MISC 12-458615

April 16, 2013


Long, J.



In 1976, Clarissa Bowers approached her neighbor, William DeMontigny, to ask a favor. She wanted to subdivide her property so that she could keep her house on one part while her daughter, Sally Morse, built a large 5-bedroom house on the other, closest to Mr. DeMontigny. Sally’s house could not be built, however, because it would not meet setback requirements. It would be too close to the DeMontigny boundary line.

Ms. Bowers and her late husband had sold Mr. DeMontigny his land, still vacant, some years before, setting the boundary between the two. But the favor she now asked was this. Would Mr. Montigny re-adjust that boundary so that Sally could have her house? Would he agree to a land swap — a relatively small amount of land — that would give Sally enough setback and still leave him with the same amount of square footage? So far as the record shows, the proposed land swap would not benefit Mr. DeMontigny in any way. [Note 1] All the benefit accrued to Ms. Bowers and her daughter Sally, who could otherwise not build the house she wanted.

What was not disclosed was this. Mr. DeMontigny’s lot, buildable when Ms. Bowers had sold it to him, was now undersized due to changes in the zoning bylaw. Changing the boundary might potentially affect its grandfathered status.

Either unaware of this potential problem or assured by Ms. Bowers and Ms. Morse that it would not be an issue (the record does not indicate which), Mr. DeMontigny agreed to Ms. Bowers’ request. Ms. Bowers and Ms. Morse got the land swap and built Sally’s house. They even put its septic system’s leaching field on what previously had been Mr. DeMontigny’s land.

It is now the present. The DeMontigny lot, still vacant, has been sold to defendants Thomas and Tracy Gens. Prior to their purchase, the Gens were assured the lot was grandfathered and buildable. [Note 2] They applied for and received a building permit for a single family house. Plaintiff Bradford Morse (Clarissa Bowers’ grandson and Sally Morse’s son), however, now the owner of Sally’s house (and thus the direct beneficiary of the land swap), [Note 3] is opposed. He and the other plaintiffs appealed the building permit to the Wellfleet Zoning Board of Appeals, claiming that the land swap destroyed the Gens lot’s grandfathered status. In a unanimous 5-0 Decision the Board disagreed, ruling that the minor readjustment of the property boundary in 1976 did not affect the grandfathering of the Gens lot as protected by the Wellfleet bylaw. Mr. Morse and his co-plaintiffs then appealed that Decision to this court pursuant to G.L. c. 40A, §17.

The parties have now cross-moved for summary judgment, the defendants seeking affirmance of the Board’s Decision and the plaintiffs its reversal. For the reasons set forth below, the plaintiffs’ motion is DENIED and the defendants’ motion is ALLOWED. The Board’s ruling that the Gens lot remained grandfathered after the land swap was a reasonable interpretation of the town’s bylaw and is thus affirmed.


Summary judgment is appropriately entered when there are no genuine disputes of material fact on the claims put in issue by the motion and the moving party is entitled to judgment on those undisputed facts as a matter of law. Mass. R. Civ. P. 56(c); Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-644 (2002). The following facts are not in genuine dispute. [Note 4]

As noted above, the relevant events begin with the actions of Roger and Clarissa Bowers [Note 5] who owned the entirety of what are now the Gens, Morse, and Burke/Moody lots. [Note 6] By deed dated January 6, 1965 the Bowers divided their lot in two, selling its easternmost portion to William DeMontigny and retaining the western side where their house and outbuildings were located. That division is shown in the attached Ex. 2. The boundary between the two newly-created lots, Mr. DeMontigny on the east and the Bowers on the west, was a straight line in the location set by the Bowers, and both lots were fully compliant with the size requirements of the then-applicable zoning. [Note 7]

Some eleven years later, in 1976 (after Roger’s death), Ms. Bowers wanted to subdivide her remaining land into two new lots, “A” and “B”, keeping her existing house in its same location on Lot B, and allowing her daughter, Sally Morse, to build a 5-bedroom home on Lot A. This would not be possible, however, if her property boundary remained “as is” since the proposed “Lot A” would not have sufficient setback to build that large a house for Sally. Such a house could only be built if Mr. DeMontigny agreed to swap enough land along the border to satisfy the setback requirement.

