MISC 17-000553

July 10, 2018

Middlesex, ss.



Giannelli Management and Development Corp. holds record title to the property known as 65 Central Street in Malden (the "Property"). Giannelli seeks a declaration that the Property consists of two separate but adjacent 5,000 square-foot parcels, as shown on an 1873 plan on record at the Middlesex County Southern District Registry of Deeds (the "Registry"). According to Giannelli, one of those lots enjoys protection under G.L. c. 40A, § 6, and is thus a buildable nonconforming lot under the zoning provisions of the Code of the City of Malden (the "Ordinance"). The City's position is that the Property is one, 10,000 square-foot parcel, as shown on a 1971 plan on file with the Registry, and therefore pieces of the Property don't enjoy § 6 protection.

The case comes before the Court on the parties' cross-motions for summary judgment. Here are the undisputed facts: There are two plans at the Registry that depict the Property. The first is an August 1873 plan entitled "Plan of Lots at Linden Highlands, Massachusetts" (the "1873 Plan"). The 1873 Plan depicts the Property as two abutting lots on the northwest corner of Central Avenue and Winchester Street in Malden. The lots are numbered "No. 263" and "No. 264," they are adjacent, and each is 5,000 square feet. No. 263 is the corner lot, and No. 264 abuts No. 263 to the west.

The City commenced a taking of Central Street in 1971. In connection with that taking, the City recorded a plan dated February 4, 1971 named "Plan Showing Land Taken For the Laying Out of Central Avenue, Malden, Mass." (the "1971 Plan"). The 1971 Plan depicts the Property as being one lot owned by "Lindgren." The 1971 Plan is the latest plan on record that depicts 65 Central Street.

The Property was conveyed five times before Giannelli took title to it in 2016. In each of those conveyances, the Property was conveyed as one parcel, Lots Nos. 263 and 264 together.

The Property's description in the second through fifth deeds is identical:

A certain parcel of land with the buildings thereon situated in that part of said Malden called Linden Highlands and being shown as lots numbered 263 and 264 on a Plan of Lots at Linden Highlands, Massachusetts, [surveyed] by Veazie Brothers, August 1973, and recorded with Middlesex So. Dist. Deeds, Plan Book 23, Plan 21 and bounded: Easterly by Central Avenue, 100 feet, Southerly by Winchester Street, as shown on said plan, 100 feet, Westerly by a portion of lot numbered 267, as shown on said plan, 100 feet; and Northerly by lot numbered 265, as shown on said plan, 100 feet. Said premises contains about 10,000 square feet and are the same premises described in a deed from Robert Howlett to Olaf S. Lindgren, dated April 15, 1908, and recorded with Middlesex So. Dist. Deeds, Book 3373, 433.

Giannelli's deed is dated September 29, 2016, and is recorded at the Registry in Book 68157, Page 29. Attached to that deed as "Exhibit A" is a description of the Property that is almost identical to the one quoted above, including the phrase that the Property is a "parcel of land . . . being shown as lots numbered 263 and 264." At the time Giannelli brought suit, the "No. 263" side of the Property was improved with a single-family dwelling, and the "No. 264" side was improved with a garage and a water service line.

This fight turns on how the Ordinance defines a "lot." While c. 40A, § 6 provides certain "grandfathering" protections to lots that municipalities have decided are too small to be built upon, § 6 gives municipalities substantial leeway in defining what constitutes a "lot" for purposes of their zoning laws and, by extension, § 6. See Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286 , 289-90 (1979) (suggesting that municipalities may determine how to define "lot" by title sources or plans, and courts will follow that definition before assuming two neighboring lots are one for zoning purposes). Some municipalities define "lot" by what a deed says, others look to recorded plans, and others allow a choice between both. See, for example, Lindsay v. Board of Appeals of Milton, 362 Mass. 126 , 130-31 (1972) (where the zoning bylaw defined lot as "a single area of land in one ownership . . . [laid out] by metes [and] bounds . . . in a recorded deed or on a recorded plan," reference was to the most recently recorded deed or plan). (There are also doctrines that have developed under § 6 as to when abutting lots "merge" for purposes of zoning, but the Court doesn't need to ponder merger in this case.)

The Ordinance defines "lot" in its chapter 12, § 800.6.2.43:

A parcel or area of land, under one (1) ownership after October 1, 1962, the dimensions and extent of which are determined by the latest duly recorded or registered plan, by the latest endorsed plan of a subdivision of which the lot is a part, or by the latest endorsed ". . . Approval Not Required. . ." plan as described in the Malden Planning Board Subdivision Regulations.

Of the various plans described in § 800.6.2.43, the "latest duly recorded . . . plan" for the Property controls the outcome here. It is undisputed that the 1971 Plan is the latest such plan, and it combines Lots Nos. 263 and 264. The Court thus holds that the Property is one 10,000 square-foot "lot" under the City's current zoning Ordinance.

Giannelli offers a different definition of "lot." It claims that the source of title for a "lot" determines its status under § 6, and since the earliest deed for Lots Nos. 263 and 264 refers to the 1873 Plan, two "lots" make up the Property. Giannelli doesn't provide any authority for its definition. Giannelli's definition departs from the text of § 800.6.2.43, and Giannelli doesn't point to any language in § 6 that suggests that Giannelli's definition supersedes what's in § 800.6.2.43. Giannelli seems to argue that its definition has to be right because it yields a "fairer" outcome, as § 800.6.2.43 gives a property owner no control over who prepares and records the "latest" plan for a property. After all, it's undisputed the City had sole control over the preparation and recording of the 1971 Plan, with no input from Giannelli's predecessor in interest.

While the Court can imagine situations where a municipality's definition of "lot," coupled with its power to record its own plans, might undercut § 6's protections for lots that become subject to new zoning requirements, that's not the case here. Long before and long after the recording of the 1971 Plan, Giannelli and its predecessors in interest had been selling Lots Nos. 263 and 264 as one parcel. Giannelli also was on notice of § 800.6.2.43's definition of "lot" at the time it bought the Property. The Court thus perceives no unfairness in the City's reliance on the 1971 Plan for purposes of determining, under the current Ordinance, the size of Giannelli's "lot."

The Court thus ALLOWS the City of Malden's motion for summary judgment against Giannelli, and DENIES Giannelli's cross-motion for summary judgment. Judgment shall enter accordingly.