approval is declared to be arbitrary and capricious, legally untenable, or in excess of the ZBAs authority, [Note 6] will require an analysis largely coextensive with the merits of Plaintiffs and GBDs declaratory judgment requests concerning whether GBD is entitled to develop Lot 2 under the state statutory Single-Lot Exception (G.L. c. 40A § 6) or the Non-Vacant Lot Exception of the Ordinance (§ 22-10, ¶¶ 10.1 - 10.1.1). Thus, I reverse the order of the arguments raised by the parties and address constructive approval first.
I. Constructive Approval
GBD claims that it received constructive approval of the GBD Application to build a single- family dwelling on Lot 2 by virtue of the ZBAs failure to act within one hundred days of GBDs filing of the ZBA Appeal. G.L. c. 40A, §15 (Failure by the board to act within said one hundred days . . . shall be deemed to be the grant of the appeal, application or petition.). Plaintiff asserts that GBD is not entitled to constructive approval because it filed the required notice prematurely, before the expiration of the one hundred days set forth in G.L. c. 40A § 15. GBD responds [Note 7] that its early filing should be excused because it did not prejudice the ZBA and had de minimis effect (if any) because the Constructive Approval Notice actually provided the ZBA with early notice of GBDs intent to seek constructive approval and the ZBA could have still acted on GBDs appeal within the one day remaining, yet did not.
There is no doubt that GBD failed to await the lapse of the one hundred days before filing its Notice of Constructive Approval. [Note 8] Under G.L. c. 40A § 15, such notice is required to be filed between one and fourteen days after the expiration of the one hundred days from the date of filing an appeal with the ZBA. Here, because GBDs ZBA Appeal was filed and date stamped by the City Clerks Office on April 14, 2014, the one hundredth day would have been July 23, 2014. Thus, GBD would have had from July 24, 2014 to August 6, 2014 to file its Notice of Constructive Approval. Instead, GBD filed early, on July 22, 2015 the ninety-ninth day of the ZBAs statutory review period. The only question is whether GBDs failure to comply strictly with the time requirements of G.L. c. 40A § 15 is excusable.
The purpose of the constructive approval provisions of the statute, together with the requirement that the board make its decision within a set period of time, is to induce the board to act promptly on appeals. Board of Aldermen of Newton v. Maniace, 429 Mass. 726 , 729 (1999) [Note 9] (citing Capone v. Zoning Bd. of Appeals of Fitchburg, 389 Mass. 617 , 623 (1983)). If not, the applicant prevails by default. Id. Thus the statute takes aim at boards that fail to timely act and promotes the interests of applicants in prompt decisions and avoidance of stalemate by board inaction. But a constructive grant is also a heavy penalty to the board. See id. Thus, the Appeals Court, addressing the fourteen-day requirement for filing a notice of constructive approval, has strictly construed the timing provision and found compliance to be mandatory for private-party applicants. Uglietta v. City Clerk of Somerville, 32 Mass. App. Ct. 742 , 744-45 (1992). [Note 10]
In Uglietta, the board held a public hearing on January 6, 1988 on an application to construct 110 dwelling units on the applicants property, but never rendered or filed a decision with respect to the application. 32 Mass. App. Ct. at 742-43. On June 14, 1989 525 days after the public hearing the applicant filed a notice with the city clerk that the special permit had been constructively granted. Id. at 743.
In construing the provision requiring the applicant to file its notice within fourteen days from the expiration of said ninety days the Appeals Court noted that
the fourteen-day requirement here involved is directed at a private partythe applicant for a special permit. There is an essential difference between statutory directions to public officers and to private persons. . . . Where a [private partys] rights depend upon his compliance with the provisions of a statute, those provisions are generally mandatory, and compliance therewith a condition precedent to the perfection of such rights.
Id. (quoting 2A Sands, Sutherland Statutory Construction § 57.15). Additionally, the Appeals Court recognized that the 1987 amendments to G.L. c. 40A § 9 and § 15 that added the timing provisions at issue established precise guidelines for all who might be involved or directly interested in the consequences of a constructively granted variance or special permit. Id. at 746. To vindicate the salutary objectives of minimizing confusion to attorneys and others concerned with the law relating to land use, and limit[ing] the period during which an appeal may be taken, the Appeals Court gave the timing provision a strict and mandatory construction. Id. (internal quotation marks and citations omitted). This result avoids causing uncertainty about when a potential challenger may initiate an appeal and prevents the beneficiary of the grant from controlling the appeal period by the timing of his notice. Id.
