Home MICHAEL A. SMITH, Executor under the will of Judith A. Smith v. NANCY M. COLE, ANTHONY HIGGINS, JR., LAWRENCE SCHUBERT, and JULIUS LOWE, as they are Members of the West Tisbury Zoning Board of Appeals; and JOSEPH K. TIERNEY, JR., as he is the Building Inspector of the Town of West Tisbury.

MISC 18-000230

May 15, 2019

Dukes, ss.



Coverture is the legal doctrine, ostensibly abolished in the mid-nineteenth century, that treated two people as one legal persona upon marriage.

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything . . . . For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself. . . .

William Blackstone, Commentaries on the Laws of England 430 (1765). West Tisbury's zoning authorities appear to want to revive coverture in their corner of Martha's Vineyard, at least for purposes of determining under their zoning bylaws the status of small "grandfathered" lots. This Court declines the invitation.

Here's the background of this case: plaintiff Michael Smith purchased property in West Tisbury in 1984. This Decision calls that property Lot 68. Judith Smith, Michael's wife, purchased a property next door, Lot 69, in 1996. (As there are two Smiths in this case, this Decision will refer to them by their first names.) Under the Town of West Tisbury's current zoning bylaws, Lots 68 and 69, individually and combined, don't have enough area to meet the bylaws' minimum-size lot requirements, but each lot was "grandfathered" from those requirements so long as each lot remained in separate ownership.

Judith died in 2000. In her will she devised Lot 69 to Michael, and appointed Michael the executor of her estate. In 2014, with Judith's estate not yet closed, Michael sold Lot 68. In October 2017, Michael (in his capacity as the executor of Judith's estate) applied to defendant Joseph K. Tierney, Jr., the Town's Building Inspector, for a permit to build a single-family residence on Lot 69. Michael intended to sell the land and the anticipated permit to pay the expenses of administering Judith's estate. Inspector Tierney denied Michael's application, reasoning that (for zoning purposes) Lot 69 merged with Lot 68 when Judith purchased it – Michael and Judith being husband and wife – and thus the Inspector couldn't issue a building permit solely for Lot 69. West Tisbury's Zoning Board of Appeals upheld the Inspector's denial, adopting the Inspector's reasoning. Michael appealed the Board's decision to this Court.

The parties appeared for trial on February 28, 2019. A single witness appeared, Michael. Having heard his testimony, having seen the parties' evidence, having reviewed their stipulations of fact and their briefs, and having heard the arguments of counsel, this Court finds the facts described above as well as these:

1. Lots 68 and 69 came into existence in 1967. Lot 68 is 1.7 acres in size. Lot 69 is 1.04 acres. As of 1967, both lots had enough acreage and frontage along a nearby street, Longview Road, to entitle their owners to build one single-family residence on each lot. And shortly after creation of the lots, each was sold to different, unrelated owners.

2. In February 1984, Michael purchased Lot 68. There was a single-family residence on Lot 68 at the time Michael bought the property. He bought Lot 68 with his own funds and a bank loan for which Michael was solely responsible. Michael granted his bank a mortgage on Lot 68.

3. As of 1984, Michael was the assistant general manager of a professional hockey team, the Winnipeg Jets. At the time, Michael was "living out of a suitcase," according to his trial testimony. He viewed Lot 68 as an investment. He rented the property in the summertime, and spent only two weeks there annually. Michael paid all bills and expenses relating to Lot 68 (including all taxes, mortgage payments, utilities and insurance) out of his own funds, and did so during the entire time he owned the property.

4. In June 1985, Michael married Judith, a resident of Minnesota. It was Judith's second marriage; she had a son, Jason, from her first marriage. But Michael still worked for the Jets, and he still lived out of a suitcase. Judith thus kept her Minnesota home. She also kept her financial life separate from Michael's. For the entirety of their marriage, Michael and Judith had no joint accounts and no joint investments. Judith never obtained a legal interest in Lot 68, nor did she make herself responsible for the mortgage on Lot 68. As was Michael's practice before he married Judith, the couple spent only two weeks each year on Lot 68.

5. In 1986, the Town of West Tisbury amended its zoning bylaws. The amendment required properties in Lot 68 and 69's zone to be a minimum of three acres in size in order for a single-family residence to be built on them as of right. The Town's bylaws grandfathered from the 1986 amendment, however, undersized but previously buildable parcels like Lots 68 and 69 provided that they remained in separate ownership.

