WILLIAM A. BRUNO and LYNNE BRUNO, Trustees fo the W.A.B. REALTY TRUST and L.B. REALTY TRUST v. JEFFREY KRISTAL, ANTHONY HOLAND, SUSAN FAIRBANKS, MICHAEL CIANCIO, NEAL STILLER, FRANK PICCIONE, and JOHN GUADAGNO, as they are Members of the TOWN OF TISBURY ZONING BOARD OF APPEALS; and SAMUEL GOETHALS and MARY GOETHALS, as they are Trustees of the GOETHALS FAMILY TRUST.

I. INTRODUCTION

The plaintiffs, William and Lynne Bruno [Note 1] (“Brunos”), are appealing a decision by the Tisbury Zoning Board of Appeals (“Board”), whose members are defendants. In its decision, the Board, considering an administrative appeal brought by the Brunos, declined to overturn the decision made by the Town of Tisbury (“Town” or “Tisbury”) Zoning Enforcement Officer (“ZEO”) not to enforce claimed violations of the Tisbury Zoning Bylaw (“Bylaw”) on the property owned by defendants Samuel and Mary Goethals [Note 2] (“Goethals”).

The Brunos, in requesting Tisbury’s ZEO to enforce the Bylaw, claimed that the Goethals residence violates the Bylaw because the size of the lot, Lot 1, is too small to meet the requirements of the zoning district in which Lot 1 is located. The Brunos also asserted that the Goethals engaged in renovations without a building permit and improperly changed the use of the structure on Lot 1 from a “guest house” to a “single family residence” without a special permit or variance. The reasoning of both the ZEO and the Board, in declining to enforce the zoning Bylaw, was that, although the Goethels were, at least in certain respects, in clear violation of the local zoning law, the statute of limitations set out in G.L. c. 40A § 7 had run, barring enforcement.

II. PROCEDURAL HISTORY

The Brunos, representing themselves, filed this appeal in this court May 2, 2014. On May 6, 2014 the court issued an order for the plaintiffs to appear on May 29, 2014 for the purpose of reviewing both subject matter jurisdiction and why the case ought not be dismissed because the plaintiffs, as trustees of the Bruno trusts, were not represented by counsel. [Note 3] Counsel for defendant Mary Goethals, Trustee of the Goethal Family Trust (“Goethal Trust”) filed on May 27, 2014 a motion to dismiss the complaint.

On May 29, 2014, counsel for the plaintiff trustees appeared, making moot the issue of the trustees’ lack of legal representation. After a hearing addressed to the jurisdictional questions raised by the court, the court instructed plaintiffs to file an amended complaint removing all counts outside of this court’s subject matter jurisdiction. The initial complaint, filed by plaintiffs without the benefit of counsel, was of considerable breadth and inconsistent with the provisions of the rules governing pleadings. The court ordered that the amended complaint “be recast as a conventional judicial appeal fron the Board’s decision, see G.L. c. 40A, §17, and to comply with Mass. R. Civ. P. 8(a)(1)’s requirement of ‘a short and plain statement of the claim’.” Plaintiffs filed their amended complaint June 13, 2014. The case has proceeded here as a conventional G.L. c. 40A, §17 appeal from the Board’s decision.

Counsel for all parties participated in a case management conference by telephone on June 26, 2014. The court instructed the parties to complete discovery by November 30, 2014, and to file any dispositive motions by December 31, 2014. Both parties at that time indicated their intention to file motions for summary judgment. Plaintiffs filed their motion on January 7, 2015. The Goethals filed their opposition to plaintiffs’ motion for summary judgment, and a cross motion for summary judgment, on January 30, 2015. On February 2, 2015, the Board members filed a limited opposition to plaintiffs’ motion for summary judgment. On March 2, 2015, plaintiffs filed a response to both the Tisbury and Goethels oppositions, and an opposition to the Goethels’ cross-motion for summary judgement. On April 10, 2015, the Goethels filed a response to plaintiffs’ opposition to their cross-motion for summary judgment.

The court held a summary judgment hearing April 29, 2015. At the hearing, the court raised the certain issues with counsel: [Note 4] (1) the effect, if any, of the recent Palitz v. Zoning Bd. of Appeals of Tisbury decision, (2) the application, if any, of the doctrine of infectious invalidity to this case, and (3) whether equitable considerations beyond the various statutes of limitations should bar plaintiffs’ efforts to obtain the enforcement they seek. Supplemental briefs responding to these three issues were filed. The court later issued an order to plaintiffs that they verify the court’s subject matter jurisdiction by showing compliance with the notice and filing requirements of G.L. c. 40A, Section 17. Plaintiffs filed proof of compliance on April 15, 2016. I now rule on the summary judgment motions and decide the case.