The holding and persuasive reasoning in Uglietta applies equally to this case of early filing. While it is true that the ZBA did not file its decision within the one hundred-day period required by G.L. c. 40A § 15, GBD was mandated by that same statute to file its Notice of Constructive Approval one to fourteen days after the expiration of the one hundred-day period in order perfect its right to constructive approval. Uglietta, 32 Mass. App. Ct. at 745-47. Furthermore, strict adherence to the precise guidelines provided by the Legislature serves the salutary purpose of avoiding considerable uncertainty among applicants and challengers regarding how to implement or appeal such constructive permit grants. See id. at 746. Excusing an early filing just like allowing a late filing in Uglietta would frustrate these legislative goals because it would cause uncertainty as to when to initiate an appeal and leave control of the timing of that appeal period in the hands of the beneficiary of the grant. See id. at 746; see also Hughes v. Moriarty, 14 LCR 324 , 326 (2006) (Misc. Case No. 292574) (Scheier, J.) (declaring that no constructive approval occurred where applicant filed notice of constructive approval prematurely, which left uncertainty among potential challengers).
Although strict adherence to the statutory timing provisions is required, and thus whether or not the ZBA was prejudiced by the early filing is immaterial, I do not agree with GBD that no person was prejudiced. GBDs prejudice argument appears to originate from Girard v. Board of Appeals of Easton, which was decided before the amendments to G.L. c. 40A § 9 and § 15 that added the timing provisions now at issue, [Note 11] and reasoned that when statutes fix a certain time after a procedural event for taking action, the action may be taken before the event. Early action when the underlying facts giving ground to the action are known works no prejudice to the adverse party . . . . 14 Mass. App. Ct. 334 , 337-38 (1982). [Note 12] However, even if its reasoning survived the statutory amendments, the Girard case nevertheless recognizes a distinction between early action, which works no prejudice to the adverse party, and premature action, which results in a loss of valuable rights ... because [something] was done too soon. Id. at 338 (quoting Becton, Dickinson & Co. v. State Tax Commn, 374 Mass. 230 , 234 (1978)).
Here, and significant in this case, the filing of the Constructive Approval Notice was premature (resulting in the loss of valuable rights) and not simply early, not only because it purported to take one day of consideration away from the ZBA, but also because it misinformed the parties in interest to GBDs Application and ZBA Appeal of the correct twenty-day appeal time period. Under G.L. c. 40A § 15, the twenty-day appeal period for interested parties is pegged to the date that the City Clerks Office receives the written notice of constructive approval. G.L. c. 40A § 15 (The petitioner shall send such notice to parties in interest, by mail and each notice shall specify that appeals, if any, shall be made pursuant to section seventeen and shall be filed within twenty days after the date the city or town clerk received such written notice from the petitioner that the board failed to act within the time prescribed. (emphasis added)). Thus the required notice sent to interested parties regarding the ZBA Appeal misinformed them that the twenty-day appeal period ended one to fourteen days sooner than it should have ended had GBD properly complied with the fourteen-day requirement. It is not only the ZBA who must be considered in evaluating prejudice, it is also the parties in interest, who in this circumstance, suffered a loss of valuable rights the right to be correctly informed of the proper twenty-day appeal period and make a timely appeal based on that information because [something] was done too soon. Id. at 338 (internal quotation marks omitted).
As a result of the foregoing, I find that the ZBA Appeal was not constructively granted and the GBD Application was not constructively approved because GBD did not adhere to the mandatory timing provisions in particular the fourteen-day notice requirement of the constructive approval provision of G.L. c. 40A § 15. [Note 13] Because strict adherence to the timing provisions is mandated by the plain language of the statute and essential to vindicate the salutary legislative objectives identified in Uglietta, 32 Mass. App. Ct. at 744-46, whether any person was prejudiced by GBDs premature filing is of no moment. Even if relevant to the analysis, GBDs premature filing prejudiced the parties in interest by misinforming them of the proper twenty-day appeal period.
