Plaintiffs RCA Development, Inc. (RCA) and Michelle Annese (Annese) appeal a decision (Decision) of defendant Brockton Zoning Board of Appeals (ZBA), which denied their appeal of the Building Inspector's denial of their application for a building permit to construct a residence on a vacant lot on Braemoor Road in Brockton (Locus). RCA and Annese claim that the Locus, a part of 24 Braemoor Road, is a buildable lot. They argue that the Locus was created by division of an existing lot in 1964, and retains grandfather status under the zoning ordinance in effect at the time of division. The ZBA argues that the Locus is unbuildable either because the division did not comply with the Subdivision Control Law, or the Locus merged with the remainder of 24 Braemoor Road when it was placed in common ownership, losing any grandfather protection under the prior zoning ordinance. As discussed below, the Locus was properly divided and retains its grandfather status under the then-existing bylaw. The Locus is therefore a buildable lot, and the ZBA's Decision upholding the Building Inspector's denial of the building permit is annulled.
Procedural History
The Complaint was filed on December 16, 2016. A case management conference was held on January 17, 2017. Plaintiffs' Motion for Summary Judgment, Defendants' Motion for Summary Judgment, Memorandum in Support of Defendants' Motion for Summary Judgment, and Joint Statement of Agreed Upon Facts were filed on May 19, 2017. On May 30, 2017, Plaintiffs' Opposition to Defendants' Motion for Summary Judgment was filed. On May 31, 2017, Defendants' Opposition to Plaintiffs' Motion for Summary Judgment was filed. On June 12, 2017, Plaintiffs' Reply Brief to Defendants' Opposition to Plaintiffs' Motion for Summary Judgment was filed. A hearing on the cross-motions for summary judgment was held on June 14, 2017, and the motions were taken under advisement. This Memorandum and Order follows.
Summary Judgment Standard
Generally, summary judgment may be entered if the "pleadings, depositions, answers to interrogatories, and responses to requests for admission . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Mass. R. Civ. P. 56(c). In viewing the factual record presented as part of the motion, the court draws "all logically permissible inferences" from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). "Summary judgment is appropriate when, 'viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).
Undisputed Facts
Based on the pleadings and the documents submitted with the motion for summary judgment and opposition, as well as facts found by this court in related prior litigation between the parties, the following facts are undisputed or deemed admitted:
1. In 1937, a plan of land entitled "Fairview Lawns, Plan of Land in Brockton, Mass. Surveyed for Stanley B. Swartz, Scale 80 Feet to an Inch, September 20, 1927, Date of this Plan Aug. 1, 1936, Additions & Corrections Mar. 20, 1937, Hayward & Hayward, Surveyors," was recorded in the Plymouth Registry of Deeds (registry) in Plan Book 5, Page 738 (Fairview Plan). The Fairview Plan depicts lots located on Braemoor Road in Brockton. Lot 46 on the Fairview Plan is shown as having 115 feet of frontage on Braemoor Road, with a depth of 141.46 feet. SOF ¶ 1, Exh. 1.
2. The Fairview Plan depicts Lot 46 as abutting Lot 45 to the north and Lot 47 to the south. Lots 45, 46, and 47 are all shown as having frontage on Braemoor Road. Braemoor Road has been a public way since 1937. SOF ¶ 2; Exh. 1.
3. In 1952, a single family residence was built on Lot 47, now known as 24 Braemoor Road. SOF ¶¶ 3-4; Exh. 2.
4. The City of Brockton adopted the Subdivision Control Law on November 6, 1957. SOF ¶ 31.
5. On January 10, 1962, Morris Rosenthal and Esther Rosenthal conveyed Lot 47 to Jack Starr and Fannie Starr (Starrs) by deed recorded in the registry on January 26, 1962, in Book 2912, Page 275. SOF ¶ 5; Exh. 3.
6. On August 28, 1964, Ruth M. Filoon (Filoon), the owner of Lot 46, conveyed the southern portion of Lot 46 (Locus) to Jack Starr, individually, by deed recorded in the registry on August 31, 1964, in Book 3138, Page 186 (Filoon Deed). The Filoon Deed was the first time that Lot 46 was split into a northerly and southerly half. At the time of the Filoon Deed, the Starrs owned the adjoining Lot 47. SOF ¶¶ 7-9; Exhs. 3, 5.
