RUTH MOHR v. J. FRANK STROH, individually and as trustee of THE NICHOLAS TRUST, PHILLIP JACKSON, HARVEY FREEMAN, JOHN NIXON, PAUL KEARNEY, and BRUCE MACGREGOR, as members of the ZONING BOARD OF APPEAL OF THE TOWN OF BREWSTER

Introduction

This case is plaintiff Ruth Mohr’s G.L. c. 40A §17 appeal of the Brewster Zoning Board of Appeals’ (the “Board”) decision to uphold a building permit issued to defendant J. Frank Stroh to construct a single family home on a parcel of land he owns adjacent to Ms. Mohr’s lot. Ms. Mohr contends that the building permit should not have issued because Mr. Stroh’s parcel is nonconforming and lacks any grandfather protection under either the Town’s bylaw or G.L. c. 40, §6. Mr. Stroh maintains that his parcel is grandfathered under the Town’s bylaw or, in the alternative, under G.L. c. 40, §6.

The matter was tried before me on a case stated basis. As more fully set forth below, based on the parties’ stipulation of facts, the agreed exhibits, documents of record of which I may take judicial notice, and the inferences I draw from that evidence, I find and rule that Mr. Stroh’s parcel is grandfathered under the Town’s bylaw and is thus a buildable lot. I therefore need not and do not reach the question of whether it is also grandfathered under G.L. c. 40A, §6. The Board’s decision to uphold the building permit is AFFIRMED and Ms. Mohr’s appeal is DISMISSED in its entirety, WITH PREJUDICE.

Facts

The parcel at issue, shown as Parcel 49 on the Brewster Assessors Map, was created as a separate lot when Frank D. Lawrence conveyed it to Catherine J. Williams by deed on April 5, 1941. (Agreed Facts ¶2, 4.) Parcel 49 contains 28,706 square feet of land and has 179.93 feet of frontage on Frank D. Lawrence Road, a 9 foot wide private dirt road that has existed on the ground since 1924. (Agreed Facts ¶5.)

In 1947, Ms. Williams conveyed Parcel 49 to William C. Cannon and Gretchen C. Cannon as tenants by the entirety. (Agreed Facts ¶4b.) Years later, in 1982, Mr. Stroh discussed buying Parcel 49 from Mr. Cannon for $7,500. (Agreed Facts ¶6.) At an undetermined date, Mr. Stroh paid Mr. Cannon $2,500 as a deposit for the property. On July 1, 1983, Mr. Cannon deeded Parcel 49 to his son, William W. Cannon. (Id.) Eight days later, on July 9, 1983, William W. Cannon executed a deed for the property to Mr. Stroh in return for $5,000. (Id.) The deed, however, was delivered to Mr. Stroh’s attorney, James Julian, who held it until Mr. Stroh paid the $5,000 balance he owed on the purchase price. (Id.)

On March 16, 1984, William W. Cannon and Mr. Stroh entered into a purchase and sale agreement to sell Parcel 49 for $7,500. The agreement called for a closing on April 17, 1984, but the closing ultimately never took place because of issues with the estate of Gretchen Cannon (co-tenant with William C. Cannon) who had died in 1972. Still, Mr. Stroh continued to make periodic payments to William C. Cannon toward the purchase price for several years. (Id.)

In 1987, William C. Cannon died. (Id.) On April 4, 1989, Mr. Stroh paid William W. the remaining balance due under the 1984 purchase and sale agreement, and William W. authorized Attorney Julian to release the 1983 deed to Mr. Stroh. (Id.) That deed was recorded on April 4, 1989. (Id.)

On November 27, 1990, Mr. Stroh mortgaged Parcel 49 to Robert A. Scandurra and Edward G. Harper as Trustees of Nicholas Jernigan Stroh Trust. (Ex. 4f.) Subsequently, by deed dated April 22, 1992, and recorded May 5, 1992, Mr. Stroh conveyed Parcel 49 to S. Bradford Smith [Note 1] and to himself as Trustees of the Nicholas Trust. (Agreed Facts ¶17.)

Mr. Stroh also held title to Parcel 48, abutting Parcel 49’s western boundary, by virtue of a deed from his mother, given as a gift in November 1976. (Agreed Facts ¶8; Ex. 3b.) More than ten years later, Mr. Stroh executed a series of mortgages on Parcel 48. (Agreed Facts ¶10-13.) One of these mortgages, granted to the Massachusetts Company in exchange for a $50,000 line of home-equity credit, resulted in foreclosure. The Massachusetts Company completed its sale of Parcel 48 on June 18, 1992, and a foreclosure deed for the parcel was recorded on April, 14, 1993. (Agreed Facts ¶16.)

