THOMAS F. WILLIAMS, Individually and as Trustee of the River Realty Trust v. THE NORWELL BOARD OF APPEALS and LOIS S. BARBOUR, PHILIP Y. BROWN, MICHAEL KIERNAN, THOMAS P. HARRISON, and DAVID TRUNER, as they are Members of the Board of Appeals of the Town of Norwell, and WILLIAM MCCAULEY, MAURA A. LAUREAU & GREGORY T. LAUREAU, and RICHARD THORNTON & DEBORAH THORNTON

INTRODUCTION

The tortured history of this case, which is set forth in more detail below, began ten years ago with the filing of a complaint by plaintiff Thomas F. Williams ("Mr. Williams"), individually and as Trustee of the River Realty Trust, on January 8, 2010. In his complaint, Mr. Williams sought to overturn a December 2009 decision ("2009 Decision") of the defendant Town of Norwell ("Town") Board of Appeals ("ZBA") that had in turn overturned a decision of the local building inspector to issue a building permit to Mr. Williams for property owned by him, as Trustee of the River Realty Trust, off of Stony Brook Lane and shown on the Town's Assessors Sheet 16D, Block 62, as Lot 62 ("Lot 62"). The matter is presently before the court on the parties' cross-motions for summary judgment, in which the sole issue raised is whether Lot 62 has the requisite lawful frontage to support the issuance of a building permit, either as a pre-existing nonconforming lot protected by G.L. c. 40A, §6 or as required by the Town's current zoning bylaw.

PROCEDURAL BACKGROUND

The Original Land Court Action

In January 2010, Mr. Williams filed his initial appeal in this matter from the ZBA's 2009 Decision reversing the building inspector's issuance of a building permit to Mr. Williams. In that decision, the ZBA found that, in the absence of a determination by the Planning Board as to the adequacy of Stony Brook Lane, a necessary prerequisite to determining whether Lot 62 had the requisite frontage on a street or way under the Town's zoning bylaw, the building permit had been issued prematurely.

On appeal, Mr. Williams contended that the 2009 Decision was incorrect as a matter of law because Lot 62 was protected under the fourth paragraph of G.L. c. 40A, §6, from application of current zoning bylaw requirements, including the requirement that private way frontage is subject to an adequacy determination by the Planning Board. Following a trial, the court (Cutler, J.) dismissed Mr. Williams' appeal on January 11, 2013, concluding that Mr. Williams had failed to prove that Lot 62 qualified for protection under G.L. c. 40A, §6, fourth par. Williams v. Norwell Bd. of Appeals, 21 LCR 25 (2013) (Cutler, J.).

First, the court concluded that Lot 62 did not meet the statutory requirements of §6, fourth par. In order to qualify for protection, §6, fourth par., requires a lot to have both complied with the then-existing bylaw requirements at the time of its creation and also to have at least fifty feet of frontage. The parties agreed that the Town's 1942 zoning bylaw ("the 1942 ZBL") was in effect at the time of Lot 62's creation. The court determined that there was no frontage requirement at all in the 1942 ZBL. 21 LCR at 26. As a result, Lot 62 would have satisfied §6, fourth par.'s element of compliance with the then-existing requirements of the 1942 ZBL.

However, §6, fourth par., also requires Lot 62 to have had at least fifty feet of frontage. Because the statute does not define "frontage" and because there was no definition in the 1942 ZBL, the court instead turned to the definitions set forth in the current zoning bylaw ("the 2009 ZBL"). Id. Under those provisions, frontage must be along a "way," and a "street or way" is defined, as relevant to this case, as a way in existence when the subdivision control law came into effect, having "in the opinion of the Planning Board suitable 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." Id. As the court noted, "it is undisputed that the Planning Board has not made such a determination with regarding [sic] the right-of-way across Lot 62." Id. at 28.

Mr. Williams then argued that the right-of-way shown on the plan entitled "Plan Of Land, Norwell, Mass. Surveyed For Esther J. MacKay May 27, 1948 S. Litchfield, C.E., N. Scituate Mass." ("1948 Plan") was Stony Brook Lane and that Stony Brook Lane provided the necessary frontage under the 1942 ZBL. Among other things, the court held that Mr. Williams had not adequately proved that Stony Brook Lane was, in fact, contiguous with the way shown on the 1948 Plan that created Lot 62. According to the court:

neither the testimony of [Mr. Williams'] expert, nor any of the numerous deeds and plans submitted into evidence, establish that the "existing right-of-way" referenced in the 1948 Deed, and indicated on the 1948 Plan, currently exists on the ground, either independently, or as part of the private way known as Stoney Brook Lane where it exists in the vicinity of Lot 62.