7. Also on August 28, 1964, Filoon conveyed the northerly half of Lot 46 to Peter Chani and Tefte Chani (Chanis) by deed recorded in the registry on August 31, 1964, in Book 3138, Page 185. The Chanis already owned the adjoining Lot 45 at the time of the conveyance of the northerly half of Lot 46. SOF ¶ 26; Exhs. 17, 18.
8. In 1964, a residence was built on Lot 45, now known as 38 Braemoor Road. SOF ¶ 24; Exh. 16.
9. Both the Locus and the northerly half of Lot 46 have 57.5 feet of frontage on Braemoor Road, and a lot depth of over 140 feet. Exhs. 5, 17.
10. The Locus is approximately 8,132 square feet. Exh. 7.
11. On September 22, 1965, Jack and Fannie Starr conveyed the Locus and Lot 47 (collectively the Property) to Karle D. Mullare and M. Evelyn Mullare (Mullares) by deed recorded in the registry on September 23, 1965 in Book 3244, Page 753 (Starr Deed). The Starr Deed describes the conveyed Property as follows:
A certain parcel of land, situated in Brockton in the County of Plymouth and Commonwealth of Massachusetts, bounded and described as follows:
The southerly half of Lot # 46, and all of Lot 47, situate on the westerly side of Braemoor Road, on a "Plan of Land in Brockton, Massachusetts, Fairview Lawns, surveyed for Stanley R. Swartz, Sept. 20, 1927, Date of this Plan August 1, 1936, Additions and Corrections, March 20, 1937, Hayward and Hayward, Surveyors," duly recorded with Plymouth Deeds.
Said southerly half of Lot 46 is bounded and described as follows:
Easterly by Braemoor Road, 57 ½ feet; Northerly by the northerly half of said Lot 46, 141.43 feet more or less; Westerly in part by Lot 41 on said plan in part by land now of Hollander, formerly of Elliot 57.5 feet; and Southerly by Lot 47 on said plan 141.46 feet.
Said Lot 47, bounded and described as follows:
Said Lot 47 is bounded and described as follows: Beginning at the southeast corner of the premises to be conveyed, said point being the northeast corner of land of one Fuller; thence westerly by land of said Fuller one hundred fifty and 30/100 (150.30) feet to a point and corner of land now or formerly of Manuel Kumin; thence northerly by said land of Kumin seventeen (17) feet, more or less, to a point and corner of land of one Hollander; thence southeasterly by land of said Hollander ten (10) feet, more or less; thence northerly still by land of said Hollander on hundred (100) feet, more or less, to land of one Filoon; thence easterly by land of said Filoon one hundred forty-one and 46/100 (141.46) feet to Braemoor Road; thence southerly by the westerly line of Braemoor Road one hundred fifteen (115) feet to the point of beginning.
SOF ¶ 10; Exh. 6.
12. Deeds from the Mullares and thereafter used the same description as in the Starr Deed. SOF ¶ 11; Exhs. 5, 6, 8, 12-14.
13. Beginning on March 14, 1966, the City of Brockton Assessor began assessing the southern portion of Lot 46 and Lot 47 as a single parcel by direction of the Board of Assessors. SOF ¶ 12; Exhs. 7, 21.
14. At the time of the Filoon Deed and Starr Deed, the Brockton Zoning Ordinance in effect was the 1963 Zoning Ordinance. Exh. 4.
15. The City of Brockton adopted its current Brockton Zoning Ordinance to be effective January 1, 1968 (BZO). The BZO remains in full force and effect. SOF ¶ 13; Exh. 8.
16. According to the BZO, the Locus is situated in Brockton's R-1B District, which requires a minimum lot area of 30,000 square feet and a minimum frontage of 175 feet. SOF ¶ 21.
17. The northerly half of Lot 46 is held in common ownership with Lot 45 (38 Braemoor Road) as well as 35 Fairview Avenue and 25 Fairview Avenue. The house on 35 Fairview Avenue was built in 1947 and the house on 25 Fairview Avenue was built in 1932. None of these properties were in common ownership with the Locus, other than Lot 47, as of January 1, 1968. SOF ¶¶ 22-23, 25, 28-29; Exhs. 19-20.
18. On May 8, 1973, M. Evelyn Mullare conveyed the Property to Alan D. Stone and Marcia A. Stone by deed recorded in the registry on May 14, 1973, in Book 3889, Page 571. SOF ¶ 14; Exh. 9.