II. Entitlement to a Building Permit
I next turn to the parties arguments concerning whether Lot 2 is a buildable non-conforming lot because it meets the state statutory Single-Lot Exception or the Non-Vacant Lot Exception of the Ordinance. [Note 14]
It is undisputed that, today, Lot 2 does not meet the minimum lot area requirement of 21,780 square feet or the minimum lot frontage requirement of eighty feet applicable in the RA District because Lot 2 only has a lot area of 19,399 square feet and a frontage of 67.9 feet. However, at the time of its creation by subdivision in 1993, Lot 2 did meet the then in-effect minimum area and minimum frontage requirements in the RA District, which at that time only required 12,500 square feet of area and fifty feet of frontage. Those minimum area and minimum frontage requirements were increased by the 2001 Zoning Amendment. Thus, GBD would be able to build on Lot 2 only if Lot 2 were entitled to grandfathered protection as a pre-existing non-conforming lot under either the state statutory Single-Lot Exception (G.L. c. 40A § 6) or the Non-Vacant Lot Exception (§ 22-10, 10.1 - 10.1.1) of the Ordinance, which GBD claims is more permissive that the state statute.
A. State Statutory Single-Lot Exception
The Single-Lot Exception in G.L. c. 40A, §6, ¶ 4 provides that:
[a]ny 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 requirement but at least five thousand square feet of area and fifty feet of frontage.
The Single-Lot Exception thus exempts single or two-family residential lots that conform to existing zoning requirements as well as certain minimum standards, from application of subsequently-enacted zoning amendments that make such requirements more onerous, so long as the lot was not held in common ownership with any adjoining land.
Here, Lot 2 did conform to the existing zoning requirements before the 2001 Zoning Amendment, and it meets the additional minimum requirements of the Single-Lot Exception because it has over 5,000 square feet of area and at least fifty feet of frontage.
However, Lot 2 loses the statutory protection of the Single-Lot Exception because Lot 2 was in common ownership with an adjoining lot just prior to the 2001 Zoning Amendment. To determine whether Lot 2 was under common ownership with an adjoining lot at the time of recording or endorsement, the court looks to the date of the most recent instrument of record prior to the effective date of the zoning change. Adamowicz v. Ipswich, 395 Mass. 757 , 763 (1985). The most recent instrument of record relative to Lot 2 prior to the 2001 Zoning Amendment was the Lot 2 1999 Deed. The Lot 2 1999 Deed evidences that Lot 2 was owned jointly by Greene and Swann as tenants by the entirety. Additionally, the adjoining Lot 1 was owned also by Greene and Swann as tenants by the entirety, pursuant to the Lot 1 1995 Deed.
Because both adjoining Lots 1 and 2 were held in common ownership by Greene and Swann at the time of recording or endorsement, I find that Lot 2, which does not meet the minimum lot area and frontage requirements of the Ordinance, does not qualify for grandfather protection pursuant to the Single Lot Exception under G.L. c. 40A § 6, ¶ 4. [Note 15]
B. Non-Vacant Lot Exception of the Ordinance
GBD argues that the Non-Vacant Lot Exception of the Ordinance provides a more lenient grandfather provision for nonconforming lots than the state statute. A local zoning ordinance may expressly provide a more generous grandfather provision allowing development of nonconforming lots than provided by G.L. c. 40A § 6. Marinelli v. Bd. of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005) ([I]f a municipal zoning code purports to establish more generous grandfather provisions than those contained in [G.L. c. 40A] § 6, it must do so expressly.). However, an intention to provide a more generous grandfather provision must be clear from the language used in the Ordinance. Carabetta v. Bd. of Appeals of Truro, 73 Mass. App. Ct. 266 , 268-69 ([W]hile a town may choose to adopt a more liberal grandfather provision, it must do so with clear language.).
The Non-Vacant Lot Exception plainly is different from the Single-Lot Exception found in G.L. c. 40A § 6, and provides a more expansive grandfather provision for certain nonconforming lots. It provides for any nonconforming lots that are described in a deed and officially recorded, to be used for any permitted use in the district so long as no adjoining vacant lot is in the same ownership. Ordinance § 22-10, ¶¶ 10.1 - 10.1.1. The Single-Lot Exception, on the other hand, only grandfathers lots for single and two-family residential use, when such lots were not held in common ownership with any adjoining land at the time of recording or endorsement. G.L. c. 40A § 6. Thus the Non-Vacant Lot Exception provides two major expansions from the Single-Lot Exception: (1) a lot may be grandfathered even if it is not for single or two-family residential use; and (2) a lot may be grandfathered even when an adjoining lot is in common ownership, so long as that adjoining lot is not vacant. I thus find that the Non-Vacant Lot Exception, expressly, and by its plain terms, establishes a more generous grandfather provision than G.L. c. 40A § 6.