Id. The court concluded that Mr. Williams had failed to carry his burden of proving that Lot 62 had the necessary fifty feet of frontage required by §6, fourth par., and so had failed to establish that Lot 62 was protected from the application of the current bylaw's frontage requirements, including a determination of adequacy of Stoney Brook Lane by the Planning Board. The court upheld the 2009 Decision overturning the issuance of the building permit.

The Appeals Court Decision

Mr. Williams appealed the Land Court's January 2013 decision to the Appeals Court. On September 11, 2014, the Appeals Court issued an order vacating this court's judgment of dismissal and remanding the case for further proceedings consistent with its memorandum and order. See Williams v. Bd. of Appeals of Norwell, 86 Mass. App. Ct. 1111 , 2014 WL 4450457 (2014). The Appeals Court reversed both the finding as to the lack of evidence on the location of the way and the finding as to §6, fourth par., protection.

The Appeals Court first held, contrary to this court, that "[t]here was no evidence that 'the existing right of way' referred to in 1948 was anywhere other than the traveled way that exists today." 2014 WL 4450457 at *1. It pointed to the lack of any testimony that the right of way was in a different location, and contrasted this to (1) the building inspector's testimony that he travelled to Lot 62 over that road, (2) Mr. Williams' testimony that "he has used what is now known as 'Stony Brook Lane,' which is in the same general area as the right of way described in the deed, to access the property for some sixty years," and (3) the depiction of the way on current assessors' maps. Id.

The Appeals Court then moved on to the application of §6, fourth par. It held, again contrary to this court, that the 1942 ZBL did in fact contain a frontage requirement. According to the Appeals Court, the 1942 ZBL's lot width requirement of one hundred feet, which was to "be measured at the way line or the set back line," effectively functioned as a frontage requirement. In addition, it noted that the definition of "way" in the 1942 ZBL included a "passage." Id. at *2.

Because the ZBA had not previously done so, the Appeals Court determined that the ZBA should be given an opportunity to consider, in the first instance, whether Lot 62 met the frontage requirement of the 1942 ZBL when the lot was created in 1948. In particular, it held that:

. . . the judge's conclusion that the current definition of frontage applies to the locus was based on incorrect subsidiary findings. In considering whether the locus met the "then existing requirements" in 1948, the board will need to consider whether the locus met the then existing frontage requirement, in circumstances where the definition of way in effect when the locus was created included a passage, the deed described an existing right of way to the public way, and the existing right of way was shown on the plan crossing the locus for more than one hundred feet.

Id.

The Land Court Order Of Remand After Rescript

In an order dated June 21, 2016, this court (Cutler, J.) remanded this matter to the ZBA with instructions to reconsider the 2009 Decision in light of the findings and directives of the Appeals Court ("Order of Remand"). In particular, the ZBA was ordered to:

. . . determine whether Lot 62 qualifies for separate lot protection under G.L. c. 40A. §6, ¶ 4 in that it met the then-applicable zoning requirements for residential building lot frontage when it was created by deed in 1948. Such determination shall be made in light of the then existing Zoning By-law definition of the term "way" as including a "passage," and the Appeals' Court's conclusions that the 1948 deed for Lot 62 "described the existing right of way to the public way and the existing right of way was shown on the plan [referenced in the 1948 deed] crossing [Lot 62] for more than one hundred feet."

The ZBA Decision On Remand

On October 20, 2016, the ZBA filed its Findings And Decision Of The Norwell Board Of Appeals, File No. 09-12, with the Town Clerk ("ZBA Decision On Remand"). While the ZBA followed the mandate of the Appeals Court and the Order of Remand to determine whether or not §6 applied to the locus, it did not follow the instruction to do so in light of the definitions contained in the 1942 ZBL. The ZBA discovered during the course of remand proceedings, contrary to the parties' (and the courts') prior belief, that the 1942 ZBL was not in force when Lot 62 was created. The 1942 ZBL had been invalidated in 1947 by this court in In the Matter of Herbert A. Lincoln v. Inhabitants of the Town of Norwell, No. 9746 MISC, Land Court Department of the Trial Court, Plymouth County (Jan. 16, 1947) (Courtney, J.).