III. FACTS

1. The Goethals family purchased a parcel of real property (“Original Lot”) in Tisbury with a single family residence on it on at some point in the 1920's. The Original Lot later was divided into the lots currently owned by the private parties, Lot 1 and Lot 2.

2. A single garage was constructed on the Original Lot prior to 1960.

3. Until 1978, the garage and the main house were the only two structures on the Original Lot.

4. George and Natalie Goethels recorded a trust document with the Registry on July 10, 1974, and the property was held by the trustees of the Goethals Family Trust (“Goethals Trust”).

5. Tisbury adopted prior to 1978 town-wide zoning that applied to the Original Lot.

6. On March 1, 1978 the Board held a hearing in which George Goethals, trustee of the Goethels Trust, requested a special permit to build a guest house on the Original Lot.

7. The Board granted the requested special permit as reflected in a filing made with the Town Clerk of Tisbury on March 8, 1978.

8. In support of this permit was a letter from the Chairman of the Town of Tisbury Plan Review Committee, stating that the site had been inspected and the architect’s plans had been reviewed.

9. On May 8, 1978 the Town issued a building permit to build a “year-round guest house” with one bedroom, one kitchen, one bathroom a living/dining room, and a storage loft. The guest house was to be “+/- 850 SF.”

10. In or around 1986 additional work was done to the guest house, adding two bedrooms, one bathroom, one sitting room, and two storage areas to the second floor of the guest house, bringing the habitable area of the guest house to around 1,500 square feet.

11. No building permit has been located that gave the Goethals permission to carry out this work in or around 1986.

12. This 1986 renovation was followed by subsequent interior renovations, but none resulted in exterior expansion of the guest house.

13. On December 10, 2001, the trustees of the Goethals Trust applied to the Tisbury Planning Board for endorsement of a plan (“ANR plan”) showing division of the Original Lot as “approval under the subdivision control law not required” pursuant to G.L. c. 41 § 81P. Minutes of the proceedings by the Planning Board when it considered this request at its meeting on December 19, 2001 make clear that the ANR plan was presented to the Planning Board for endorsement as not requiring subdivision approval on the grounds that the subdivision control law “allows applicants to place their building on separate lots, regardless of the Zoning District’s minimum requirements for frontage, land area or depth, if the structures existed prior to the adoption of the Town’s Subdivision Rules and Regulations.” This presentation by the Goethals’ surveyor signifies that the ANR plan was put before the Planning Board for its endorsement in reliance on the provisions of § 81L of the subdivision control law.

14. The Tisbury Planning Board endorsed the ANR plan on December 19, 2001. The Planning Board minutes reflect that it made the endorsement based on G.L. c. 41, §81L. The ANR plan later was recorded in the Registry on September 9, 2005, in Plan Book 15, Page 48.

15. The ANR plan shows a division of the Original Lot into two separate adjoining lots. Lot 1 includes what is now the Goethals house, and approximately 12,350 square feet of land. Lot 2 includes what is now the Bruno house and approximately 32,200 square feet of land.

16. Lot 1 on the plan did not conform to the Bylaw as to size or frontage when the Planning Board endorsed the Goethals ANR plan in 2001.

17. When it considered the request to endorse the ANR plan, the Planning Board concluded that the guest house stood on the same footprint as the former garage, which had existed there prior to 1960.

18. Following endorsement by the Planning Board of the ANR plan, from December, 2001 until August, 2005, the trustees of Goethals Trust held title to both lots shown on the ANR plan, Lot 1 and Lot 2.

19. By deed dated August 17, 2005 and recorded with the Registry and filed with the District on August 31, 2005, the trustees of the Goethals Trust conveyed Lot 2, located at 33 Goethals Way, to the Brunos.

20. The Goethals retained Lot 1, located at 25 Goethals Way, transferring it on September 9, 2005 to the Goethals Trust by deed recorded with the Registry and filed with the District.

21. Both Lot 1 and Lot 2 are located in the R-25 zoning district in Tisbury.

22. As of 2014, the Bylaw requires homes in the R-25 district to have a minimum lot size of 25,000 square feet and at least 125 feet of frontage.