19. On January 27, 1977, Marcia A. Stone conveyed all her right, title, and interest in the Property to Alan D. Stone by deed recorded in the registry on March 24, 1977, in Book 4250, Page 402. SOF ¶ 15; Exh. 10.
20. On September 16, 1977, Alan D. Stone conveyed the Property to Nuvart Cadircioglu by deed recorded in the registry on October 18, 1977, in Book 4347, Page 200. SOF ¶ 16; Exh. 11.
21. On November 6, 1980, Nuvart Cadircioglu conveyed the Property to Robert L. Kovner and Selma L. Kovner by deed recorded in the registry in Book 4923, Page 51. SOF ¶ 17; Exh. 12.
22. On May 9, 1991, Robert L. Kovner and Selma L. Kovner conveyed the Property to Selma L. Kovner by deed recorded in the registry on May 14, 1991, in Book 10276, Page 7. SOF ¶ 18; Exh. 13.
23. On December 14, 2011, Selma L. Kovner conveyed the Property to Selma Kovner, Trustee of the Selma Kovner Trust Agreement by deed recorded in the registry on January 6, 2012, in Book 40822, Page 336. SOF ¶ 19; Exh. 14.
24. On April 5, 2016, Selma Kovner, Trustee of the Selma Kovner Trust Agreement conveyed the Property to Annese by deed recorded in the registry on April 15, 2016, in Book 46809, Page 239. SOF ¶ 20; Exh. 15.
25. On July 19, 2016, Annese, the current owner of the Property, recorded a plan pursuant to G.L. c. 41, § 81X, dated July 14, 2016, in the registry at Plan Book 60, Page 702. SOF ¶ 33; Exh. 22.
26. Annese and her designee RCA applied for a building permit to construct a residence on the Locus, which was denied by the Building Inspector. The Building Inspector's denial was affirmed by the ZBA by the Decision, filed with the City Clerk on November 29, 2016. SOF ¶ 34; Exh. 23.
27. Annese and RCA timely appealed the Decision to this court pursuant to G.L. c. 40A, § 17.
Discussion
An appeal of a zoning board of appeals decision is de novo; that is, in an action under § 17 the "court shall hear all the evidence pertinent to the authority of the board . . . and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board . . . or make such other decree as justice and equity may require." G.L. c. 40A, § 17. Section 17 review of a local board's decision involves a "'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381 (2009). The court is obliged to find facts de novo and may not give any weight to those facts found by the local board. G.L. c. 40A, § 17; Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003) ("In exercising its power of review, the court must find the facts de novo and give no weight to those the board has found."); Kitras v. Aquinnah Plan Review Comm., 21 LCR 565 , 570 (2013) (noting the court must "review the factual record without deference to the board's findings"). After finding the facts de novo, the court's "function on appeal" is "to ascertain whether the reasons given by the [board] had a substantial basis in fact, or were, on the contrary, mere pretexts for arbitrary action or veils for reasons not related to the purpose of the zoning law." Vazza Props., Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The court, however, must give deference to the local board's decision and may only overturn a decision if it is "based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970), citing Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277 (1969); Britton, 59 Mass. App. Ct. at 72; Kitras, 21 LCR at
570.
In determining whether the decision is "based on legally untenable ground," the court first looks at whether it was decided on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws. Here, the approach is deferential only to the extent that the court gives "some measure of deference" to the local board's interpretation of its own zoning by- laws. Once the court determines the content and meaning of statutes and by-laws, it looks at whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the appeal. Britton, 59 Mass. App. Ct. at 73. Finally, the court finds the facts and determines whether "any rational board could" come to the same conclusion. Id. at 74. This step is "highly deferential," but deference is not abdication. Id. "As a consequence, the board's discretionary power of denial extends up to those rarely encountered points where no rational view of the facts the court has found supports the board's conclusion that the applicant failed to meet one or more of the relevant criteria found in the governing statute or by-law." Id. at 74-75. If the board's decision is found to be arbitrary and capricious, the court should annul the decision. See Mahoney v. Board of Appeals of Winchester, 344 Mass. 598 , 601-602 (1962).
Plaintiffs appeal the Decision affirming the denial of their request for a building permit to construct a dwelling on the Locus. Specifically, the Plaintiffs contend that the ZBA exceeded its authority in upholding the Building Inspector's determination that the Locus is not a buildable lot. The ZBA argues that the creation of the Locus in 1964 was unlawful because there was no planning board approval pursuant to the Subdivision Control Law. If the creation of the Locus was lawful, the ZBA alternatively submits that the Locus does not qualify for grandfather protection under the BZO since it merged with the adjoining property when it came under common ownership. These arguments are addressed in turn below.