Because the Town did not enact another bylaw until 1951, the ZBA found that there was no existing bylaw in place at the time the locus was created. Instead, the ZBA referenced the definitions of "frontage" and "way" contained in the current zoning bylaw. However, while the ZBA cited those definitions (including that requiring the opinion of the Planning Board as to the adequacy of the way), it did not require such an opinion in concluding that Stony Brook Lane provided the requisite frontage for Lot 62. The ZBA stated:

With respect to Lot 62 North River, the Board finds "frontage," as it relates to "vital" access for emergency vehicles from Main Street to Lot 62 North River has been acknowledged by the Norwell Fire Chief. The Board also finds that Stony Brook Lane is a continuous and uninterrupted 'way' as defined under the Norwell Zoning Bylaw.

By a vote of two to one, the ZBA determined to "reverse its prior decision revoking the Building Permit." ZBA Decision On Remand at 13.

Complaint After Remand

On November 8, 2016, defendants Maura A. and Gregory T. Lareau ("the Lareaus") filed the present appeal of the ZBA Decision On Remand pursuant to G. L. c. 40A, §17. [Note 1] In August 2017, the Lareaus filed a motion for summary judgment. Mr. Williams filed a cross-motion for summary judgment shortly thereafter. A hearing was held on January 30, 2018. The issue presented by the motions, as is the issue now, was whether Lot 62 has sufficient frontage to qualify for a building permit, either because of the protection afforded by G.L. c. 40A, §6, or because Lot 62 qualifies under current zoning requirements. The court (Cutler, J.) issued an order denying both parties' motions on April 26, 2019 ("Order Denying Cross-Motions For Summary Judgment").

Of particular note to the resolution of the current motions for summary judgment, (1) the court rejected Mr. Williams' argument that the law of the case doctrine precluded the court from treating the 1942 ZBL as inoperative in 1948; (2) the court stated that it was unable to determine Lot 62's status immediately prior to the zoning change that rendered it nonconforming because "the record here is devoid of evidence on which to base a [G.L. c. 40A, §6] ¶ 4 evaluation;" (3) the court rejected Mr. Williams' argument that Lot 62 must be deemed to have frontage on a "private way shown on a plan approved under the provisions of the subdivision control law" under the second clause of the 2009 ZBL because of one or more plans of land along Stony Brook Lane previously endorsed as "Approval Under The Subdivision Control Law Not Required;" and (4) the court rejected Mr. Williams' argument that Lot 62 must be deemed to have frontage on a way in existence when the subdivision control law became effective in Norwell "having in the opinion of the Planning Board suitable width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of land abutting thereon or served thereby" under the third clause of the 2009 ZBL.

This matter was reassigned on April 26, 2019. After an additional period of discovery, the parties agreed that, if Lot 62 was found not to have the benefit of grandfathered rights, that decision would render the issues in an affiliated action [Note 2] challenging Mr. Williams' rights over Stony Brook Lane moot. As a result, the affiliated action was stayed pending resolution in this matter of Lot 62's grandfathered rights. Mr. Williams and the Lareaus both filed motions for summary judgment on November 15, 2019, and both parties filed oppositions to the other's motion on December 17, 2019. This time, the parties provided documentation regarding subsequent zoning bylaws and the adoption of the subdivision control law by the Town. The motions were argued at a hearing on January 22, 2020. This memorandum of decision and order follows.

STATEMENT OF UNDISPUTED FACTS

The following facts established in the record of these proceedings and pertinent to the motions are undisputed or are deemed admitted. [Note 3]

1. Mr. Williams, as Trustee of the River Realty Trust, is the record owner of a 2.076 acre parcel of land shown on Norwell Assessors Sheet 16D, Block 62, as Lot 62 ("Lot 62").