23. Neither party provided the zoning requirements for the R-25 district as of 2001, the year the ANR plan was endorsed.

24. Lot 1 and Lot 2 also are located in the Inland Coastal Overlay District, defined as “the land, streams and wetlands of Tisbury which lie below the ten foot elevation above mean sea level, or within five hundred feet of mean high water of a coastal water body exceeding ten acres, or the ocean . . .”

25. After the sale of the Bruno property, the Goethals began for the first time to rent out the residence on Lot 1 for approximately four to six weeks between the months of July and September.

26. In 2008, the Goethals applied for and obtained a building permit to expand their deck.

27. In 2010, the Goethals performed construction work to convert into another bedroom the first floor sitting room in the house on their lot, increasing the number of bedrooms from four to five.

28. By letter dated September 19, 2013, Mr. Bruno wrote to the Tisbury ZEO (Kenneth Barwick), requesting enforcement of the Bylaw against the Goethals with regard to zoning violations on Lot 1. This letter was received September 24, 2013.

29. In the enforcement request Mr. Bruno alleged, in summary: that the division pursuant to the ANR plan left Lot 1 as dimensionally noncompliant under the zoning laws, due to the lot size and frontage requirements for the R-25 zone as described in sections 04.06.01 and 13.01 of the Bylaws: that the Goethals failed to obtain necessary variances and permits to carry out interior renovations; and that the Goethals violated Coastal District Regulations and Restrictions concerning occupancy, number of bedrooms, and living space requirements.

30. The ZEO completed his investigation and informed Mr. Bruno by letter dated January 8, 2014 that, while Lot 1 violated the Bylaw, the Goethal lot was protected against enforcement due to the six-year statute of limitations included in G.L. c. 40A § 7.

31. Pursuant to G.L. c. 40A §§ 8 and 15, the Brunos timely appealed the ZEO decision to the Board on February 5, 2014.

32. The Board held a public hearing on the appeal on March 13, 2014; the Board continued the hearing to April 10, 2014.

33. At the end of the public hearing on April 10, 2014, the Board voted to uphold the ZEO decision to decline enforcement, based on the statute of limitations in G.L. c. 40A § 7.

34. The Board filed its written decision with the Town Clerk’s Office on April 18, 2014, stating that “while the division of land with an ANR endorsement did not waive any zoning requirements, due to a statute of limitations any unpermitted construction over six years would not permit enforcement.”

IV. ANALYSIS

This case is before the court as a challenge to the Board’s decision upholding the ZEO’s determination that, with respect to the asserted zoning noncompliance of the Goethal lot and structure, the statute of limitations set out in G.L. c. 40A, § 7 had run, and that the Town therefore was barred from carrying out the zoning enforcement action requested by the Brunos against the Goethals. The parties submitted this issue to the court on cross-motions for summary judgment. Counsel agree that the case as submitted to the court lends itself to resolution on summary judgment, no material facts being in dispute.

“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 , 643-644 (2002); Mass. R. Civ. P. 56 (c) (2016) . “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. “‘[T]he inferences to be drawn from the underlying facts contained in [summary judgment] materials must be viewed in the light most favorable to the party opposing the motion.’” Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982) (quoting Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970)).

While there are some disputes as to the facts in this case, those disputes do not extend to material facts. The undisputed facts are sufficient for me to reach a decision as matter of law under Mass. R. Civ. P. 56.

I conclude that, although the Board, like the ZEO, was incorrect about which of the two statutes of limitations set out in G.L. c. 40A, § 7 applies here, the longer of the two statutes of limitations in that section does apply to the violations which do exist with respect to the Goethals’ Lot 1, and has run. For that reason, I determine that the decision of the Town is not legally entitled to be annulled or modified, and is to be upheld.

This dispute got underway based on a request from the plaintiff neighbors, the Brunos, that the Town, acting by its ZEO, enforce its local zoning laws. I thus consider briefly whether the triggering request for enforcement was timely presented. I conclude that it was.

Private parties do not have independent authority to seek and obtain enforcement of the zoning laws. That right and responsibility rests with the municipality, acting through its zoning enforcement officer. A private actor, sufficiently aggrieved by a zoning law violation, is remitted to the administrative process set out in G.L. c. 40A, and is required to seek enforcement action from the municipal officials. The municipality may of its own volition determine to enforce its zoning law, both in cases where a violation has come to municipal attention through a private party, and in instances where the municipal officer independently is aware of a violation. If, however, the municipality declines to pursue enforcement, the statutory framework provides private parties the right to insist on that enforcement, and there are time frames within which the private party may do that.