6. In 1988, Michael became the general manager of the Jets, but his itinerant life continued. In November 1991, Judith left Minnesota and moved to Lot 68, which Michael still owned in his own name. After Judith's move, Michael started treating Lot 68 as his principal residence, and spent more than just summer vacations there. But he still spent much of his life on the road.

7. After moving to Lot 68, Judith started a business selling antiques. She found and leased commercial space for her business. But within her first year as a West Tisbury resident, Judith learned that she had a brain tumor. She had surgery in 1992 to remove the tumor, but nine months later her doctor diagnosed Judith with Parkinson's disease. The Parkinson's diagnosis "shook Judith to the core," according to Michael. It caused Michael and Judith to discuss the possibility of having Jason move to West Tisbury so that he could assist Judith with her care, as Michael continued to be away from Lot 68 for large parts of the year.

8. In 1994, Michael began working as a scout for another professional hockey team, the Chicago Black Hawks, a position that continued to keep him away from Lot 68. In early 1996, Judith told Michael that she had made an offer to purchase Lot 69. At the time, Lot 69 was vacant and heavily wooded. Judith hadn't consulted with Michael about her offer, and she didn't ask his permission before making it. The only thing Judith told Michael is that the Lot's price was $82,500, and she was $10,000 short. Michael gave Judith that amount.

9. Judith subsequently bought Lot 69 in her own name, free and clear of any mortgage. Judith had legal counsel in connection with the purchase. Michael didn't hire counsel at the time, nor did he receive any legal advice concerning how West Tisbury's zoning bylaws might treat Lots 68 and 69 if Michael owned Lot 68 and Judith simultaneously owned Lot 69. At trial, Michael didn't recall any discussions with Judith about that issue.

10. In 1997, Michael became the assistant general manager of the Toronto Maple Leafs. He continued to travel extensively. But in November 1997, he and Judith received devastating news: Judith had stage IV colon cancer. Whatever plans Judith had for Lot 69 were set aside as, in Michael's words, she "just tried to stay alive." Lot 69 was left untouched. No one attempted to landscape Lot 69, incorporate it into Lot 68, or change Lot 69 in any way. It remained vacant and heavily wooded.

11. In September 2000, Judith signed her last will. She appointed Michael (now general manager of the Black Hawks) as the executor of her estate, and requested that he and any other executor "receive reasonable compensation and reimbursement for their reasonable expenses." Judith's will gives her executor the power to sell the property of her estate, to pay "debts and legacies," to "pay any expenses involved in the delivery of any articles of tangible personal property and to charge the same as an expense of administration." The will also directs that all "funeral and administrative expenses be paid as soon after my death as may be practicable." Finally, Judith's will left "any real estate I may own at the time of my death" to Michael, if he survived Judith.

12. Judith died in October 2000. Michael personally paid Judith's funeral expenses of approximately $9,000. Judith's estate hasn't reimbursed him for those expenses. Further, at the time of her death, Judith's lease for her antique shop had three years and eight months to run, at an annual rental of $33,000. Michael personally paid $121,000 in rent while the shop's inventory was gradually sold off. Those sales didn't cover the shop's rent and its other expenses. Judith's estate hasn't reimbursed Michael for any of his "shop" payments.

13. Michael also personally paid the expenses of storing Judith's personal property, the expenses of probating her estate, and the expenses of maintaining her estate's property. Michael personally has paid approximately $1,200 per year in real estate taxes on Lot 69 since 2000, Association dues for the property, $8,395 for surveying Lot 69, $1,400 to probate Judith's estate, and (so far) over $53,000 to litigate this case. Judith's estate hasn't reimbursed Michael for any of these costs.

14. In July 2006, Michael petitioned the Dukes County Probate and Family Court for probate of Judith's will and his appointment as executor of her estate. The court allowed the will, and Michael posted a required bond in August 2006. As of that time, Lot 69 was the only asset in Judith's estate. As of the time of trial, her estate hadn't been formally closed.

15. In 2014, Michael sold Lot 68 and paid off its mortgage.

16. In October 2017, Michael in his capacity as the executor of Judith's estate applied to Building Inspector Tierney for a permit to build a single-family residence on Lot 69. Michael intended to sell the land and the anticipated permit to pay the expenses of Judith's estate.