Prior to losing title to Parcel 48 through foreclosure, Mr. Stroh held record title to both Parcel 48 and Parcel 49 from April 4, 1989, [Note 2] until May 5, 1992. [Note 3]

Plaintiff Ruth Mohr resides on Parcel 71 on Frank D. Lawrence Road. (Agreed Facts ¶23; Ex. 1; Ex. 5b; Compl. ¶2.) Ms. Mohr’s property contains a cottage and has frontage on Frank D. Lawrence Road. (Agreed Facts ¶23; Ex. 1.) Her parcel and Mr. Stroh’s Parcel 49 are adjacent, separated by a strip of land known as Ruhlaw Road. [Note 4] Although not designated on any plan, Ruhlaw Road appears in the metes and bounds descriptions of several deeds attached as exhibits in this case. (Agreed Facts ¶33.) Ruhlaw Road is 25 feet wide, but has never been improved and remains a wooded area. (Ex. 12; Compl. ¶17.) Both Ms. Mohr and Mr. Stroh’s parcels are located in a Residential Rural zoning district. (Ex. 28.)

The Town of Brewster passed its first zoning bylaw in 1960, which provided that a buildable lot must have a minimum area of 15,000 square feet and at least 100 feet of frontage along a public or private way. Since then, the bylaw’s requirements for minimum area and frontage have been amended several times. A 1971 zoning bylaw increased the minimum lot size in the Residential Rural zoning district to 40,000 square feet with a minimum frontage of 150 feet. (Agreed Facts ¶28.) In December 1978, the minimum lot size increased to 60,000 square feet with a minimum frontage of 150 feet. (Id.) Then, in May 1986, the minimum lot size in the Residential Rural zone increased again to 100,000 square feet with a minimum frontage of 200 feet. (Id.) These requirements remain in place under the Town’s current bylaw. (Agreed Facts ¶29.)

Parcel 49 has never contained a dwelling, but in April 2007, Mr. Stroh applied for and received a building permit for the construction of a single-family home. (Ex. 10.) Ms. Mohr filed a complaint with the Brewster Building Commissioner (the “Commissioner”) challenging the issuance of that permit, which was denied. (Ex. 11.) She then appealed this denial to the Brewster Zoning Board of Appeals who affirmed the building permit’s issuance. (Ex. 14.) Ms. Mohr then appealed that Decision to this Court, and the matter was remanded to the Board for a further hearing. (Ex. 15.) In January 2008, the Board once again upheld the building permit, finding that although Parcel 49 did not meet the current bylaw’s area and frontage requirements, it was grandfathered under §179-26(A) of the Town’s zoning bylaw and was thus buildable. Ms. Mohr timely appealed that Decision to this Court. (Id.)

Further facts are set forth in the Discussion section below.

Discussion

In a G. L. c. 40A, § 17 appeal, the court is required to hear the case de novo, make factual findings, and determine the legal validity of the Board’s decision based upon those findings. Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (citing Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953); Josephs v. Bd. of Appeals of Brookline, 362 Mass. 290 , 295 (1972)). The court “gives no evidentiary weight to the board’s findings.” Roberts, 429 Mass. at 486 (citing Josephs, 362 Mass. at 295). The court’s “function on appeal,” based on the facts it has found de novo, 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 purposes of the zoning law.” Vazza Properties, Inc. v. City Council of Woburn, 1 Mass. App. Ct. 308 , 312 (1973). The Board must have acted “fairly and reasonably on the evidence presented to it,” and have “set forth clearly the reason or reasons for its decisions,” in order to be upheld. Id.

Even though the case is heard de novo, such “judicial review is nevertheless circumscribed: the decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.” Roberts, 429 Mass. at 486 (citations omitted). In determining whether the decision was “based on a legally untenable ground,” the courts must determine 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-law. In the main, though, the court determines the content and meaning of statutes and by-laws and then 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.

Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal citations omitted). In determining whether the decision was “unreasonable, whimsical, capricious, or arbitrary,” “the question for the court is whether, on the facts the judge has found, any rational board could” come to the same conclusion. Id. at 74. This step is “highly deferential.” Id. While “it is the board’s evaluation of the seriousness of the problem, not the judge’s, which is controlling,” Barlow v. Planning Bd. of Wayland, 64 Mass. App. Ct. 314 , 321 (2005) (internal quotations and citations omitted); Titcomb v. Bd. of Appeals of Sandwich, 64 Mass. App. Ct. 725 , 732 (2005) (same), and “a highly deferential bow [is given] to local control over community planning,” Britton, 59 Mass. App. Ct. at 73, deference is not abdication; the board’s judgment must have a sound factual basis. Britton, 59 Mass. App. Ct. at 74-75 (to be upheld, the board’s decision must be supported by a “rational view of the facts”). If the Board’s decision is found to be arbitrary and capricious, the court should annul the decision. See, e.g., Colangelo v. Bd. of Appeals of Lexington, 407 Mass. 242 , 246 (1990); Mahoney v. Bd. of Appeals of Winchester, 344 Mass. 598 , 601-02 (1962). If it is not, it must be upheld. Roberts, 429 Mass. at 486.

The issue before me is Parcel 49’s grandfathered status under both §179-26(A) of the Town’s zoning bylaw and under G.L. c. 40A, §6. But as noted above, because I find that Parcel 49 is grandfathered under §179-26 of the bylaw, I need not and do not reach the question of whether Parcel 49 has grandfather protection under G.L. c. 40A, §6. “[Section] 6 provides only a floor and . . . a municipality is free to grant more liberal treatment to the owner of a nonconforming lot.” DeSalvo v. Chatis, 1991 WL 11259380 Mass. Land Ct. (Sept. 11, 1991) (Sullivan, J.); See also 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); Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521 , 523-24 (1987) (application of merger doctrine to prevent grandfathering would contravene town bylaw’s liberal purpose). Here, the Town has afforded such greater protections. Under G.L. 40A, §6, ¶4, common ownership of adjacent lots, like Mr. Stroh’s prior ownership of Parcels 48 and 49, [Note 5] may prevent a lot from gaining grandfather protection, but §179-26(A) of the Town’s bylaw expressly provides such protection to “any lot, regardless of a common ownership with that of adjoining land.” Code of the Town of Brewster, Mass., §179-26(A) (Ex. 9). If Mr. Stroh can show that Parcel 49 is grandfathered under § 179-26(A), the analysis need go no further and consideration of the merger doctrine and its effect on Parcel 49’s grandfather status under the provisions of the Zoning Act is of no consequence.

Section 179-26(A) of the Town’s bylaw provides:

One single-family dwelling may be erected on any lot regardless of a common ownership with that of adjoining land located in the same residential district which, as of May 7, 1973, contained at least 15,000 square feet and had a minimum frontage of 100 feet and complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement and provided, further, that the proposed structure is to be located on such lot so as to conform to the minimum requirements of front, rear and side yard setbacks and to all other requirements for such structures in effect at the time of plan endorsement; provided, however, if there are no applicable setbacks, the front yard setback shall be 30 feet and the side and rear yards [sic] setbacks shall be 20 feet.”

Code of the Town of Brewster, Mass., §179-26(A). There are thus four requirements for a lot to be grandfathered under the bylaw: (1) the lot must be in a residential district; (2) it must have contained 15,000 square feet in area and 100 feet of frontage as of May 7, 1973; (3) it must have complied with the rules and regulations of the planning board, if any, at the time of endorsement; and (4) it must conform to certain, minimum setback requirements. Id.

The parties do not dispute that Parcel 49 is located within a Residential Rural zoning district.

Section 179-26(A) next requires that a lot contain a minimum area of 15,000 square feet and 100 feet of “frontage” as of May 7, 1973. Parcel 49 was created as a separate lot in 1941 containing 28,706 square feet. It has 179.93 feet of frontage along Frank D. Lawrence Road, but the parties dispute the meaning of “frontage” under §179-26(A) and, thereby, whether Parcel 49 actually has the legal frontage necessary for grandfather protection.

The history of the Town’s zoning bylaw is relevant to this dispute. Brewster adopted its first zoning bylaw in 1960. (Agreed Facts ¶31; Ex. 7.) The bylaw required that buildable lots have “a frontage of at least one hundred (100) feet on a public or private way, and [that they] shall contain at least fifteen thousand (15,000) square feet unless such lot or parcel was duly recorded on a plan filed with the Barnstable Registry of Deeds prior to the adoption of this By-Law.” Proposed Zoning By-Law for the Town of Brewster, §VI(1) (1960) (Ex. 7.). Notably, the bylaw did not further define frontage with respect to any minimum standards of quality or dimension for a “public or private way.”