A person who is aggrieved by an order or decision of the inspector must move forward promptly with the administrative process. When an aggrieved party is challenging an “order or decision” of a town official, the time frame for lodging an administrative appeal is set out in G.L. c. 40A, § 15, and is “thirty days from the date of the order or decision.” Where the aggrieved party has notice of, for example, a building permit being issued, such a permit constitutes an “order or decision” from which this time period begins to run. Connors v. Annino, 460 Mass. 790 , 791 (2011) (“where the aggrieved party has adequate notice of the building permit’s issuance, he or she is required to appeal to the appropriate zoning board of appeals within thirty days of the permit’s issue date.”). An aggrieved person “armed with knowledge of a zoning violation” cannot then “sit on her rights while the recipient of the permit incurs substantial expense by undertaking authorized construction.” Gallivan v. Zoning Bd. of Appeals, 71 Mass. App. Ct. 850 , 857. Under this jurisprudence, when officials take an action, such as the issuance of a permit to build, which results in a perceived zoning violation, there is only a thirty day window from which to appeal this “order or decision.”

If, however, there is no order or decision by the inspector triggering directly the perceived zoning law violation–if there simply exist facts showing a violation of the zoning law is taking place, the aggrieved party needs to request enforcement by the zoning enforcement officer. If the officer does not enforce, once the decision declining to enforce is rendered, the aggrieved private party must promptly take an administrative appeal to the zoning board of appeals. Under G.L. c. 40A §8 “appeal . . . may be taken by any person aggrieved by reason of his inability to obtain a . . . enforcement action”). The appeal to the zoning board must be filed within thirty days. G.L. c. 40A, §15.

In the case before me, the Brunos’ request for enforcement, embodied in Mr. Bruno’s September 19, 2013 letter, does not appear to have been triggered by a particular order or decision by the building inspector and zoning enforcement officer. Rather, the violations of which the Brunos complain focus on conduct by the Goethals with respect to the dimensions and use of their land following the division of the larger parcel into Lot 1 and Lot 2. The Brunos did not take direct issue with any particular order or decision by the inspector. Rather, their quarrel is with the Goethals and their lot, and then, once the ZEO declined the requested enforcement, the Brunos, aggrieved by that result, were obliged to pursue a timely administrative appeal to the Board. The record shows that they did that.

I conclude that the administrative appeal taken by the Brunos to the Board was presented in time, and was properly considered and acted upon by the Board. [Note 5]

Next, I take up the more difficult question whether the time for municipal enforcement of the zoning violations complained of by the Brunos has passed, based on the statutes of limitation that lie in the zoning act, and in particular in G.L. c. 40A, §7. This section of the statute contains time periods beyond which certain actions to enforce as to violations of local zoning laws are barred. There are two different limitations periods. Section 7 creates both a six-year statute of limitations and a ten-year statute of limitations. The entitlement to the benefit of these depends on the nature of the violation, and the manner in which it arises. [Note 6] Whether the enforcement by the municipality is initiated by a town official in the first instance, or results from a timely enforcement request pressed by a private party, enforcement only is possible if the applicable statute of limitations has not yet run.

There are differences between the six-year and the ten-year statutes of limitations. The shorter one requires, for it to apply, that “real property has been improved and used in accordance with the terms of the original building permit issued by a person duly authorized to issue such permits.” The shorter limitations period does not come to the aid of a violator of the zoning law unless the property’s use and improvement, as to which enforcement is sought, is in accordance with a building permit issued by an authorized official. If the six-year limitations period does apply, it bars an “action, criminal or civil, the effect or purpose of which is to compel the abandonment, limitation or modification of the use allowed by said permit or the removal, alteration or relocation of any structure erected in reliance upon said permit by reason of any alleged violation of the provisions of this chapter, or of any ordinance or by-law adopted thereunder....” (emphasis supplied).

The longer, ten-year statute of limitations does not depend on the issuance of a building permit. This protection is available even absent any building permit. The longer statute of limitations bars an “action, criminal or civil, the effect or purpose of which is to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of the provisions of this chapter, or any ordinance or by-law adopted thereunder, or the conditions of any variance or special permit....” If the ten-year statute applies, enforcement is prevented even as to violations which are not consonant with an issued building permit. What the ten-year statute of limitations bars is an action that would bring about the removal, alteration, or relocation of any structure. This part of section 7 does not afford protection against other enforcement actions, including those directed against unlawful uses. The ten-year statute’s benefit to a zoning violator is more limited than available under the six-year statute, which protects as well against actions to compel the abandonment, limitation, or modification of use allowed by the previously-issued permit.