The DeMontigny lot was non-conforming at that time (the zoning requirement for buildable lots had increased to 20,000 from 15,000 square feet the previous year; DeMontigny had 18,037), but grandfathered as a buildable lot. [Note 8] At Ms. Bowers’ and her daughter Sally’s urging, Mr. DeMontigny agreed to a swap of an exactly equivalent amount of land. The border now became a “Z” instead of its former straight line, see Ex. 3, and Sally proceeded to build her house, see Ex. 4. That house is now owned by her son, plaintiff Bradford Morse. The Morses not only took advantage of the re-adjusted border to build their 5-bedroom house, but also took further advantage by locating their septic system’s leaching fields on the swapped land. See. Ex. 5. The land and buildings Ms. Bowers retained (Lot B) were subsequently sold to plaintiffs Stephen Burke and Eleanor Moody.

The DeMontigny lot, with its re-adjusted boundary line, was subsequently sold by his estate to Michael and Michelle McCann who, on July 16, 2010, applied for a building permit for construction of a single family home. The building inspector granted the permit, ruling that the lot continued to be grandfathered under the town bylaw. [Note 9] No construction was ever begun under that permit. Instead, the McCanns sold the lot to the Gens who had previously been assured by the building inspector that the lot was buildable. On October 12, 2010, the Gens applied for a new building permit and it was promptly issued, again based on the building inspector’s ruling that the lot continued to be grandfathered under the town bylaw. This new building permit was reviewed and extended for an additional year by the town’s new building inspector, again based on a ruling that the lot was grandfathered.

The plaintiffs had not been given formal notification that the permit had been issued, and their first awareness came when the Gens’ contractor began clearing trees and brush. [Note 10] Mr. Morse went to the building inspector, claiming that the Gens’ lot had lost its grandfathered status at the time of the land swap, and requested a zoning enforcement order revoking the permit and directing construction to stop. The building inspector disagreed, ruling that the Gens’ lot was the same lot prior to and after the 1976 land swap under the town zoning bylaw’s definition of “lot,” thus continued to be grandfathered, and thus denied Mr. Morse’s request. Mr. Morse and the other plaintiffs then appealed the building inspector’s ruling to the town’s Zoning Board of Appeals, which rejected that appeal, upholding the decision of the building inspector in a unanimous 5-0 vote. The plaintiffs then filed this G.L. c.40A, §17 appeal with this court.

Whether a lot is “grandfathered” (here, from the current bylaw’s requirement that it have at least 20,000 square feet of land to be buildable) is governed by G.L. c. 40A, §6 and the additional protections a town is permitted to grant in its local bylaw. See Marinelli v. Bd. of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005). There is no dispute that the Gens lot fully complied with then-applicable town bylaw (15,000 square feet) at the time it was created, and that it had 18,037 square feet both then and now. It is also undisputed that all that occurred between then and now was a minor readjustment of the property boundary, done at the request of plaintiffs Morse, Burke and Moody’s predecessor-owner (Ms. Bowers) so that the house Ms. Bowers grandson, plaintiff Bradford Morse, now occupies could be built.

G.L. c. 40A, §6, fourth paragraph, states, “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…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.” Section 6 “is concerned with protecting a once valid lot from being rendered unbuildable for residential purposes….” Sturges v. Town of Chilmark, 380 Mass. 246 , 261 (1980). This is a policy that is “grounded in principles of fairness to landowners….” Rourke v. Rothman, 448 Mass. 190 , 197 (2007). As the Rourke court stated:

While elimination of nonconformity may be a general goal of zoning, it is certainly not the goal of the first sentence of §6, fourth par., the manifest purpose of which is to preserve the buildable status of certain nonconforming lots in perpetuity.

Id. at 197 (emphasis in original).

The Gens intend to build a single family residence on their property. It conformed to “then existing requirements” at the time it was created. It has at least five thousand square feet of area and fifty feet of frontage. It thus falls within the grandfather protections of Section 6 if it is the same “lot” as it was at the time the zoning bylaw increased the size requirements. Whether it is or not is determined by the local bylaw’s definition of “lot.” On this question, “a judge must give ‘substantial deference’ to a board’s interpretation of its zoning bylaws and ordinances.” Wendy’s Old Fashioned Hamburgers of New York, Inc. v. Bd. of Appeal of Billerica, 454 Mass. 374 , 381 (2009). Here, the town’s building inspectors (two of them, on three separate occasions), on advice of town counsel, concluded that the town’s bylaw protected the Gens lot’s grandfathered status notwithstanding the minor readjustment of its boundary line.