In 1971, the Town amended its bylaw, providing additional definitions relevant to the frontage requirement. [Note 6] (Ex. 8). First, the new bylaw defined “lot frontage” as the “horizontal distance measured along the front line between the points of intersection of the side lot lines with the front lot line.” (Id.) Second, it defined “Lot Line, Front,” as the “property line dividing a lot from a street right-of-way.” (Id.) Finally, the new bylaw defined “street” as:

[A] way which is over 24 feet in right-of-way width which is dedicated or devoted to public use by legal mapping or by any other lawful procedure. A street includes all public ways, a way which the town clerk certifies is maintained and used as a public way, a way shown on a plan approved and endorsed in accordance with the ‘Rules and Regulations Governing Subdivision of Land in Brewster, Massachusetts’ and a way having in the opinion of the Brewster Planning Board sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic in relation to the proposed uses of the land abutting thereon or served thereby, and for the installation of municipal services to service such land and the buildings erected or to be erected thereon.

Town of Brewster, Massachusetts: Zoning Bylaw, §II, p. 7 (1971) (Ex. 8.).

Essentially, the new definitions provided that buildable lots must have frontage along a street right-of-way, at least 24 feet wide. Parcel 49 has frontage on Frank D. Lawrence Road, which is only 9 feet wide, and therefore does not qualify as a “street” under the amended bylaw. [Note 7] Ms. Mohr contends that the frontage requirement of §179-26(A) must be read in light of these 1971 amendments since the Town approved them well before it passed §179-26(A) in 1979. Mr. Stroh maintains that §179-26(A) requires a lot to have only 100 feet of frontage along any public or private way, the pre-1971 frontage standard.

In Clark v. Wagoner, 2 LCR 1 (1994), this Court (Cauchon, C.J.) considered the very same Brewster bylaw provisions in relation to whether a nonconforming lot’s frontage had grandfather protection. In Clark, a lot in Brewster, in existence since 1910, had 490 feet of frontage along Baker’s Pond Road, a private way that existed on the ground but did not meet the 1971 bylaw’s definition of a “street.” Id. at 1. As the Court held, “[t]he core determinations of minimum frontage and sufficiency of access such as would entitle Locus to a designation as a buildable lot under the Zoning Ordinance, are therefore to be made according to the pre-1971 zoning standards for frontage and access. As an example of this, Locus is exempted from any possible independent requirement in the current zoning bylaw that it must front on a way having at least a twenty four foot right-of-way.” Id. at 2.

The record demonstrates that Frank D. Lawrence Road provides adequate access under the pre-1971 zoning standards and thus provides legal frontage for Parcel 49. Seven other single family homes, including Ms. Mohr’s, use Frank D. Lawrence Road for frontage and vehicular access to their properties. Most of these homes were constructed prior to the 1971 bylaw amendments and the residence on Parcel 60 was constructed on or about 1974, after the bylaw amendments were implemented. (Agreed Facts ¶¶ 20, 21, 22, 23, 24). Relying on Clark, the Board correctly applied the pre-1971 zoning standard for frontage and determined that Frank D. Lawrence Road complied with that standard.

The Board’s application of the pre-1971 frontage standard to Parcel 49 is further supported when considered in light of other bylaw provisions. In 1978, the Town added §179-26(B), a separate grandfathering provision from §179-26(A), providing that:

[A]ny increase in lot area, width, depth, yard or frontage requirements shall not apply to erection, extension or alteration or moving of a structure on a lot not meeting current dimension requirements, provided that, as of June 25, 1978, such lot was a legal building lot and had a lot area of at least 5,000 square feet and street frontage of at least 50 feet.

Code of the Town of Brewster, Mass., §179-26(B) (emphasis added). The well-established rule of statutory construction provides that “where the Legislature has employed specific language in one paragraph, but not in another, the language should not be implied where it is not present.” G.E.B. v. S.R.W., 422 Mass. 158 , 170 (1996) (quoting Beeler v. Downey, 387 Mass. 609 , 616 (1982)). The enactment of a zoning bylaw is a legislative act. See Durand v. IDC Bellingham, LLC, 440 Mass. 45 , 50 (2003). Section 179-26(B)’s explicit reference to “street frontage” stands in contrast to §179-26(A)’s reference to “frontage.” This distinction is particularly significant given that these two grandfathering provisions were enacted only one year apart, and §179-26(B) came first in 1978. If the Town intended “frontage” in §179-26(A) to mean “street frontage,” it could have made that intention clear as it did in §179-26(B). Thus, where the Town has used two distinct terms only a year apart, the Court will not presume it intended the same meaning.