17. On October 14, 2017, Mr. Tierney denied the building permit. Tierney claimed that Lot 69 didn't have a minimum of three acres, and had lost its "grandfathered" status the moment Judith purchased it. Tierney reasoned that (a) Judith was Michael's wife at the time she bought Lot 69; (b) he owned abutting Lot 68 at the time of the purchase; and therefore (c) Lots 68 and 69 merged for all purposes under West Tisbury's zoning bylaws.

18. Section 11.2-1 of the West Tisbury Zoning Bylaws instructs that G.L. c. 40A, § 6, para. 4, sentence one, controls preexisting nonconforming properties.

19. Michael timely appealed denial of Lot 69's building permit to the defendant West Tisbury Zoning Board of Appeals under G.L. c. 40A, §§ 8 and 15. In April 2018, the Board upheld the denial. Michael timely sought from this Court under c. 40A, § 17, judicial review of the Board's decision.

20. Michael never set foot on Lot 69 until he filed his action here.


It's first important to understand the posture of this case. The only decision Michael appeals to this Court is the Board's decision upholding the Building Inspector's denial of a building permit for Lot 69. In that decision, the Board concluded that Lots 68 and 69 merged because Michael was married to Judith; Michael, at all pertinent times, owned Lot 68; Judith, while married to Michael, purchased Lot 69, an abutting lot to Lot 68; and, as a result, Lots 68 and 69 merged.

It's next important to understand the applicable standard of review. "Review of a board's decision . . . pursuant to [§ 17] involves a 'peculiar' combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeals of Billerica, 454 Mass. 374 , 381 (2009), quoting Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). The court first finds the facts de novo and gives "no evidentiary weight to the board's factual findings." Wendy's Old Fashioned Hamburgers, 454 Mass. at 381. Using the facts so found, the court analyzes the board's decision. The decision "'cannot be disturbed unless it is based on a legally untenable ground' or is based on an 'unreasonable, whimsical, capricious or arbitrary' exercise of its judgment in applying land use regulation to the facts as found by the judge." Id. at 381-382, quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970).

It's long been held that when a court reviews under c. 40A, § 17 a board's decision, the court must defer to the board's "special knowledge of 'the history and purpose of its town's zoning by-law'" and be mindful of "'local control over community planning.'" Wendy's Old Fashioned Hamburgers, 454 Mass. at 381-82, quoting Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999), and Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). Those principles play no role in this case. With respect to "grandfathering" of nonconforming lots, West Tisbury's bylaws adopt G.L. c. 40A, § 6, para. 4, sentence one, a statewide standard. That sentence provides:

Any increase in area . . . requirements of a zoning . . . 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.

It's typically a court's responsibility to determine the content and meaning of statutes, with no deference owed to how local authorities may have read them. See Britton, 59 Mass. App. Ct. at 73. Thus, with respect to the sole question this case presents – whether Lots 68 and 69 lost their "grandfathering" under c. 40A, § 6, para. 4, sentence one – this Court owes the Board's decision no deference.

The purpose of c. 40A, § 6, para. 4, sentence one is to "'freeze and minimize substandard lots,' while at the same time protect[] landowners from the hardship of not being able to use a once valid residential lot." Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236 , 239 (2001), quoting Giovannucci v. Board of Appeals of Plainville, 4 Mass. App. Ct. 239 , 242 (1976). Consistent with the statute's policy of "minimizing" substandard lots, the Appeals Court has held that if the owner of a nonconforming lot also owns an adjacent lot, local authorities may treat the lots as combined ("merged") for purposes of zoning, so as to minimize the nonconformity. See Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521 , 522 (1987).

The appellate courts have extended the merger doctrine in two ways that are relevant to this case. First, the courts have held that the doctrine includes "after-acquired" adjacent lots. In Preston, there were two vacant lots, both of which were non-conforming under Hull's zoning by-law. At the time Hull increased its minimum lot-area requirement, the lots were separately owned and thereby protected under § 6, para. 4, as separate buildable lots. But when plaintiff Preston thereafter purchased both nonconforming lots, Hull's zoning authorities properly concluded that the properties merged into a single lot for zoning purposes and thereby lost their protection under § 6. See Preston, 51 Mass. App. Ct. at 244.