Plaintiff argues that the Non-Vacant Lot Exception in the Ordinance should not be construed as a more generous grandfather provision than the Single-Lot Exception because the intent of the Ordinance is to follow the principles of G.L. c. 40A § 6. Plaintiff highlights three portions of Section 22-12 of the Ordinance to support this argument: (1) Paragraph 12.1, entitled Overview, which provides that Nonconforming Lots, Uses, and Structures are regulated as provided in Chapter 40A, Section 6; (2) Paragraph 12.2.1, which provides that
Notwithstanding the area and frontage requirements hereof, a detached one-family or two-family residential use or lawful building other than a dwelling may be constructed and used on a lot having less than the prescribed basic minimum area and/or minimum frontage, width, yard or depth requirements (provided that all other regulations of this Ordinance are complied with) if said lot, prior to the date of the adoption of the requirements in question was otherwise exempt from such requirements by the provisions of Chapter 40A, Section 6;
and, (3) Paragraph 12.2.2, which provides that [s]uch a nonconforming lot may not be further reduced in area or frontage, and if it is subsequently combined with other land in such a way as to reduce or eliminate the non-conformity, it may not again be subdivided except in accord with this Ordinance.
I do not find Plaintiffs intent argument persuasive. First, the Overview provision of Paragraph 12.1 is essentially non-substantive and stops short of incorporating the Single-Lot Exception in any way that would create a direct conflict with or ambiguity in the language of the separate and distinct Non-Vacant Lot Exception found earlier in the Ordinance. Simply because nonconforming lots, uses, and structures are regulated as provided in G.L. c. 40A § 6 which has several additional provisions governing nonconforming structures and uses, and zoning freezes for subdivision plans does not prevent the drafters of the Ordinance from providing additional and/or more generous grandfather protections in certain instances. Second, and as further proof of that point, Paragraph 12.2.1, by its own terms and despite referencing the exact provision of the state statute, expands grandfather protection beyond the state statutory Single-Lot Exception which is restricted to a lot for single and two-family residential use to allow construction of a detached one-family or two-familyresidential use or lawful building other than a dwelling on nonconforming lots. Plaintiff acknowledges this expansion of grandfather protection by the Ordinance in its brief. Thus the drafters of the Ordinance felt free to expand grandfather protection in this instance as well, even when directly referencing G.L. c. 40A § 6. Third, Paragraph 12.2.2 also does not support Plaintiffs argument because, by its own terms, it only applies to a nonconforming lot if it is subsequently combined with other land. The point is that where the Non-Vacant Lot Exception applies, the nonconforming lot does not combine with other land. See further discussion concerning the common-law merger doctrine, infra. Thus, none of these provisions evidence an intent by the Ordinance drafters to strictly adhere only to the provisions of G.L. c. 40A § 6, nor is any of them at odds with granting more generous grandfather protection to certain nonconforming lots as expressed in the separate and distinct Non-Vacant Lot Exception.
At most, Plaintiffs arguments raise an ambiguity among these several provisions in the Ordinance, which Plaintiff argues should be resolved in favor of interpreting the Ordinance provisions in alignment with the more circumscribed applications of G.L. c. 40A § 6. [Note 16] Disputed language of a zoning ordinance is interpreted in accordance with ordinary principles of statutory construction. Framingham Clinic, Inc. v. Zoning Bd. of Appeals of Framingham, 382 Mass. 283 , 290 (1981). However, ordinary principles of statutory construction counsel against interpreting an Ordinance so as to render any of its provisions null, redundant, or superfluous. Devaney v. Town of Watertown, 13 Mass. App. Ct. 927 , 928 (1982) (interpretation of a by-law should be consistent with statutory construction that avoids dismissing parts of statutes as superfluous); see Flemings v. Contributory Ret. Appeal Bd., 431 Mass. 374 , 375-76 (If a sensible construction is available, we shall not construe a statute to make a nullity of pertinent provisions . . . .).