I. The Creation of the Locus
Lot 46 was originally delineated in the Fairview Plan with 115 feet of frontage on Braemoor Road and a depth of 141.46 feet. In 1964, Filoon split Lot 46 in half, creating a northern and southern section. The northern portion of Lot 46 was deeded to the Chanis while the southern portionthe Locuswas deeded to Jack Starr. The division was done purely by deeds from Filoon to the Chanis and from Filoon to Starr, each describing the portion of Lot 46 that was conveyed to them. No plan depicting the division was ever filed or attempted to be filed with the registry, and no approval was sought from the local planning board. The ZBA asserts that this was in error and that the division of Lot 46 was subject to the Subdivision Control Law, which had been adopted by the City of Brockton in 1957. Under § 81P of the Subdivision Control Law, the ZBA argues that Filoon was required to obtain an endorsement of an Approval Not Required (ANR) plan from the planning board and then file said plan with the registry. G.L. c. 41, § 81P. The ZBA contends that by failing to follow this mandatory procedure, the deeds did not create a separate lot and the Locus was created in violation of the Subdivision Control Law.
The Subdivision Control Law, G.L. c. 41, §§ 81K81GG, was enacted in 1953, replacing prior planning law. Except for Boston, it is in effect in every city and town which has accepted it. General Laws c. 41, § 81O, prohibits subdivision of land without approval of a plan by a local planning board. The term "subdivision" is defined in G.L. c. 41, § 81L:
"Subdivision" shall mean the division of a tract of land into two or more lots and shall include resubdivision, and, when appropriate to the context, shall relate to the process of subdivision or the land or territory subdivided; provided, however, that the division of a tract of land into two or more lots shall not be deemed to constitute a subdivision within the meaning of the subdivision control law if, at the time when it is made, every lot within the tract so divided has frontage on (a) a public way or a way which the clerk of the city or town certifies is maintained and used as a public way, or (b) a way shown on a plan theretofore approved and endorsed in accordance with the subdivision control law, or (c) a way in existence when the subdivision control law became effective in the city or town in which the land lies, having, in the opinion of the planning board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of the land abutting thereon or served thereby, and for the installation of municipal services to serve such land and the buildings erected or to be erected thereon. Such frontage shall be of at least such distance as is then required by zoning or other ordinance or by-law, if any, of said city or town for erection of a building on such lot, and if no distance is so required, such frontage shall be of at least twenty feet. Conveyances or other instruments adding to, taking away from, or changing the size and shape of, lots in such a manner as not to leave any lot so affected without the frontage above set forth, or 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, shall not constitute a subdivision.
G.L. c. 41, § 81L (emphasis added). Section 81L specifically exempts from the definition of "subdivision" the splitting of a parcel of property where each divided lot has adequate frontage under the bylaw and is located on a public way. A division of land does not require approval of the planning board if it falls under this exception. G.L. c. 41, § 81P.
The applicable ordinance in Brockton at the time of the 1964 conveyances of the division of Lot 46 was the 1963 Zoning Ordinance. Section 11A of the 1963 Zoning Ordinance applied to subdivisions and required a minimum frontage of 100 feet and a depth of 100 feet. Section 11C addressed minimum lot size on existing ways and required that each lot have a minimum frontage of 50 feet and a depth of 80 feet, unless the original lot had frontage over 140 feet, in which case the minimum frontage required was 70 feet. It is undisputed that Lot 46 had frontage on a public way, Braemoor Road, when it was divided in 1964. The original Lot 46 had 115 feet of frontage. When split evenly in half, each portion of Lot 46 retained 57.5 feet of frontage and a depth of 141.46 feet. Because the original frontage was less than 140 feet, the minimum required frontage for the divided lots remained 50 feet. The frontage and depth of the divided lots satisfied the minimum requirements under § 11C of the 1963 Zoning Ordinance. Since Lot 46 was located on an existing public way, the division of Lot 46 was not a "subdivision," and § 11A of the 1963 Zoning Ordinance, governing subdivisions, was not implicated.