The ZEO, in a decision upheld by the Board, concluded that the various violations complained of by the Brunos could not be the subject of any enforcement, as the six-year statute of limitations applied, and had run. My task is to determine if this decision by the Board was legally tenable. I conclude that the Board erred in deciding that the six-year statute had any application here.

If there is a zoning violation here as to use, enforcement as to that violation could only be barred under the six-year statute of limitations. It is the only one in section 7 that protects against actions directed to unlawful uses. The Brunos do contend that there is a zoning use violation underway at the Goethals lot–the Brunos say that the guest house use authorized by the 1978 special permit cannot lawfully be maintained now that the division of the Original Lot brought about by the 2001 ANR plan has taken place. The Brunos argue that a guest house use only is available by special permit to authorize the use of a second guest dwelling structure, subordinate to a main residential structure, on the same lot. They are correct in this, but their argument misses a larger point. Since the division of the Original Lot into Lot 1 and Lot 2, and certainly since the 2005 sale of Lot 2 with its residential home on it to the Brunos, the dwelling on Lot 1 has been the only house on Lot 1. It is, and has been, a single-family residence on Lot 1. And a single-family residential use is allowed of right in this zoning district. [Note 7] There is nothing shown in the record indicating that the dwelling structure now on the Goethals’ land does not function and qualify as a single-family residence.

During the years that the two dwelling structures stood on a single lot–the Original Lot–the zoning laws forbade use of that one lot as the location of two single-family residences. Therefore, the Goethals needed to secure the special permit to authorize the use of the Original Lot for both the single family residential use by the main house, and the guest house use by the dwelling that took the place of the former garage. But since the time Lot 1 came into existence, the dwelling on it now owned and occupied by the Goethals constitutes a single family residential use of that lot, and is the only dwelling on that lot. That use is one the Bylaws permit of right. For this reason, the application of the six-year statute to this asserted use violation is of no legal relevance. No statute of limitations as to use is implicated, because the current use is a lawful one.

None of the other violations of which the Brunos complain fall into the category of “use” violations. They are dimensional and structural in character. These asserted violations go to the dimensions of the undersized lot (Lot 1) on which the Goethals dwelling sits, to the size and location on the lot of the structure, and to the layout and number of rooms in the dwelling. These are not complaints about use. [Note 8] They are addressed to dimensional shortcomings, and the remedy sought would be to compel the removal, alteration, or relocation of the structure. [Note 9] The Brunos ask for nothing less. These alleged violations thus are susceptible of being denied enforcement under the ten-year statute of limitations. As I have said, this limitations statute protects even in the absence of a building permit issued by an authorized official.

The central zoning violation charges which the Brunos level go to the dimensionally- deficient area of Lot 1, the related shortfalls in frontage, and insufficient setbacks from the residence on that lot to its boundary lines. The Bylaws impose in this zoning district dimensional minima that Lot 1 does not entirely achieve. Required are a lot area with a minimum of 25,000 square feet, 125 feet of frontage, 125 feet of lot depth, 25 feet of front, side, and rear yard setback, and a maximum house height of 35 feet. Bylaw 13.01. Lot 1, established in the 2001 ANR plan, has only 12,350 square feet of area. Mr. Bruno asserts that Lot 1 has only 96 feet of frontage, 90 feet of lot depth, 15 feet of front setback, and 16 feet of side setback.

Where a building occupies an undersized lot in violation of the zoning law, the remedy for that often, if not typically, is to order the removal of the structure, if there is no alternative way to increase the area of the lot. The dimensional violation at the heart of the Brunos’ complaint thus is one which could be rendered unenforceable by the ten-year statute of limitations of G.L. c. 40A, §7, if available in this situation.

The Board concluded that all of the violations about which the Brunos seek enforcement were barred by the six-year statute of limitations. For the reasons already explained, I have concluded that that statute does not govern in this case. Instead, I need to decide whether, on the uncontested facts as matter of law, the ten-year statute does or does not provide protection to the Goethals.

That statute prevents enforcement actions, based on zoning law violations, to remove, alter, or relocate a structure, unless the action is commenced (and notice of the commencement is recorded with the land records) within “ten years next after the commencement of the alleged violation....” I conclude, based on the uncontested facts in the summary judgment record, that the violations as to the lot dimensions complained of by the Brunos commenced more than ten years before the institution of this action in this court on May 2, 2014, and (to the extent relevant) [Note 10] before the request for administrative enforcement made in Mr. Bruno’s September 19, 2013 letter to the ZEO, as well.