Were this court to read the Ordinance as Plaintiff requests, I would have to either ignore the express language of the Non-Vacant Lot Exception which plainly reads no adjoining vacant lot is in the same ownership instead of not held in common ownership with any adjoining land or read that expressly contrary language as coextensive with the reach of G.L. c. 40A § 6 and thus render the Non-Vacant Lot Exception, entirely redundant. [Note 17] Although I must apply deference to an Plaintiffs interpretation of its own Ordinance, it must be a reasonable interpretation that does not contradict the plain language thereof. Mostyn v. Dep't of Environmental Protection, 83 Mass. App. Ct. 788 , 794 (2013) (An agencys interpretation of its own regulations is entitled to considerable deference and must be upheld unless it is inconsistent with the plain language of the regulation or otherwise arbitrary or unreasonable.). As a result, it would be an unreasonable interpretation of the Ordinance to read the plain words of the Non-Vacant Lot Exception to have no effect.
Turning back to the facts of this case, GBD correctly notes that Lot 2 never had an adjoining vacant lot under the same ownership. Although Lot 1 and Lot 2 came under common ownership when the Lot 2 1999 Deed was recorded, Lot 1 had a building and garage erected thereon, and accordingly was not vacant. Thus, I find that Lot 2 is a buildable lot, even though it does not meet the minimum lot area and frontage requirements of the Ordinance, because Lot 2 does not adjoin a vacant lot in the same ownership, and accordingly is entitled to grandfather protection under the Non-Vacant Lot Exception of the Ordinance, Section 22-10, Paragraphs 10.1 - 10.1.1. [Note 18]
C. Common Law Merger
Plaintiff additionally argues that, notwithstanding the language of the Non-Vacant Lot Exception, GBD may not now build on Lot 2 because, under the doctrine of common law merger, Lot 2 merged with Lot 1 while it was held in common ownership by Greene and Swann at the time of the 2001 Zoning Amendment. 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 , 812 (2009). The purpose of the doctrine is to minimize non-conformities a central goal of zoning laws, generally. Preston v. Bd. of Appeals of Hull, 51 Mass. App. Ct. 236 , 238 (2001); Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987). [Note 19]
However, it is within the legislative power of the city to override the effects of the common-law merger doctrine and allow adjacent nonconforming lots that come into common ownership to be treated as separate lots for zoning purposes. Hoffman, 74 Mass. App. Ct. at 812; Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. 148 , 154 (1981) (municipalities have the authority to preserve legislatively certain substandard lots for building purposes).
Here, the Non-Vacant Lot Exception, does precisely that: it allows development and use of adjacent nonconforming lots that come into common ownership to be treated as separate lots for zoning purposes, Hoffman, 74 Mass. App. Ct. at 812, so long as the adjoining lot is not vacant. The Non-Vacant Lot Exception of the Ordinance thus blocks a nonconforming lot from merging with an adjoining lot in common ownership that is not vacant, precluding the common-law merger doctrine from operating in that circumstance.
Notably, if the doctrine of common law merger were to apply as Plaintiff urges, the language of the Non-Vacant Lot Exception would again be rendered superfluous because any adjoining lots vacant or not in common ownership would become a single lot for zoning purposes by operation of the doctrine. The word vacant would be read out of the Ordinance language entirely because the doctrine does not distinguish between vacant or developed lots. Holding that the common-law merger doctrine operates in these circumstances would nullify the express language and intent of the Non-Vacant Lot Exception, which allows a recorded lot to be used for any permitted use as long as it is not in common ownership with a vacant lot and has at least 5,000 square feet of area and fifty feet of frontage.
As a result of the foregoing analyses, I find that Lot 2 is protected from common law merger by the Non-Vacant Lot Exception of the Ordinance, and as a result Lot 1 and Lot 2 never merged. [Note 20] Because the Non-Vacant Lot Exception permits development of Lot 2 for any permitted use in the district, I find that it was arbitrary and capricious, and legally untenable for Plaintiff to reject the building permit application for Lot 2.