In addition to applying the merger doctrine to after-acquired properties, since at least 1963, the appellate courts have expanded the doctrine beyond instances of common ownership, to those where there is "common control." See, for example, Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963); Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689 , 691 (1989) ("[t]he crux, thus, was not the form of ownership, but control: did the landowner have it 'within his power,' i.e. within his legal control, to use the adjoining land so as to avoid or reduce the nonconformity?"); DiStefano v. Stoughton, 36 Mass. App. Ct. 642 (1994). In Serena, 27 Mass. App. Ct. at 690, the court reasoned that the property owners retained ownership of two adjoining lots for purposes of § 6 because they owned one lot as co-trustees of a realty trust of which they were the sole beneficiaries and the adjoining lot as tenants by the entireties. The parties thus could use both lots "as one if they so chose." In DiStefano, 36 Mass. App. Ct. at 645, the Appeals Court pronounced that "[w]e may disregard the shell of purportedly discrete legal persons engaged in business when there is active and pervasive control of those legal persons by the same controlling person and there is a confusing intermingling of activity among the purportedly separate legal persons while engaging in a common enterprise." Last year, the Appeals Court examined Serena and DiStefano and commented that "[i]n these and similar cases, the same person who possessed the power to control the contiguous lots retained the ability to use them as he desired, including to 'use[ ] his adjoining land to avoid or diminish the nonconformity.'" Kneer v. Zoning Board of Appeals of Norfolk, 93 Mass. App. Ct. 548 , 555 (2018), quoting Serena, 27 Mass. App. Ct. at 690.

In this case, the ZBA contends that at the moment Judith bought Lot 69, both Lots 68 and 69 came under Michael and Judith's common control, solely on account of their marriage. The Court disagrees. Massachusetts law does not presume that the marriage of two people, each of whom owns property separately from the other, in and of itself results in "common control" of both spouses' lots. See G.L. c. 209, § 1 ("The real and personal property of any person shall, upon marriage, remain the separate property of such person, and a married person may receive, receipt for, manage and dispose of property, real and personal, in the same manner as if such person were sole."); DiStefano 36 Mass. App. Ct. at 645 ("Anna, merely by reason of her being Albert's wife, is not automatically a controlled person so far as the lots to which she received title are concerned."). To find control sufficient to create "common ownership" under § 6, more evidence besides a marriage certificate is needed: at the very least, there must be evidence of coordination of efforts with respect to the allegedly merged properties. See Planning Bd. of Norwell v. Serena, 406 Mass. 1008 (1990) (rescript) (lot originally owned by couple as tenants by the entirety, before being conveyed to a trust whose beneficiaries were the couple, merged with couple's remaining adjacent lot); DiStefano, 36 Mass. App. Ct. at 645 (finding common control where (a) husband's corporation conveyed lots to wife for nominal (and unpaid) consideration; (b) wife acceded to husband's control of corporation; and (c) husband filed subdivision plan for wife's lots without wife's participation); Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 (1981) (three later-merged lots originally owned by couple; couple later "checkerboarded" ownership of the lots). In all of these cases (each cited by the ZBA to this Court), a husband and wife coordinated specific actions affecting their common or individually held properties. That's what establishes "common control" for purposes of the merger doctrine.

The only fact presented at trial that suggests that Michael (for reasons apart from his marriage to Judith) obtained any control over Lot 69 at the time Judith purchased it is his providing $10,000 towards Lot 69's $82,500 purchase price. "'[W]here a transfer of property is made to one person and the purchase price is paid by another, resulting trust is presumed in favor of the person by whom the purchase price is paid. . . .'" Krasner v. Krasner, 362 Mass. 186 , 189 (1972), quoting Frank v. Frank, 335 Mass. 130 , 135 (1956). But this presumption doesn't apply as between spouses – in that instance, the law affords the couple a rebuttable presumption that a spouse's contribution is a gift. Krasner, 362 Mass. at 189. The ZBA didn't offer any evidence to rebut that presumption. The Court thus holds that Michael did not have control with Judith over Lot 69 between 1996 (when Judith purchased Lot 69) and her death in 2000.

The Court thus will enter an order that ANNULS the Board's decision and REMANDS the case to the Board for further action in accordance with this Decision. On remand, the Board "may not ignore or disagree with the specific findings" the Court has made in this case. Wendy's Old Fashioned Hamburgers, 454 Mass. at 389. The Board "may, of course, make 'such additional findings as it may wish to make' or any 'additional findings suggested by the court's decision.'" Id., quoting Massachusetts Zoning Manual, § 11.6. This Court will retain jurisdiction of this matter should there be any need for further review.