My need to determine whether the ten-year statute applies on these facts focuses my attention on when these violations “commenced.” I conclude that the dimensional violations–those related to the lot area, frontage, and setback deficiencies of Lot 1–arose when Lot 1 came into existence. When the Goethals owned the Original Lot, with both dwelling structures standing on the single lot, these dimensional problems did not exist. It only was when the Original Lot was divided officially into two lots that Lot 1 became too small, and the violations arose.

Lot 1 and Lot 2 came to exist in 2001, at the meeting held December 19, when the Planning Board placed its endorsement on the ANR plan. At that point, Lot 1 was a separate lot, capable of conveyance apart from Lot 2, the remainder of the Original Lot. The Bylaws do not define a “lot” per se. There thus is no firm guidance in the local law about whether, upon their creation in 2001, for zoning dimensional compliance purposes Lot 1 and Lot 2 each became “lots” for purposes of measuring dimensional minima under the zoning laws of Tisbury. But once the ANR plan was endorsed, the lots each took on their own independent status. The computation of setback and frontage dimensions, for example, which are measured from and along the lines of a lot, would most naturally be accomplished separately as to Lot 1 and Lot 2 once the owner of them filed with the Planning Board, and had endorsed, the plan showing them as stand-alone parcels, each with its own defined lot lines.

I am mindful that the Planning Board’s endorsement of the ANR plan was based on the provisions of G.L. c. 41, §81L. That statute creates an exclusion from the definition of a subdivision. A “subdivision” does not include “the division of a tract of land on which two or more buildings were standing when the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing.” (emphasis supplied).

The Planning Board certainly contemplated that the ANR plan it endorsed would yield two separate lots. The parcels resulting from the division of the Original Lot were expressly labelled “Lot 1" and “Lot 2.” The endorsement the Planning Board supplied, moreover, was very clear that the endorsement provided no assurance of zoning compliance, and, indeed, no insulation against the enforcement of zoning laws: “Endorsement is without regard to buildability, or permitted occupancy, does not stay enforcement of Zoning violations and is subject to other notations hereon.” Among the notations on the ANR plan were that the land was in Zoning District R=25, “Minimum area = 25,000 Sq. Ft. Setbacks 25 Feet on all sides.”

There may have been at one time, among zoning lawyers and conveyancers, a difference in view about whether the division of land into two or more separate lots, each with a preexisting building upon it, pursuant to section 81L, afforded any zoning protection to the resulting lots as to their dimensional shortcomings under then applicable zoning laws. With its decision in Palitz v. Zoning Bd. of Appeals of Tisbury, 470 Mass. 795 (2015), however, the Supreme Judicial Court put that question to rest.

In Palitz, a Tisbury property owner in 1994 employed section 81L to divide into separate lots land with preexisting structures on it, and the property owner then requested a variance in 1995 to address the dimensional shortcomings of one of the resulting lots. 470 Mass. at 797-98. The variances were sought “to make the lot and dwelling lawful, and therefore, saleable as such.” Id., at 797 (footnote omitted) The plaintiff in Palitz argued that this 1995 variance--and any other variance--was unnecessary. Id. at 798. She took the position that the use of section 81L to accomplish the division rendered the resulting lots, with the dwellings on them, grandfathered. This court (Scheier, C.J.) disagreed, as did the Supreme Judicial Court. It decided that when the lots were divided, this resulted in a zoning violation that required a variance “to render the new nonconformities lawful.”. Id. at 802. This zoning violation occurred not at the conveyance, but rather when the §81L plan came to be: “The new lot at 87 Main Street, as created by the §81L plan, did not conform to the town’s zoning bylaw regarding minimum lot size and frontage requirements. The creation of the new lot also rendered the dwelling located thereon nonconforming with respect to its front and southern side yard setbacks.” Id. at 797. The Supreme Judicial Court was emphatic that zoning violations do arise from divisions of land by use of a §81L endorsement, and are not excused from compliance with the municipal dimensional requirements. “...[T]he mere fact that the new nonconformities in this case arose pursuant to an §81L division did not mean that those nonconformities were entitled to grandfather protection under the Zoning Act or otherwise were excused from complying with the town’s zoning bylaw.” Id., at 807 (citations omitted).