Since Lot 46 is not considered a subdivision, its division did not require planning board approval under G.L. c. 41, § 81O. Endorsement of a plan for the division of property that is not a subdivision (commonly referred to as an Approval Not Required or ANR plan) is governed by G.L. c. 41, § 81P. Section 81P states:
Any person wishing to cause to be recorded a plan of land situated in a city or town in which the subdivision control law is in effect, who believes that his plan does not require approval under the subdivision control law, may submit his plan to the planning board of such city or town in the manner prescribed in section eighty-one T, and, if the board finds that the plan does not require such approval, it shall forthwith, without a public hearing, endorse thereon or cause to be endorsed thereon by a person authorized by it the words ''approval under the subdivision control law not required'' or words of similar import with appropriate name or names signed thereto, and such endorsement shall be conclusive on all persons. Such endorsement shall not be withheld unless such plan shows a subdivision. If the board shall determine that in its opinion the plan requires approval, it shall within twenty-one days of such submittal, give written notice of its determination to the clerk of the city or town and the person submitting the plan, and such person may submit his plan for approval as provided by law and the rules and regulations of the board, or he may appeal from the determination of the board in the manner provided in section eighty-one BB. If the board fails to act upon a plan submitted under this section or fails to notify the clerk of the city or town and the person submitting the plan of its action within twenty-one days after its submission, it shall be deemed to have determined that approval under the subdivision control law is not required, and it shall forthwith make such endorsement on said plan, and on its failure to do so forthwith the city or town clerk shall issue a certificate to the same effect. The plan bearing such endorsement or the plan and such certificate, as the case may be, shall be delivered by the planning board, or in case of the certificate, by the city or town clerk, to the person submitting such plan. The planning board of a city or town which has authorized any person, other than a majority of the board, to endorse on a plan the approval of the board or to make any other certificate under the subdivision control law, shall transmit a written statement to the register of deeds and the recorder of the land court, signed by a majority of the board, giving the name of the person so authorized.
The endorsement under this section may include a statement of the reason approval is not required.
G.L. c. 41, § 81P (emphasis added). Because Lot 46 had adequate frontage and existed on a public way, had Filoon submitted an ANR plan to the planning board, she would have been entitled to an ANR endorsement under § 81P. See Cricones v. Planning Bd. of Dracut, 39 Mass. App. Ct. 264 , 267 (1995), citing Eno & Hovey, Real Estate Law § 24.3 (3rd ed. 1995) ("[I]f a plan does not show a 'subdivision', a board may-or rather must-endorse the plan as not requiring subdivision approval, so that it may be recorded"). The ZBA contends that this provision required Filoon to submit an ANR plan to the planning board to be endorsed in order to constitute a valid division of Lot 46, and, because she failed to do so, the division was illegal. The language of § 81P and the purpose of the statute do not support such a requirement.
Section 81P is permissive. It begins by stating: "Any person wishing to cause to be recorded a plan of land" in a city in which the subdivision control law is in effect who believes that said plan does not require planning board approval "may submit his plan". G.L. c. 41, § 81P (emphasis added). These terms indicate that one is not required to submit an ANR plan to the planning board for an endorsement in order to divide property not considered a subdivision. Rather, § 81P provides the mechanism for obtaining approval of an ANR plan if one wishes to record such a plan. In this way, § 81P differs from G.L. c. 41, § 81O, which states: "No person shall make a subdivision of any land in any city or town in which the subdivision control law is in effect unless he has first submitted to the planning board of such city or town for its approval of a plan of such proposed subdivision." G.L. c. 41, § 81O (emphasis added). Ordinarily, the term "may" is a permissive term which does not impose a mandate, but simply authorizes an act, School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70 , 81 (1982), while "[t]he word 'shall' is ordinarily interpreted as having a mandatory or imperative obligation" Hashimi v. Kalil, 388 Mass. 607 , 609 (1983).
When interpreting the intent of the Legislature every word of a legislative enactment is to be given force and effect and is considered in the context of the language of the entire statute, not just the sentence or section in which it is found. Phillips v. Equity Residential Mgt., L.L.C., Mass. No. SJC-12247, slip op. at 11-12 (Oct. 25, 2017), citing Commonwealth v. Hanson H., 464 Mass. 807 , 810 (2013); Chatham Corp. v. State Tax Comm'n, 362 Mass. 216 , 219 (1972). If the Legislature desired to require a planning board's endorsement of an ANR plan prior to any splitting of property not considered a "subdivision," it would have used more compulsory language. By choosing not to insert such terms into G.L. c. 41, § 81P, the Legislature intended the submittal of an ANR plan to a planning board to be necessary only in the case where someone seeks to have a plan dividing certain property recorded at the registry, but not necessary to divide property that does not meet the definition of "subdivision." Moreover, the definition of "subdivision" in G.L. c. 41, § 81L, explicitly provides that lots may be altered by "conveyances or other instruments." Thus, an endorsed ANR plan that is recorded is not the only method that lots may be changed or divided, provided that the resulting lots contain adequate frontage.