Section 179-26(D) of the bylaw, which was added in 1988, is similarly revealing. The parties agree that Parcel 49 does not satisfy §179-26(D)’s requirements for grandfather protection since §179-26(D) requires a minimum lot area of five acres, which Parcel 49 does not have. But the provision is relevant because it is entitled “Preexisting lots of record lacking street frontage.” Once again, the Town employed a term that denotes a particular kind of frontage. Such particularized terms do not appear in §179-26(A), which, instead, reflects the Town’s intent to provide grandfather protection to the Town’s older parcels that were, at one time, conforming lots.

Section 179-26(A) itself also indicates that the Town did not intend frontage to mean frontage along a 24 foot wide street as defined in the 1971 amendment. Specifically, the dimensional requirements for lots in §179-26(A) – 15,000 square feet of area and 100 feet of frontage – and its setback requirements – 30 feet in front, 20 feet at the sides and rear – are the same minimum requirements that existed under the Town’s first bylaw adopted in 1960, which simply required that a lot have frontage along a public or private way. That §179-26(A) and the original 1960 bylaw contain virtually identical requirements once again strongly indicates the Town’s intent to extend grandfather protection to the Town’s older lots that did not have frontage along a 24 foot wide street.

The third requirement for grandfather protection under §179-26(A) is that the property must have “complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement.” Code of the Town of Brewster, Mass., §179-26(A) (emphasis added). Ms. Mohr contends that the relevant portion of this provision is the “time of endorsement” language, and she notes that between 1948 – when the Town first organized a planning board – and 1973, the planning board never endorsed a plan on which Parcel 49 appears. See Brief Submitted on Behalf of Plaintiff, Ruth G. Mohr at p. 18. Mr. Stroh, however, emphasizes the provision’s “if any” language and contends that no rules or regulations existed when Parcel 49 was created by Frank Lawrence’s deed to Catherine Williams in 1941. I agree with Mr. Stroh.

The Town did not adopt its first subdivision rules and regulations until 1953. At the time Parcel 49 was first subdivided out of a larger tract, no rules or regulations existed to endorse such a division. And there was no planning board to grant such an endorsement until 1948. The purpose of the “if any” language of §179-26(A) is to address the status of lots created before any subdivision rules or regulations existed. To construe the bylaw otherwise would render the words “if any” superfluous.

Finally, the last requirement for grandfather protection under §179-26(A) is that:

[T]he proposed structure [must] be located on [the] lot so as to conform to the minimum requirements of front, rear and side yard setbacks and to all other requirements for such structures in effect at the time of plan endorsement; provided, however, if there are no applicable setbacks, the front yard setback shall be 30 feet and the side and rear yards [sic] setbacks shall be 20 feet.

Code of the Town of Brewster, Mass., §179-26(A) (emphasis added). Ms. Mohr once again contends that the language referring to “structures in effect at the time of the plan endorsement” requires a plan to have been endorsed. See Brief Submitted on Behalf of Plaintiff, Ruth G. Mohr at p. 18. This argument fails for the same reasons stated above.

Section 179-26(A) explains that the applicable setback requirements will be those in existence at the time of plan endorsement. But it also provides that if there were no applicable setback requirements, then the default setbacks in the bylaw apply. Again, Ms. Mohr’s interpretation would render this part of the provision meaningless. Here, there are no applicable setback requirements because Parcel 49 never appeared on a plan for endorsement. Thus, the default setback requirements apply. So long as the structure Mr. Stroh proposes has a front yard setback of 30 feet and side and rear yard setbacks each of 20 feet, Parcel 49 will satisfy §179-26(A)’s final requirement. The site plan for Mr. Stroh’s proposed structure shows that it will exceed the setback requirements in the bylaw. (Ex. 16).

Conclusion

For the foregoing reasons, the Board’s decision to uphold the building permit issued to Mr. Stroh is AFFIRMED and Ms. Mohr’s appeal is DISMISSED in its entirety WITH PREJUDICE.

Judgment shall enter accordingly.

SO ORDERED.