Although GBDs Summary Judgment Motion and Memorandum fail to develop the contention, GBD raises an estoppel argument through the Sharkey Affidavit and in its oral argument before the court at the Summary Judgment Hearing. GBD asserts that the actions of Plaintiff, a municipal official, estop Plaintiff from denying the building permit because GBD detrimentally relied on Plaintiffs assurance that Lot 2 was buildable by purchasing Lot 2 and investing in municipal services related to the development of Lot 2.
Even where detrimental reliance occurs, however, the courts are reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest. OBlenes v. Zoniong Bd. of Appeals of Lynn, 397 Mass. 555 , 558 (1986); see also Racette v. Zoning Bd. of Appeals of Gardner, 27 Mass. App. Ct. 617 , 620 (1989).
Because I find that Lot 2 is a buildable lot pursuant to the grandfather protection afforded by the Non-Vacant Lot exception of the Ordinance and that rejection of the GBD Application by Plaintiff was legally untenable, I need not determine if Plaintiff is estopped from denying the building permit. I accordingly do not reach this argument.
Plaintiff also moves for summary judgment declaring that GBD is not entitled to a variance because it has presented no evidence to show that Lot 2 meets the stringent requirements for a variance set forth in G.L. c. 40A § 10. As part of its ZBA Appeal, GBD sought a variance from the current minimum-lot-area requirement of the Ordinance to allow Lot 2 to be developed.
An applicant for a variance bears the burden of proving that all prerequisites for the issuance of a variance set forth under G.L. c. 40A, §10 have been satisfied. The statutory criteria for a variance set out in G.L. c. 40A, §10 are demanding and variances are difficult to obtain. Mendes v. Bd. Appeals of Barnstable, 28 Mass. App. Ct. 527 , 531 (1990). Unless the owners hardship relates to soil conditions, shape, or topography of the land, a variance cannot lawfully be granted. G.L. c. 40A, §10; see, e.g., Tsagronis v. Bd. of Appeals of Wareham, 415 Mass. 329 , 331332 (1992); Bertrand v. Bd. Of Appeals Of Bourne, 58 Mass. App. Ct. 912 (2003). Infirmities in the size of a lot do not qualify as a hardship arising from the shape of the land, as required for the grant of a variance. Mitchell v. Bd. of Appeals of Revere, 27 Mass. App. Ct. 1119 (1989); Tsagronis, 415 Mass. at 332 n. 6.
Other than failing to meet the current zoning dimensional requirements for minimum lot area and minimum frontage which infirmities do not satisfy the criteria necessary for granting a variance GBD provides no evidence to show its entitlement to a variance under G.L. c. 40A, §10. [Note 21] Thus, even if a constructive approval of the variance occurred (which I find it did not), that approval would be legally untenable, arbitrary and capricious, and in excess of the ZBAs authority under G.L. c. 40A, §10. Mitchell, 27 Mass. App. Ct. 1119 ; Tsagronis, 415 Mass. at 332 n. 6.
As a result of the foregoing, the Plaintiffs Motion for Summary Judgment is hereby ALLOWED in part and DENIED in part, consistent with the above findings. GBDs Cross-Motion for Summary Judgment is hereby ALLOWED in part and DENIED in part, consistent with the above findings.
Judgment to issue accordingly.
[Note 1] It appears that GBDs appeal of the GBD Application denial also included a request for a variance (as hereinafter discussed).
[Note 2] On February 23, 2015, a status conference was held where counsel for the ZBA stated it was not taking an active role in this litigation.
[Note 3] Because there are two persons involved with the West Street Parcel with the last name Rampello, for ease of recognition (and not for lack of formality), each person will be referred to by their first name.
[Note 4] Plaintiff has contested whether GBDs representatives agreed to continue the hearing to August 27, 2014. However, the statute and supporting case law indicates that an extension may be made only by written agreement between the applicant and the board of appeals, and that a copy of such agreement shall be filed in the office of the city or town clerk. G.L. c. 40A § 15; see, e.g., Craig v. Planning Bd. Of Haverhill, 64 Mass. App. Ct. 677 , 680 (2005) (applicants agreement to an extension as shown in the minutes of the board meeting filed with the town clerk does not satisfy the requirement to file a written notice of extension and thus does not actually extend the constructive approval deadline). Plaintiff has presented no evidence of a written extension agreement filed with the City Clerks Office. Thus, this is not a material fact in dispute.