2. Lot 62 was created when Esther MacKay conveyed the parcel of land now known as Lot 62 to James Fox MacDonald, Jr., by deed dated June 11, 1948 and recorded at the Plymouth County Registry of Deeds ("the Registry") on June 21, 1948 ("the 1948 Deed"). See Appendix In Support Of Defendant Williams Motion For Summary Judgment To Lareau's Complaint After Remand ("Pl. App."), Ex. 6; Appendix In Support Of Maura A. Lareau [sic] And Gregory T. Lareau's [sic] Motion For Summary Judgment ("Def. App."), Ex. 1.

3. The 1948 Deed referenced the 1948 Plan, which depicts a "Right of Way" crossing through Lot 62. Pl. App. Ex. 7; Def. App. Ex. 2.

4. The 1948 Deed provides that Lot 62 was "[c]onveyed subject to existing right of way shown on above-mentioned [1948 Plan] of land running in a general Westerly direction from land formerly of Adam Brooks to remaining land of grantor." Pl. App. Ex. 6; Def. App. Ex. 1.

5. The 1948 Deed also provides:

[t]he granted premises are conveyed with the right to pass and repass only, over existing righty-of-way which is the Westerly continuation of the above-mentioned right-of-way running from the granted premises in a general Westerly direction to Main Street, Route 123, Norwell; the grantor hereby giving the grantee, insofar as she may, the right to pass and repass over that portion of the above-mentioned right-of-way which crosses land now or formerly of one, Hatch.

Id.

6. Mr. Williams has used what is now known as Stony Brook Lane to access Lot 62. Order Denying Cross-Motions For Summary Judgment at 6.

7. As held by the Appeals Court, "[t]here was no evidence that 'the existing right of way' referred to in 1948 was anywhere other than the traveled way that exists today." 2014 WL 4450457 at *1.

8. There was no zoning bylaw in effect in the Town in 1948, when Lot 62 was created. In the Matter of Herbert A. Lincoln v. Inhabitants of the Town of Norwell, No. 9746 MISC, Land Court Department of the Trial Court, Plymouth County (Jan. 16, 1947).

9. The Lot is presently located within a single-family residential zoning district. Order Denying Cross-Motions For Summary Judgment at 6.

10. The first Town zoning bylaw to be enacted after Lot 62 was created was approved by the Attorney General and filed with the Town's Clerk in March 1952 ("the 1952 ZBL"). Def. App. Ex. 3.

11. The Town accepted the provisions of the subdivision control law on February 9, 1953. Def. App. Ex. 4.

12. By deed dated June 15, 1953 and recorded at the Registry at Book 2281, Page 12, Lot 62 was conveyed from James F. MacDonald, Jr. to Nicholas and Christine R. Zinkowski ("the Zinkowskis"). Def. Ex. 18; Lareau Defendants' Opposition To Williams' November 15, 2019 Motion For Summary Judgment To Lareau Complaint After Remand ("Lareau Opp.") at 9.

13. The Town amended Section VII (A)(1) of the 1952 ZBL, effective on June 14, 1955 ("the 1955 ZBL"). Def. App. Ex. 5.

14. The 1955 ZBL provided that Lot 62 was in Residential District A. Def. App. Ex. 5, Section III, first paragraph. Id.

15. By deed dated September 24, 1957 and recorded at the Registry in Book 2594, Page 81, Lot 62 was conveyed by the Zinkowskis to Esther J. MacKay. Def. App. Ex. 19; Lareau Opp.at 9.

16. The Town amended its zoning bylaw in September, 1959 ("the 1959 ZBL"). Def. App. Ex. 6.

17. The 1959 ZBL provided that Lot 62 was in Residential District A. Def. App. Ex. 7 (Zoning Map Town of Norwell, Massachusetts).

18. The zoning bylaw in effect at the time of 2009 Decision by the ZBA ("the 2009 ZBL"), Pl. App. Ex. 17, was one updated on October 7, 2009.

19. The current zoning bylaw of the Town is substantially the same as the 2009 ZBL with respect to the definitions of "frontage" and "streets and ways." Def. App. Ex. 8.

20. Mr. Williams has submitted five recorded plans showing portions of Stony Brook Lane, although not the portion passing through Lot 62, and bearing the endorsement "Approval Under The Subdivision Control Law Not Required" from 1962, 1966, 1967, 2000 and 2001, respectively. Pl. App. Exs. 12-16.

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).