This interpretation is consistent with the purpose of this section of the Subdivision Control Law. Section 81P was added to "alleviate the difficulty encountered by registers of deeds in deciding whether a plan showing ways and lots could lawfully be recorded under this provision without the approval of the local planning board." Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599 , 602 (1980), citing 1953 House Doc. No. 2249, at 55. The sponsors of the legislation noted "that it seemed best to require the person who intends to record such a plan and who contends that it is not a 'subdivision' within the meaning of the law, because all of the ways shown on the plan are already existing ways, to submit it to the planning board, and if the board agrees with his contention, it can endorse on the plan a statement that approval is not required, and the plan can be recorded without more ado. Provision is made for settling the question as summarily as possible in the unlikely event that there is a disagreement over the necessity of approval." Id. at 602 n. 5. In other words, the purpose of § 81P was to help the registers of deeds ascertain if a plan could be recorded, not to change the definition of when a parcel could be divided without constituting a "subdivision" under the Subdivision Control Law.
Accordingly, the splitting of Lot 46 into two lots, each with over 50 feet of frontage on an existing public way known as Braemoor Road, did not constitute a subdivision and Filoon would have been entitled to receive an endorsed ANR plan from the planning board had she submitted a plan. However, Filoon was not compelled to submit a plan in order to split Lot 46 into the northerly and southerly portions. The Locus created by the Filoon Deed satisfied the 1963 Zoning Ordinance, then in effect, with more than sufficient frontage and lot depth and was, thus, a conforming, buildable lot.
II. Merger
The ZBA argues that even if the division of Lot 46 was valid, the Locus is not a separate buildable lot because under the common law "merger doctrine" it merged with Lot 47 for zoning purposes when both lots came under common ownership and control by the Starrs in 1964, resulting in the loss of the Locus' grandfather status. The merger doctrine provides that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities. Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963). "The statutory grandfather provision contained in G.L. c. 40A, § 6, incorporates this doctrine by providing protection from increases in lot area and frontage requirements only to nonconforming lots that are not held in common ownership with any adjoining land. While a town may choose to adopt a more liberal grandfather provision, it must do so with clear language." Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266 , 268-269 (2008). RCA and Annese contend that the Locus did not lose its grandfather status because § 27-12 of the BZO provides for far more liberal grandfathering for such commonly owned lots than does § 6.
General Laws c. 40A, § 6 states in relevant part:
Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.
G.L. c. 40A, § 6 (emphasis added). Section 6 provides grandfather protection for lots held separately at the time of the adoption of the bylaw that renders such lots nonconforming. Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003). The exception is not available to lots held in common ownership with an adjoining lot, which may be combined, or merged to reduce or eliminate nonconformity. Sorenti, 345 Mass. at 353. The common ownership requirement in G.L. c. 40A, § 6, represents a statutory codification of a principle of long-standing application in the zoning context: a landowner will not be permitted to create a dimensional nonconformity if they could have used their adjoining land to avoid or diminish the nonconformity. Planning Bd. of Norwell v. Serena, 406 Mass. 1008 , 1008 (1990). The Locus conformed to requirements of the 1963 Zoning Ordinance when it was replaced with the current BZO in 1968. The BZO's requirement of a minimum lot area of 30,000 square feet and a minimum frontage of 175 feet for properties located in the R-1B District rendered the Locus nonconforming. The Locus does not qualify for protected status under §6 because the nonconforming pre-existing Locus and Lot 47 were in common ownership starting in 1964. Based solely on the provisions of G.L. c. 40A, § 6, the merger doctrine would appear to apply to the Locus and preclude it from grandfather protection.