I conclude that the creation of Lot 1 and Lot 2, upon endorsement under §81L by the Planning Board of the Goethals’ ANR plan, rendered those two lots separate and distinct for zoning purposes, and gave rise to the existence of dimensional violations at that time–the same zoning violations as to which the Brunos sought enforcement in 2013. Because the Brunos’ administrative request for enforcement, the prelude to this zoning appeal (see note 10), was advanced well more than ten years after the ANR plan endorsement brought about the commencement of those violations, the ten-year statute of limitations bars enforcement. [Note 11]

I have considered the alternative conclusion that no violation arising from Lot 1's dimensional shortfalls arose until the ANR plan later was recorded along with the deeds conveying out Lot 1 and Lot 2 into separate ownership. I recognize as well that the presence, within both Lot 1 and Lot 2, of land with a registered title may have required the presentation to (and approval by) this court of plans of division, to allow the issuance of certificates of title for the new lot configuration. The time needed to accomplish this may account for some of the time that passed between the 2001 endorsement of the ANR plan and the later recording and registration of the deeds. That recording took place in 2005, and so fell less than ten years before the initiation of this suit.

However, on the particular facts of this case, I do not view this later date to be the correct one from which to measure the “commencement” of Lot 1's dimensional zoning violations. A municipality certainly may define a “lot” in a manner that ties the creation of a lot, or the computation of its dimensional requirements, to ownership, and, in particular, to ownership apart from adjoining land. But Tisbury has not done so. It has no express definition of the word “lot,” and the related words “lot area” and “lot coverage” do not suggest any intention that a lot be measured as such for zoning compliance only after the land has been conveyed out into separate ownership. Everything about the ANR plan and its endorsement shows the municipality treated Lot 1 and Lot 2 as separate zoning lots when that plan earned its endorsement--which carefully warned that zoning violations well could exist (and not be protected against) following the issuance of the endorsement.

I accept that, if Lot 1's dimensional violations had been pointed out to the Goethals during the years following the ANR endorsement, and prior to the sale of Lot 2 to the Brunos, it would have been an easy matter for the Goethals to come into compliance, by reuniting the two newly created lots into one, by filing with the Planning Board a request for endorsement of a new plan of a single lot. But just because the fix for Lot 1's dimensional shortcomings would (prior to conveyance to the Brunos of Lot 1) have been a simple one, does not mean that, in the eyes of the law, there were not violations in existence starting when the ANR plan was endorsed. And, with the commencement of those violations began the running of the ten-year statute of limitations.

The chronology of these lots’ creation shows why there is no inequity at all in concluding that, for purposes of computing when these dimensional violations arose, they did so when the ANR plan was endorsed at the end of 2001. The Brunos were the grantees of Lot 2 from the Goethals, who, prior to the division of the Original Lot, were not in violation of the dimensional requirements of the local zoning law. When the Brunosagreed to buy Lot 2, and then proceeded to take title to it, it must have been entirely obvious to the Brunos that Lot 1 had been left with greatly less than the minimum area. The Brunos’ Lot 2, which more than met the required lot area, emerged from the very ANR plan that shows plainly the lack of sufficient area of Lot 1. The areas of Lot 1 and Lot 2 are plain on that plan, it warned that zoning enforcement was unaffected by the endorsement, and the plan disclosed the minimum area which the zoning law required. There was nothing hidden about this. From the time the ANR plan was endorsed, anyone having anything to do with it was on full notice of the zoning dimensional deficiencies of Lot 1–the same deficiencies that the Brunos have pushed so hard since 2013 to have enforced. [Note 12] The Brunos knew full well that Lot 1 had on it a dwelling structure that gave rise to dimensional violations once Lot 1 came into being. [Note 13]

The record does not reveal great detail about the Brunos’ first encounter with these lots; there was a gap of more than three years between the ANR plan’s endorsement and the closing of the sale of Lot 2 to the Brunos. But the conclusion is inescapable that, in preparing to record and register their deed, the Brunos would have had all the facts needed to raise the issue of an obvious zoning dimensional violation afflicting Lot 1. If this issue had risen up before the deeds were recorded, perhaps the violation could have been addressed–by obtaining variances (as took place in Palitz, supra) or with some acquisition of additional land, for example. At worst, the transfer to Lot 2 to the Brunos could have been called off. Of course, the primary responsibility for recognizing and addressing Lot 1's zoning violations rests on the Goethals and their counsel. But there is hardly any unfairness in employing the statute of limitation in this case, which bars enforcement of the local zoning law, when the Brunos acquired Lot 2 with full awareness of the violations apparent as to Lot 1, and yet waited until 2013 to push for enforcement.