[Note 5] G.L. c. 40A, §15 states in pertinent part:
The decision of the board shall be made within one hundred days after the date of the filing of an appeal, application or petition, except in regard to special permits, as provided for in section nine. The required time limits for a public hearing and said action, may be extended by written agreement between the applicant and the board of appeals. A copy of such agreement shall be filed in the office of the city or town clerk. Failure by the board to act within said one hundred days or extended time, if applicable, shall be deemed to be the grant of the appeal, application or petition. The petitioner who seeks such approval by reason of the failure of the board to act within the time prescribed shall notify the city or town clerk, in writing, within fourteen days from the expiration of said one hundred days or extended time, if applicable, of such approval and that notice has been sent by the petitioner to parties in interest.
[Note 6] Judicial review of the merits of a constructive approval is coextensive with the standard set forth in G.L. c. 40A § 17, and thus a constructive approval will be annulled if such approval is arbitrary, capricious, legally untenable, or in excess of the ZBAs authority. See Girard v. Bd. of Appeals of Easton, 14 Mass. App. Ct. 334 , 337 (1982).
[Note 7] GBDs opposition and cross-motion did not acknowledge the timing mistake. However, in oral argument at the Summary Judgment Hearing, GBD raised the above argument.
[Note 8] There is no indication that the premature filing was a product of bad faith and instead was likely the result of a clerical error. Indeed, the Notice of Constructive Approval recites that GBDs ZBA Appeal was filed on April 7, 2014, when in fact the evidence shows that the City Clerks Office did not receive and date stamp the ZBA Appeal until April 14, 2014. Had the ZBA Appeal actually been received on April 7, 2014, as claimed, the Notice of Constructive Approval would have been correctly timed for arrival at the City Clerks Office after the lapse of the 100 days required by statute.
[Note 9] The Board of Aldermen of Newton case concerns the substantially identical constructive grant provisions of G.L. c. 40A § 9, which provides in pertinent part that
The decision of the special permit granting authority shall be made within ninety days following the date of such public hearing. . . . Failure by the special permit granting authority to take final action within said ninety days or extended time, if applicable, shall be deemed to be a grant of the special permit.
The only substantive differences between G.L. c. 40A § 9 and § 15 are that, under § 9, a decision must be rendered within ninety days of public hearing, and under § 15, a decision must be rendered within one hundred days after the date of the filing of an appeal.
[Note 10] Uglietta again concerns the substantially identical constructive grant provisions of G.L. c. 40A § 9. See supra note 9. However, the Uglietta case makes clear that the timing provisions of G.L. c. 40A § 9 and § 15 at issue were enacted by the Legislature together in 1987 to serve a common purpose in addressing the notoriously confused text of the prior statutoryconstructive approval provisions, which often left applicants and challengers uncertain about when a constructive approval had occurred and could be appealed. Uglietta, 32 Mass. App. Ct. at 746.
[Note 11] The Girard case was decided before the 1987 amendments to G.L. c. 40A § 9 and § 15 that added the specific timing guidelines at issue here, and thus the applicability of that cases prejudice analysis concerning early action taken on a purported constructive approval is suspect. See Hughes, 14 LCR at 326 n.7 (Misc. Case No. 292574) (Scheier, J.).
[Note 12] The Girard case dealt with the fact that a challenger-abutter had filed an action seeking to annul a constructively granted variance pursuant to G.L. c. 40A § 17 before the grantee or ZBA had acted upon the constructive grant by filing a decision with the Town Clerk. It was the grantee and ZBA who alleged the abutter had acted prematurely in bring its challenge. The Appeals Court observed that underlying facts giving ground to the action were known and worked no prejudice to the adverse parties, and thus concluded that a party may seasonably file a complaint seeking judicial review of a constructively granted variance or special permit before a copy of the decision has been filed with the city or town clerk. 14 Mass. App. Ct. at 337-38.
[Note 13] Plaintiff contends that GBD cannot validly claim constructive grant of the ZBA Appeal where the ZBA Appeal was withdrawn on GBDs own volition a month after the issuance of the Constructive Approval Notice. However, Plaintiff offers noevidence or authority for its argument that GBD cannot validly claim constructive approval in such a circumstance. If constructive approval occurred, it may have been appropriate for GBD to withdraw the ZBA Appeal, presuming GBD otherwise satisfied the remaining requirements of G.L. c. 40A § 15 to perfect the constructive approval. These facts, however, are not before me. In any event, because I find that the ZBA Appeal was not constructively granted, I need not resolve this question.