The plaintiffs disagree, relying chiefly on Peterson v. Cargill, 14 LCR 403 (2006) where this Court concluded that lots held in common ownership lost their grandfathered protection when lot lines were altered to accommodate a new septic system. Peterson, however, is inapposite, for two reasons. First, unlike Peterson, the adjustment to the lot lines in this case was not carried out by a common owner seeking both an immediate benefit and the retention of grandfathered status for the benefit of development sometime in the future. It was an arms-length transaction, carried out solely as an accommodation to Ms. Morse and her parents so that Ms. Morse had the necessary setback to build the large, 5-bedroom house she wanted. [Note 11] Second, again unlike Peterson, the local board interpreted its bylaw as extending grandfather protection in this situation, based on the bylaw’s definition of “lot.” [Note 12]

The current version of the Wellfleet zoning bylaw defines the word “lot” as:

Lot – Parcel of land occupied or intended to be occupied by one Principal Building or Principal Use and its accessory buildings, except as provided for in Section 5.4.13 of these By-laws, together with such open spaces as are required under the provisions of this By-law, having not less than the minimum area required by the By-law for a lot in the district in which such land is situated, and having its principal frontage on a street or on such other means of access as may be determined in accordance with the provisions of the law to be adequate as a condition of the issuance of a building permit for a building on such land.

As the defendants note, “this definition has not materially changed since the time of the swap at issue.” Reply Brief at 5. The bylaw then defined “lot” as:

Lot – Parcel of land occupied or intended to be occupied by one main building or use and its accessory buildings, or by a dwelling group and its accessory buildings, together with such open spaces as are required under the provisions of this By-law, having not less than the minimum area required by the By-law for a lot in the district in which such land is situated, and having its principal frontage on a street or on such other means of access as may be determined in accordance with the provisions of the law to be adequate as a condition of the issuance of a building permit for a building on such land.

As the building inspector noted, the point is simple and compelling. Wellfleet defines “lot” broadly as a “parcel of land,” not a depiction shown on a plan or a description using metes and bounds. See Marinelli v. Bd. of Appeals of Stoughton, 65 Mass. App. Ct. 902 , 903 (2005) (bylaw may expressly provide more generous grandfather protections than c. 40A, §6). Thus, for grandfathering purposes, the definition allows the town to recognize a lot as the same lot so long as the area is identical, the change in its boundary line is minor, and the reasons for the change were not self-serving and manipulative. That is precisely what occurred here. Two different building inspectors, on three different occasions, interpreted the bylaw to preserve grandfathering protection in this situation. Town counsel confirmed that interpretation, and the Zoning Board of Appeals affirmed the building permit, based on grandfather protection, by unanimous 5-0 vote. This was an eminently reasonable interpretation on the facts of this case, well within the town’s and its Zoning Board’s allowable discretion, and properly due this Court’s deference. See Mellendick v. Zoning Bd. of Appeals of Edgartown, 69 Mass. App. Ct. 852 , 857 (2007) (“the reasonable construction that a zoning board of appeals gives to the by-laws it is charged with implementing is entitled to deference,” quoting Cameron v. DiVirgilio, 55 Mass. App. Ct. 24 , 29 (2002)); Duteau v. Zoning Bd. of Appeals of Webster, 47 Mass. App. Ct. 664 , 669 (1999) (deference owed to local zoning board because of its “home grown knowledge about the history and purpose of its town’s zoning by-law”), and other cases cited in Wendy’s, 454 Mass. at 381.

Since I affirm the Board’s decision on this basis, I need not and do not reach the defendants’ other arguments based on equitable estoppel and the plaintiffs’ asserted lack of standing. Mr. Morse’s predecessors-in-title (his grandmother and mother) received the benefit of Mr. DeMontigny’s courtesy in agreeing to the land swap. Mr. DeMontigny and his successors got nothing from it. Mr. Morse now resides in a house that would otherwise not exist, and thus continues to enjoy the benefits of the swap. Whether thought of as a lack of standing or an equitable estoppel, his objection to the “buildable” status of the Gens lot thus seems problematic. See Hogan v. Hayes, 19 Mass. App. Ct. 399 , 404 (1985) (“They [the plaintiffs] take advantage of so much of the variance as is needed to enable them to hold their property lawfully but seek at the same time to escape from its coincident burden upon them.”). Mr. Burke and Ms. Moody would also in some measure be bound by the acts of their predecessor-in-title, Ms. Bowers. The defendants’ argument that the plaintiffs have not shown sufficient adverse impact on their properties from the building of a home on the Gens lot, and thus lack to standing to challenge it, involves factual issues beyond the scope of summary judgment to resolve.