DISCUSSION

In his motion for summary judgment, Mr. Williams argues: (1) that the law of the case doctrine precludes the court from considering newly discovered evidence regarding the invalidity of the 1942 ZBL, with the result that the court is bound by the Appeals Court's direction that the ZBA apply that zoning bylaw to Mr. Williams' application; and, although not easy to parse, (2) that Lot 62 is entitled to grandfathered protection under G.L. c. 40A, §6 and that the ZBA was not arbitrary and capricious in relying on the current bylaw definitions to conclude that Lot 62 is a buildable lot.

In their motion for summary judgment, the Lareaus argue: (1) that Lot 62 first became nonconforming with the enactment of the 1959 ZBL, which defined "frontage" as frontage on a public way or a way approved by the Planning Board and required that lots of greater than two acres have 40 feet of frontage; (2) that, since G.L. c. 40A does not define "frontage," one looks to the town bylaw for the definition, and that, under the definition in either the 1959 ZBL or the 2009 ZBL, Lot 62 does not have frontage, as a result of which the ZBA Decision On Remand reaching a contrary conclusion is in error. For the reasons set forth below, this court agrees with the Lareaus.

The Standard Of Review

As recently described by the Supreme Judicial Court in E&J Props., LLC v. Medas, 464 Mass. 1018 , 1019 (2013), quoting Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeals of Billerica, 454 Mass. 374 , 381 (2009), which in turn quotes Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954), "[j]udicial review of a zoning board's decision pursuant to G.L. c. 40A, §17, 'involves a peculiar combination of de novo and deferential analyses.'" In Shirley Wayside Ltd. P'ship v. Bd. of Appeals, 461 Mass. 469 , 474 (2012), the Supreme Judicial Court described the process of the trial court's review as follows:

The trial judge makes his own findings of facts and need not give weight to those the board has found. See G.L. c. 40A, §17; Pendergast v. Board of Appeals of Barnstable, supra at 558-559. The judge then "determines the content and meaning of statutes and by-laws and . . . decides whether the board has chosen from those sources the proper criteria and standards to use in deciding to grant or to deny the variance or special permit application" (citations omitted). Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73-74, 794 N.E.2d 1198 (2003).

Deference is paid to "legal conclusions within the authority of the board." E&J Props., LLC, 464 Mass. at 1019, quoting Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381. "Deference is also owed to a local zoning board because of its special knowledge of 'the history and purpose of its town's zoning by-law.'" Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381, quoting Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999). "Accordingly, a judge must give 'substantial deference' to a board's interpretation of its zoning bylaws and ordinances." Id. "[J]udicial review of a board's decision 'involves a highly deferential bow to local control over community planning.'" Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 382, quoting Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003). In the end,

[w]hile a judge is to give "no evidentiary weight" to the board's factual findings, the decision of a board "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. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 487, 709 N.E.2d 798 (1999), quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639, 255 N.E.2d 347 (1970); Zaltman v. Board of Appeals of Stoneham, 357 Mass. 482 , 485, 258 N.E.2d 565 (1970). Although the judge determines the facts, it is "the board's evaluation of the seriousness of the problem, not the judge's, which is controlling. Subaru of New England, Inc. v. Board of Appeals of Canton, 8 Mass. App. Ct. 483 , 488, 395 N.E.2d 880 (1979), quoting Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 831 [sic], 821, 296 N.E.2d 716 (1973).

Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381-382.

The Relevant Bylaw Provisions

In pertinent part, Section VII (A)(1) of the 1952 ZBL, Def. App. Ex. 3, provided as follows:

A. Residential Lot Sizes in All Districts

1. The minimum lot size on which a dwelling may be erected or placed or on which any other structure may be altered for dwelling purposes shall be:

(a) one acre; or

(b) one-half acre with a frontage on a public way of 100 feet or more; provided the lot shall not be already occupied by a dwelling or other buildings except outbuildings commonly associated with dwellings.

In pertinent part, Section VII (A)(1) of the 1955 ZBL, Def. App. Ex. 5, provided as follows:

A. Residential Lot Sizes

1. The minimum lot size on which a dwelling may be erected or placed or on which any other structure may be altered for dwelling purposes shall be:

a. Residential District A - One acre with a frontage of 150 feet or more on a Public Way, or on a Way approved by the Planning Board, or two acres without such frontage.