Given that I reach the conclusion, as matter of law, that the ten-year statute of limitations bars enforcement by the Town of the zoning laws as to Lot 1's dimensional violations, I need not address directly whether the conduct of the Brunos--in waiting until they had taken their title to Lot 2, and in so doing, depriving the parties of any creative way to mitigate the violations–amounts to inequitable conduct. I do not need to decide whether on that ground the Brunos ought not be able to secure judicial assistance in ordering enforcement which the officials in the Town have declined to pursue.

I do note that our zoning law, which generally disfavors the division of land to create lots that are undersized for zoning purposes, also strongly pushes for lots held in common ownership to be treated as “merged” for zoning compliance purposes. “[A]djacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities.” Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236 , 238 (2001), quoting Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987). Flowing from this overarching emphasis on having lots of sufficient size to meet current zoning, our courts have recognized the common-law principle of “infectious invalidity,” under which “a property owner may not create a valid building lot by dividing it from another parcel rendered nonconforming by such division.” 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 694-695 n. 6 (2012)(citations omitted). Typically the cases on infectious invalidity involve a new vacant lot of adequate size conveyed out of a larger parcel, leaving the improved lot undersized. It is not clear, however, that the doctrine would not extend to the facts of this case, in which, in the division of the Original Lot, improved Lot 2 achieved the minimum size the Bylaw required at the expense of subsized, and also improved, Lot 1. Given the result I have reached–that enforcement as to Lot 1 is barred by the ten-year statute of limitations--I need not determine whether in this case the doctrine of infectious invalidity would visit itself on the seeming zoning compliance of Lot 2.

I also perceive no need to consider what effect, if any, the provisions of a recently-enacted amendment to G.L. c. 40A, §7 would have. In Chapter 184 of the Acts of 2016, the legislature amended the statute to address the status of a structure, which violates zoning law, but which is protected from enforcement because the statute of limitations has run. The new law, which will take effect on November 2, 2016, will deem a qualifying illegal structure, in existence for at least ten years, “to be [a] legally non-conforming structure[...] subject to section 6 [of G.L. c. 40A] and any local... by-law relating to non-conforming structures.” Because in the case before me there is no proposal to expand or alter in the future the dwelling on Lot 1, I have no reason to take up whether this latest statutory amendment, which applies “regardless of whether the structure was erected prior to or after” the act’s effective date, comes into play. The amendment, soon to become effective, may have import for future changes to the structure involved here.

The plaintiffs also have sought enforcement with regard to the number of bedrooms present in the structure on Lot 1. To the extent that the maximum bedroom count derives under the septic system regulatory scheme, Title 5, the enforcement of those regulations is not implicated in this zoning proceeding. Plaintiffs say, however, that the property is within the Coastal Overlay District, and that regulations governing that overlay district, referenced in the local zoning law, limit the number of bedrooms to fewer than five. Section 09.9.7(8) of the Coastal District and Barrier Beach Regulations, referred to in the zoning bylaw, calls for two and no more than three bedrooms. The Board’s counsel correctly observes that while these Coastal District regulations do integrate with the zoning law, the authority to enforce them resides not with the zoning authorities in the town, but with the Tisbury Board of Health, which of course is not involved in these proceedings. For a discussion of the manner in which regulations of this sort are placed into a Dukes County municipality’s zoning law, and the significant ways in which these regulations have a separate character and different legal treatment than ordinary locally-enacted zoning law provisions, see Bullen v. Velarde, 17 LCR 403 , 405 (2009), and cases cited there. In any event, the Goethals have stipulated in this proceeding that, to the extent there are more bedrooms present in their dwelling than allowed under these regulations, the Goethals will seek approval to authorize a larger number, and, if unsuccessful, will perform the work necessary to remove the excess bedrooms. Relying on these undertakings, and based on the foregoing, I conclude that the Board’s decision may be upheld notwithstanding the number of bedrooms which may exist in the house on Lot 1.

In its decision, the Board determined that the decision of the ZEO declining the Brunos’ request for zoning enforcement was to be upheld. Although the analysis relied upon by the Board in reaching its decision was different than that I have conducted, I come to the same result. I conclude that the summary judgment motion of the plaintiffs is to be DENIED, the defendants’ cross-motion for summary judgment is to be ALLOWED, and that judgment will enter upholding the Board’s decision.

Judgment accordingly.