For the foregoing reasons, the plaintiffs’ motion for summary judgment is DENIED, the defendants’ motion for summary judgment is ALLOWED, the Board’s Decision is AFFIRMED, and the plaintiffs’ claims in this lawsuit are DISMISSED in their entirety, WITH PREJUDICE. Judgment shall enter accordingly.


By the court (Long, J.)

Exhibit 1


Exhibit 2


Exhibit 3

Plan of Land in Wellfleet

Exhibit 4

Preliminary Plan

Exhibit 5

As-Built Plan


[Note 1] Indeed, Mr. DeMontigny was disadvantaged by the swap since it changed the shape of his property from a regular, roughly rectangular shape to an “L” shape with a smaller building envelope, thereby limiting its owner’s development options.

[Note 2] Indeed, its prior owners had applied for and received a building permit just a few months before.

[Note 3] His house would not exist otherwise.

[Note 4] A fact is genuinely in dispute only if “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986).

[Note 5] As previously noted, plaintiff Bradford Morse is the Bowers’ grandson.

[Note 6] The parties’ lots are shown on the attached Ex. 1. Thomas and Tracey Gens are at 210 Paine Hollow Road, Bradford Morse at 220, and Stephen Burke and Eleanor Moody at 230. Robert Paine, as trustee of the Land Steward Trust, owns the land across the street at 215. His title comes from a different chain, not from Ms. Bowers.

[Note 7] The DeMontigny lot had 18,037 square feet. The zoning requirement for buildable lots was 15,000 square feet at the time of its creation.

[Note 8] The zoning bylaw had been changed in 1975, now requiring lots to have 20,000 square feet to be buildable.

[Note 9] His opinion that the DeMontigny lot continued to be grandfathered under the town bylaw even after the 1976 land swap was confirmed by town counsel, Kopelman & Paige, whom he called for advice.

[Note 10] The defendants dispute whether this land-clearing was, in fact, the plaintiffs’ “first awareness” that a building permit had been issued (they assert, among other things, that at least Mr. Morse was aware of the previous permit issued to the McCanns) but, for purposes of these motions, I resolve this dispute in favor of the parties against whom summary judgment is being entered, the plaintiffs.

[Note 11] Mr. Morse disputes that the intended purpose of the 1976 land swap was to provide his predecessors in title (his grandmother and mother) sufficient setback to allow the construction of the house he now lives in, which otherwise would not exist. See Plaintiff’s Response and Statement of Additional Undisputed Facts ¶10. However, the plans drawn up by Ms. Bowers’ own surveyor (Exs. 3 & 4) plainly show that the proposed dwelling lacked sufficient setback from the preexisting boundary line, and the only way Sally could construct it was by completing the land swap. See also Ex. 5 (location of septic leaching chambers). I thus reject Mr. Morse’s attempt to create an issue of material fact on this point. See Ng Bros. Constr. Inc. v. Cranney, 436 Mass. 638 , 647-48 (2002) (a party’s characterization of documents cannot contradict the documents themselves). Moreover, on these facts (which show that Mr. DeMontigny received no benefit from the swap, only detriment, and that the plans were drawn up by Ms. Bowers’ surveyor), the only rational inference is that the swap was done at Ms. Bowers’ request for her and Sally’s benefit. There is thus no genuine issue of material fact on this point. See Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986).

[Note 12] The other cases cited by the plaintiffs, Johnson v. Bd. of Appeals of Andover, 78 Mass. App. Ct. 292 (2010) and Lindsay v. Bd. of Appeals of Milton, 362 Mass. 126 (1972) are inapposite for the reasons set forth in the Gens’ Reply Brief at 2-3 (Sept. 21, 2012).

As the defendants note, “there has never been a reported decision in which a lot held in separate ownership from adjoining land at the time of a zoning change that rendered it nonconforming, which lot was later involved in a land swap that altered some of its lot lines but did not exacerbate its nonconformity, and which was bound by both the local building inspector and board of appeals to be the same ‘lot’ as before the land swap for the limited purpose of applying the grandfather protection of G.L. c. 40A, §6, was deemed to have lost its grandfather protection. Such a result would represent an unduly strict interpretation of Section 6 and would undermine its core purpose. [citing Rourke, 448 at 196-197].” Defendants’ Reply Brief at 3.