In pertinent part, Section VII (A) of the 1959 ZBL, Def. App. Ex. 6, provides as follows:

A. Lot Sizes for Dwellings

Definitions: In subsection 1 and 2, except in "c" thereof, the word frontage shall mean frontage on a public way or on a way approved by the Planning Board.

1. The minimum lot size on which a dwelling may be erected or placed or on which any other structure may be altered for dwelling purposes shall be:

a. Residential District A. – One acre with a frontage of 150 feet or more, or two acres with 40 feet or more frontage.

The 2009 ZBL, Pl. App. Ex. 17, contains the following definitions:

FRONTAGE: A continuous and uninterrupted portion of a sideline of a way, public or private, between the sidelines of a lot in common ownership and in the case of a corner lot, between a sideline of such lot and the intersection of sidelines of ways or the midpoint of the curve connecting such sidelines.

STREET OR WAY: Any public way or any private way shown on a plan approved under the provisions of the subdivision control law or in existence when the provisions of said subdivision control law became effective in the Town of Norwell, having in the opinion of the Planning Board suitable width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of 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.

The current zoning bylaw of the Town is substantially the same as the 2009 ZBL with respect to these definitions. Def. App. Ex. 8.

Analysis Of The Bylaw

The starting point of the analysis is G.L. c. 40A, §6, [Note 4] which "is concerned with protecting a once valid lot from being rendered unbuildable for residential purposes, assuming the lot meets modest minimum area . . . and frontage . . . requirements." Rourke v. Rothman, 448 Mass. 190 , 197 (2007), quoting Adamowicz v. Ipswich, 395 Mass. 757 , 763 (1985), which in turn quotes Sturges v. Chilmark, 380 Mass. 246 , 261 (1980). As described by the Rourke court,

[t]he first sentence of G.L. c. 40A, §6, fourth par . . . . "exempts certain lots from increased zoning restrictions provided certain conditions are met . . . ." Adamowicz v. Ipswich, 395 Mass. 757 , 758 (1985). These conditions are that, "at the time of recording or endorsement," the lot (1) had at least 5,000 square feet with fifty feet of frontage, (2) "was not held in common ownership with any adjoining land," and (3) "conformed to then existing requirements." G.L. c. 40, § .

Rourke, 448 Mass. at 191-192. Whether Lot 62 satisfies these requirements is evaluated as of the date of the most recent instrument of record prior to the zoning change that rendered Lot 62 nonconforming, because "[t]he status of the lot immediately prior to the zoning change is controlling." Rourke, 448 Mass. at 192, citing Adamowicz, 395 Mass. at 762 ("the status of the lot immediately prior to the zoning change is controlling.").

Here, it is the 1959 ZBL that rendered Lot 62 nonconforming, as the prior bylaws did not impose any frontage requirement on a lot of its size (more than two acres). And the 1957 Deed is the most recent instrument of record prior to the 1959 ZBL. With respect to the status of Lot 62 just prior to the enactment of the 1959 ZBL, the Lareaus agree that Lot 62 was not held in common ownership with adjoining land when it was created in 1948, that Lot 62 conformed to then existing requirements immediately prior to the enactment of the 1959 ZBL and that it had at least five thousand square feet of area. As a result, the only issue before the court is whether Lot 62 had "less than the proposed requirement but at least . . . fifty feet of frontage." G.L. c. 40A, §6, fourth par.

Because the Zoning Act does not define "frontage," "we look to the applicable town bylaw for a definition." Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255 , 262 (2003). The Lareaus argue, applying the tools of interpretation employed by the Appeals Court in analyzing the 1942 ZBL, that the 1955 ZBL supplies such a definition in its requirement that a Residential District A have a minimum lot size of "[o]ne acre with a frontage of 150 feet or more on a Public Way, or on a Way approved by the Planning Board." According to the Lareaus, the minimum lot size requirement implicitly defines frontage as being on a public way or a way approved by the Planning Board. The other available sources to define frontage are the zoning bylaw that rendered Lot 62 nonconforming, the 1959 ZBL, or the zoning bylaw in effect at the time of Mr. Williams' application to the building inspector, the 2009 ZBL. Whichever of these three options is chosen, the result is the same. All require frontage, if on a way, then on one approved by the Planning Board. [Note 5] There is no such approval of Stony Brook Lane as it abuts Lot 62 in the record of these proceedings. That ends the analysis.