Section 6 is not the end of the grandfather analysis. "The statute sets the floor of grandfather protection, but a municipality is free to enact grandfather provisions that provide even greater protection than found in the statute." Dalkouras v. Brockton Zoning Bd. of Appeals, 20 LCR 10 , 14 (2012), citing Rourke v. Rothman, 448 Mass. 190 , 191 (2007). Section 27-12 of the BZO provides for grandfather protection greater than that of § 6. Section 27-12 states:
A single family structure may be constructed on any existing lot of record in any residential zone if such lot has less than the minimum area or frontage, or both, required for building lots in the residential zone in which it is located; provided the following conditions exist or are met.
1. No structure shall be erected on any nonconforming lot if adjacent to the lot in question there exists vacant land, in the same record ownership at the time of enactment of this chapter, which would create a conforming lot if such vacant land were combined with the lot deficient in area, or frontage, or both.
2. No structure shall be erected on a lot containing less than the required area or frontage, or both, unless the owner can demonstrate that such structure will have a minimum side yard of six (6) feet on interior lots and ten (10) feet on the side yard adjacent to any street.
3. No structure shall be built on any lot of less than the required area or frontage, or both, unless the minimum front and rear yards for lots in the residential zone where such lot is located are maintained.
4. All lots, regardless of size, shall have provision for off-street parking for at least one (1) vehicle.
5. All lots shall have a minimum frontage of fifty (50) feet and a minimum area of five thousand (5,000) square feet.
Exh. 8 (emphasis added). Section 27-12 of the BZO is more liberal than § 6, requiring only that the lot at issue be "an existing lot of record," not be held in common ownership with a vacant adjoining lot, and meet other dimensional conditions. When § 27-12 was enacted in 1968, "an existing lot of record" meant a lot existing and recorded as of the effective date of the Ordinance amendment. "In determining grandfather protection, the proper deed or plan to examine is the one immediately prior to the enactment of the zoning regulations which created the nonconformity." Dalkouras, 20 LCR at 15, citing Adamowicz v. Town of Ipswich, 395 Mass. 757 , 762 (1985). Thus, the proper inquiry for protection under § 27-12 of the BZO is the status of the Locus immediately prior to the 1968 zoning amendment that created the nonconformity. If at that time the Locus fulfilled the requirements of § 27-12, then the Locus is protected from future zoning changes and the merger doctrine.
The BZO does not define "existing lot of record" or place any limitations on whether the "existing lot of record" can be of record only by a recorded plan. Generally, the term "of record" means that the lot must be reflected in some instrument recorded in the registry, such as in a recorded plan or deed. See Jones v. Zoning Bd. of Appeals of Brockton, No. 10-P-1602, 2011 WL 5829080 at *1 (Mass. App. Ct. Nov. 21, 2011); Correia v. Brockton Zoning Bd. of Appeals, 12 LCR 32 , 34 (2004). "Of record," partnered with the fact that the BZO does not restrict the type of recorded instrument by which the lot was created, supports the conclusion that a "lot of record" is not limited to one created by an endorsed and recorded ANR plan. Here, the Locus was created by the Filoon Deed in 1964 to Jack Starr. It was next conveyed from the Starrs to the Mullares in 1965, who did not re-convey the Locus until 1973, after the 1968 BZO became effective. These deeds were both recorded with the registry and describe the metes and bounds of the Locus separately from the description of Lot 47. Exhs. 5-6. The adjoining land, Lot 47, was not a vacant lot in 1968, having a house existing on it since 1952. Exh. 2. The Locus meets the minimal dimensional requirements of § 27-12, with frontage of 57.5 feet (more than the minimum frontage of 50 feet) and a lot area of 8,132 square feet (more than the minimum area of 5,000 square feet). Given its size and frontage, the Locus can satisfy all the other conditions of a "lot" as specified in § 27-12 with a reasonable size and placement of a residence and driveway.
The parties disagree on the interpretation of the word "lot" as used in the BZO. The ZBA submits that the divided parcel for which grandfather protection is sought must meet the definition of "lot" in § 27-61 prior and in addition to meeting the definition of "an existing lot of record" in § 27-12. Section 27-61 of the BZO defines "lot" as: "A parcel of land identical in ownership throughout, bounded by other lots or by streets, which is designed by its owner to be used, developed or built upon as a unit." Exh. 8. The ZBA argues that the use of the Locus and Lot 47 together and the fact that the two parcels have not been separately assessed since 1966 indicates that they were designed and used as a single unit, and, therefore, the two parcels comprise a "lot" as defined by § 27-61. The ZBA asserts that because the owners of the Locus failed to preserve its independent identity separate from Lot 47, the term "lot of record" in § 27-12 does not apply to the Locus alone, but to both the Locus and Lot 47. RCA and Annese argue that since the Locus was described separately from Lot 47 in the Filoon Deed and Starr Deed, the Locus meets the requirements of a "lot of record" under § 27-12 of the BZO and is grandfathered.