[Note 14] As noted supra and at note 6, even if GBD validly perfected a constructive approval, that approval would be subject to the same judicial review standards under G.L. c. 40A §17 to determine whether facts exist which would have enabled the board to grant relief that is neither arbitrary or capricious, nor beyond their authority. Girard, 14 Mass. App. Ct. at 337. Thus, the issues analyzed and decided in this section would apply to Plaintiffs and GBDs arguments concerning the substantive validity of the constructive approval, had I determined that GBDs building permit was constructively approved.
[Note 15] G.L. c. 40A § 6 also contains an exemption that [a]ny increase in area, frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date ... to a lot for single and two familyresidential use, provided [that] ... such lot was held in common ownership with anyadjoining land and conformed to the existing zoning requirements as of [January 1, 1976] ... provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership. Under this provision, Greene and Swann could have built on Lot 2 within five years; however, they did not exercise that option.
[Note 16] Counsel for Plaintiff argued that the Ordinance was ambiguous only by virtue of reading it in conjunction with the above cited Paragraphs of Section 22-12, and nearly conceded at the Summary Judgment Hearing that the Non-Vacant Lot Exception, read alone, would permit development when he stated that there is a very strong case that Lot 2 would be buildable if Paragraph 12.1 was not present.
[Note 17] Plaintiffs counsel conceded, as he must, that under Plaintiffs interpretation thereof, the Non-Vacant Lot Exception would be rendered redundant.
[Note 18] It is helpful in understanding the application of the Non-Vacant Lot Exception to consider a hypothetical set of facts: If at the time of the 2001 Zoning Amendment, Lot 1, also owned by Greene and Swann, had fewer than 21,780 square feet of area and thus became a nonconforming lot by virtue of the increase in zoning dimensional requirements, then Greene and Swann would not be able to claim the grandfather protection provided by the Non- Vacant Lot Exception of the Ordinance. That is because Lot 1 would be held, at that moment, in common ownership with the vacant Lot 2, and thus would be ineligible for the additional grandfather protection afforded.
[Note 19] In addition, selling the lot, if it had merged, would recreate a non-conformity, an action that is prohibited bythe same doctrine. Hoffman, 74 Mass. App. Ct. at 812 (A person owning adjoining record lots maynot artificially divide them so as to restore old record boundaries to obtain a grandfather nonconforming exemption . . . . (quoting Asack v. Bd. of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999)); Carabetta, 73 Mass. App. Ct. at 271 (2008) (no existing lot can be separated to resurrect a nonconformity).
[Note 20] GBD also argues that common law merger did not occur because the owners intended the lots to be separate, as identified on the 1993 Plan, and because the City of Leominster intended the same, as evidenced by its assessment of each lot separately for taxes. Although earlier case law discussing the application of the common-law merger doctrine mentioned the concept of adjoining lots maintaining their separate identities, no such exception to common law merger exists. See Hoffman, 74 Mass. App. Ct. at 812 (Although we have previously suggested that lots that retain their separate identities may not be subject to the common-law merger doctrine, see Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266 , 270-271 & n. 9 (2008) (suggesting this possibility but ultimately reserving the question), we have been provided in this case with no authority that would support such a rule.)
Moreover, the manner in which a parcel is assessed does not control what constitutes a lot for zoning purposes. Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286 (1979) (Nothing in G.L. c. 40A substitutes the board of assessors for the zoning administrator or board of appeals of a municipality as the administrator of its zoning code.); see also Miller v. Bd. of Appeals of Brookline, 356 Mass. 659 , 661-62 (1970) (although assigned three different lot numbers in assessors atlas, parcel was properly treated as one lot by the board of appeals).
[Note 21] When asked about entitlement to a variance at the Summary Judgment Hearing, counsel for GBD stated that he has not argued the issue in his papers, that the grounds for obtaining a variance are difficult to meet, that GBD withdrew the request for the variance by virtue of its Withdrawal Letter, and that GBD moves for summary judgment, not on the basis of entitlement to a variance, but on the basis of the Non-Vacant Lot Exception of the Ordinance. I thus deem GBDs argument for a variance waived.