In an attempt to avoid the conclusion that Lot 62 lacks the necessary 50 feet of frontage, Mr. Williams first argues that, based on the law of the case doctrine, the provisions of the 1942 ZBL, not those from 1959 or 2009, apply. As interpreted by the Appeals Court, those provisions include the requirement of 100 feet of frontage along a way, with a way defined as including a "passage." Presumably, Mr. Williams contends that, under the 1942 ZBL, 100 feet of frontage along a passage, of which Stony Brook Lane would be an example, suffices. This argument fails for a number of reasons.

First, this court (Cutler, J.) previously rejected this argument in its Order Denying Cross-Motions For Summary Judgment. Second, if inclined to reconsider, [Note 6] this court (Roberts, J.) would reach the same result. Here, application of the 1942 ZBL was the result of a stipulation of the parties as to its applicability, not any decision of this or the appellate court, and that stipulation was clearly erroneous. Finally, the Appeals Court did not conclude that 100 feet of frontage along Stony Brook Lane complied with the 1942 ZBL but instead deferred in the first instance to the ZBA, an analysis that the ZBA did not undertake, so that there is no "decided issue" regarding the applicability of the 1942 ZBL to Lot 62 to which the law of the case doctrine might apply.

Mr. Williams next argues that the ZBA's decision is supported by the Planning Board's endorsement of at least five plans as not requiring approval under the subdivision control law, all of which depict a portion of Stony Brook Lane, but none of which show Lot 62 or Stony Brook Lane as it abuts Lot 62, even in part. According to Mr. Williams, such an endorsement implies that the Planning Board has made a determination under G.L. c. 41, §§81L and 81P, that Stony Brook Lane is "a way in existence when the subdivision control law became effective . . . 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 and served thereby."

This argument fails both because it was previously considered and rejected by this court (Cutler, J.) in its Order Denying Cross-Motions For Summary Judgment and because it is contrary to existing law. As noted by Justice Cutler, "the court cannot infer from the fact of the ANR endorsement alone that the Planning Board made any finding in 1967 that Stony Brook Lane was adequate to serve the proposed use of land 'abutting thereon or served thereby.'" Order Denying Cross-Motions For Summary Judgment at 9, citing Corrigan v. Board of Appeals, 35 Mass. App. Ct. 514 , 518 (1993) ("[T]he record is simply silent as to the route followed by the board in reaching its decision to issue a §81P endorsement. Given the variety of possible explanations, we should not infer what the planning board did - as the plaintiffs would have us do - and certainly we will not guess as to the board's reasoning.").

Mr. Williams also argues that Stony Brook Lane is a way approved by the Planning Board because, when the Town accepted the provisions of the Subdivision Control Law in 1953 and adopted rules and regulations relating to the same, Pl. App. Ex. 11, those rules and regulations provided that "[a]ll plans showing subdivisions recorded before February 1, 1952 have the same effect as approved plans." However, Mr. Williams fails to note that the same rules and regulations define a subdivision as "the division of a tract of land into two or more lots in such manner as to require provision for one or more new ways." The 1948 Plan does not show a division of land requiring a new way. It shows Lot 62 and an existing right of way. As a result, it is not a plan "showing a subdivision recorded before February 1, 1952."

In the end, there is no avoiding the requirement that the Planning Board "approve" Stony Brook Lane as it abuts Lot 62 under the 1955 ZBL or the 1959 ZBL, or render an opinion that Stony Brook Lane in that location has "suitable width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed use of land abutting thereon" in order to establish the necessary frontage under the 2009 ZBL. The ZBA's decision, which is based on the acknowledgement of the Norwell Fire Chief that Stony Brook Lane provides vital access for emergency vehicles (and not on the opinion of the Planning Board as to Stony Brook Lane's width, grades and construction), is based on a legally untenable ground and must be annulled.

CONCLUSION

Based on the undisputed facts and for the foregoing reasons, the Lareaus' motion for summary judgment is ALLOWED and Mr. Williams' motion for summary judgment is DENIED. Judgment shall enter on the Complaint After Remand annulling the ZBA's Decision On Remand and annulling Building Permit No. 14051.

SO ORDERED.