The definition of "lot" in § 27-61 does not control over other sections of the BZO. The term "lot" as used in § 27-12, being more specific language than the general language of "lot" as defined in § 27-61, controls. Correia, 12 LCR at 34, citing Morey v. Martha's Vineyard Comm'n, 409 Mass. 813 , 819 (1991). Moreover, while the ZBA argues that the Locus and Lot 47 have been designated as a unit, there is nothing in the BZO to indicate how an owner would "designate" the use of two lots as one parcel of land. See id. The owners of the Locus and Lot 47 have never filed any document of record designating them as one parcel or made any formal declaration to that effect. There has never been a recorded plan showing the Locus and Lot 47 as a single parcel. The Locus and Lot 47 have always been described separately in recorded deeds to subsequent owners. Cf. Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 130-31 (1972) (separate metes and bounds descriptions eliminated in favor of one metes and bounds description for the two lots). The owners merely used both lots together for purposes of serving their residence. Though the Locus and Lot 47 began to be assessed together in 1966, the change in assessment was made at the direction of the Board of Assessors and not at the owners' urging.
No inference can be made that the owners intended to combine the two lots as a result of the Assessor's actions. The Locus is an "existing lot of record" that satisfies, or can satisfy upon the building of a structure, the grandfather provision of § 27-12.
Based on the foregoing analysis of the applicability of the Subdivision Control Law and the grandfather provision in the BZO, the ZBA's Decision is not entitled to deference. The ZBA erroneously interpreted the plain language of the grandfather provision in the BZO in deciding to uphold the Building Inspector's denial of the building permit for the Locus. See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 475 (2012) (an incorrect interpretation of a statute is not entitled to deference); Drummey v. Town of Falmouth, 87 Mass. App. Ct. 127 , 130 (2015) (court reversing ZBA decision based on incorrect interpretation of bylaw). It is correct that, ordinarily, the purpose of zoning laws is to promote the creation of conforming lots and to preclude an owner from receiving grandfather protection of a nonconforming lot unless his adjacent land is added to minimize the nonconformity. This does not mean, however, that a municipality cannot offer such protection under particular circumstances. The object of § 27-12 was to offer more substantial protection for certain nonconforming lots in the City of Brockton than was provided for under G.L. c. 40A, § 6.
The ZBA Decision offers no genuine discussion of § 27-12 of the BZO, nor does it analyze that section as it relates to the merger doctrine. The Decision does not attempt to construe the term "lot" as defined in § 27-61, as it applies to the Locus, in harmony with the term "existing lot of record" as it appears in § 27-12. The Decision seems to rely on the 1963 Zoning Ordinance and the determination that the splitting of Lot 46 constituted a "subdivision" to hold that the Locus failed to satisfy the requirements of § 11A, and was never an independent buildable lot. The definition of "subdivision" in the Subdivision Control Law, and its exceptions, is wholly ignored by the ZBA in its assessment. The Decision was made in an "unreasonable, whimsical, capricious, and arbitrary manner," and is not due deference. Shirley Wayside Ltd. Partnership, 461 Mass. at 474-475. Section 27-12 provides for grandfather protection of nonconforming lots held in common ownership with other adjacent lots under certain conditions.
The Locus meets those conditions. It continues to retain its grandfather status, and is a buildable lot today.
CONCLUSION
For the foregoing reasons, the Plaintiffs' Motion for Summary Judgment is ALLOWED and the Defendants' Motion for Summary Judgment is DENIED. Judgment shall enter annulling the Decision and remanding the matter to the ZBA to approve the issuance of the building permit for a residence, pursuant to the conditions set forth in § 27-12 of the BZO, consistent with this Memorandum and Order.
SO ORDERED.
RCA DEVELOPMENT, INC. and MICHELLE ANNESE v. KENNETH GALLIGAN, MICHAEL WILLIAMS, STEPHEN BERNARD, JEFFREY CHARNEL, GARY KEITH, and ROBERT PELAGGI, as they are Members of the CITY OF BROCKTON ZONING BOARD OF APPEALS.