PETER NIALL, in his capacity as CITY OF LEOMINSTER DIRECTOR OF INSPECTION AND BUILDING COMMISSIONER vs. GUARANTEED BUILDERS & DEVELOPERS, INC., and MICHAEL CICCOLINI, STEPHEN DeCAROLIS, ROBERT FITZPATRICK, PAUL ROMANO, SCOTT SIMPSON and JOSEPH TOCCI, as they are members of LEOMINSTER ZONING BOARD OF APPEALS.

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 GBD’s 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 ZBA’s 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 summaryjudgment in his favor on all counts of the Complaint. Plaintiff’s 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 ZBA’s authority.

On May 29, 2015, GBD filed an Opposition to Plaintiff’s Motion for Summary Judgment and a Cross-Motionfor Summary Judgment, including a supporting memorandum, statement ofadditional facts, and appendixwithexhibits, 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 GBD’s 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 GBD’s Opposition to Plaintiff’s Motion for Summary Judgment and GBD’s Cross-Motion for Summary Judgment, a response to GBD’s 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.

The court has issued a decision (the “Decision”) as of today’s date. In accordance with the Decision, it is hereby:

ORDERED and ADJUDGED 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; and

ORDERED and ADJUDGED 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; and

ORDERED and ADJUDGED that the Non-Vacant Lot Exception, expressly, and by its plain terms, establishes a more generous grandfather provision than G.L. c. 40A § 6

ORDERED and ADJUDGED 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; and

ORDERED and ADJUDGED 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; and

ORDERED and ADJUDGED that it was arbitrary and capricious, and legally untenable for Plaintiff to reject the building permit application for Lot 2; and

ORDERED and ADJUDGED that the Plaintiff’s Motion for Summary Judgment is hereby ALLOWED in part and DENIED in part, consistent with the above findings; and

ORDERED and ADJUDGED that the GBD’s Cross-Motion for Summary Judgment is hereby ALLOWED in part and DENIED in part, consistent with the above findings.

By the court.