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 TURNER, as they are Members of the Board of Appeals of the Town of Norwell, and WILLIAM MCCAULEY, MAURA A. & GREGORY T. LAUREAU and RICHARD & DEBORAH THORNTON

INTRODUCTION

The central issue in this case is whether the Plaintiff’s lot has sufficient “frontage” to qualify the lot for the so-called “separate lot” protections contained in the first sentence of G.L. c. 40A, § 6, ¶ 4. Plaintiff Thomas F. Williams, Trustee of the River Realty Trust, owns a 2.076 acre parcel of land in the Town of Norwell, identified by the Norwell Assessors as Lot 62. The Plaintiff appeals under G.L. c. 40A, § 17 from the December 21, 2009 decision of the Defendant Norwell Zoning Board of Appeals which overturned the issuance of a building permit for the construction of a single-family dwelling on Lot 62. The Zoning Board of Appeals concluded that the building permit was issued prematurely because the Planning Board had not yet made a frontage adequacy determination, as required by the Norwell Zoning By-law. Williams claims that the Zoning Board of Appeals’ decision is incorrect as a matter of law because Lot 62 is protected under the fourth paragraph of G.L. c. 40A, § 6 from application of current Zoning By-law requirements, including the requirement that private way frontage is subject to an adequacy determination by the Planning Board. The Plaintiff argues that the Zoning Board of Appeals incorrectly found that the subject lot is not so protected, and also acted arbitrarily and capriciously in deferring to the Planning Board.

The trial in this matter was conducted on July 6, 2011. [Note 1] Three (3) witnesses testified: the Plaintiff, the Norwell Building Inspector, and the Plaintiff’s title expert, Robert Moriarty, Esq. The Defendants presented no witnesses. The Plaintiff, the Defendant ZBA, and Defendants William McCauley and Maura Laureau stipulated to a list of seventeen (17) facts. A total of eight (8) exhibits were entered into evidence, including five (5) agreed upon exhibits. [Note 2] Following the trial and the receipt of the trial transcripts, Plaintiff and Pro Se Defendant Gregory T. Laureau submitted post-trial briefs on September 1, 2011. Now, based upon the testimony, exhibits, stipulations and other evidence introduced at trial or otherwise properly before me, and the reasonable inferences I draw from same, and taking into account the pleadings, as well as the parties’ respective legal briefs, I find that the Plaintiff has failed to prove that Lot 62 qualifies for separate lot protection under § 6, ¶ 4. I conclude, therefore, that the Defendant Zoning Board of Appeals did not exceed its authority when it decided that Plaintiff’s lot is subject to the current frontage requirements of the Norwell Zoning By-law, and consequently overturned the building permit for the Plaintiff’s lot on the ground that it should not have issued without a determination of street adequacy from the Planning Board.

FACTS

Based upon the stipulated facts, and the trial testimony and exhibits, I find the following facts:

1. Plaintiff Thomas F. Williams, Trustee of the River Realty Trust (the “Plaintiff” or “Williams”), is the record owner of a 2.076 acre parcel of land shown on Norwell Assessor’s 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 “1948 Deed”).

3. Lot 62 is described in the 1948 Deed as follows:

Beginning at the Northeasterly corner of the described premises at a stake which is also the Northwesterly corner of a parcel of land recently conveyed by Cony Moore to Thomas J. Dutson et al;

Thence running with the wall and land of said Dutson, South 4 Degrees, 38 Minutes West, 426.70 feet to land formerly of Adam Brooks at a drill hole in wall;

Thence turning and running with the wall and land formerly of said Brooks, South 39 Degrees, 56 Minutes West, crossing the right of way, 125.83 feet to an angle in said wall at a drill hole and to land to John F. Crawford;

Thence with the wall and land of said Crawford, North 57 Degrees, 07 Minutes West, 116.20 feet to a stake in wall;

Thence turning and running with my land, North 4 Degrees, 38 Minutes East about 332.54 feet to a stake;

Thence turning and running with my land, North 82 Degrees, 23 Minutes East, 233.08 feet to the stake at the point begun at and containing about 2.076 acres all as shown on a plan of the property, dated May 27th, 1948, S. Litchfield, S.E., N. Scituate, recorded herewith.

The 1948 Deed provides that the Lot is:

[c]onveyed subject to existing right of way as 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. [Emphasis added.]

The 1948 Deed further provides that:

The granted premises are conveyed with the right to pass and repass only, over existing right-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.” [Emphasis added.]

4. The 1948 Deed and the plan referenced therein, entitled: “May 27th, 1948, S. Litchfield, S.E., N. Scituate” (the “1948 Plan”), were both recorded in said Deeds on June 21, 1948.

5. Esther MacKay did not own the land described in the 1948 Deed as “land now or formerly of one, Hatch” either when she originally deeded out Lot 62, or thereafter.

6. There is no title record relative to the creation of the “existing right-of-way” referred to in the 1948 Deed.

7. Lot 62 has retained its original description through numerous mesne conveyances.

8. Lot 62 has remained vacant since its creation in 1948.

9. Lot 62 has not been held in common ownership since its creation in 1948.

10. As described in the 1948 Deed and as shown on the 1948 Plan, Lot 62 contains 2.076 acres. The “existing right-of-way” described in the 1948 Deed as running from land formerly of Adam Brooks, is shown on the 1948 Plan as crossing through Lot 62 from its southerly boundary line to its northwesterly boundary line. The 1948 Plan does not show the westerly continuation of said way to Main Street, which was described in the 1948 Deed.

11. When the 1948 Deed was recorded on June 21, 1948, the Norwell Zoning By-law (the “By-law”) in effect was one which had been adopted in 1942 (the “1942 By-law”).

12. Under the 1942 By-law, use of land for “a detached one-family house” was permitted in all of the zoning districts of the Town.

13. Under the 1942 By-law, a residential building lot was required to contain at least twenty thousand (20,000) square feet of area, and to have a lot width of at least one hundred (100) feet. There was no minimum frontage requirement applicable to newly created lots. The term “frontage” was not defined.

14. When Lot 62 was created, it met and exceeded the 1942 By-law’s minimum area and lot width requirements for a residential building lot.

15. As described in the 1948 Deed, and as shown on the 1948 Plan, Lot 62 does not bound on a way or street of any kind. It bounds only on other lots. The “existing right-of-way” described in the 1948 Deed, as running from land formerly of Adam Brooks, and then continuing westerly from Lot 62, does not coincide with the on-ground location of the private way known today as Stony Brook Lane.

16. As presently located on the ground, the private way known as Stony Brook Lane does not abut or cross Lot 62.

17. The Norwell Assessors’ property record card for Lot 62 does not list a Stony Brook Lane address for the Lot. It identifies the Lot only as “Lot 62, North River.”

18. On or about August 31, 2009, the Town of Norwell Building Inspector issued a building permit to Williams for the construction of a single-family house on Lot 62 (the “Building Permit”). At the time he issued the Building Permit, the Building Inspector found that the Lot had frontage on Stony Brook Lane, a private way, and that the Lot was a protected, separate lot of record under G.L. c. 40A, § 6.

19. On or about September 10, 2009, Defendants William McCauley, Maura A. and Gregory T. Laureau, and Richard and Deborah Thornton timely appealed the issuance of the Building Permit to the Norwell Zoning Board of Appeals (the “ZBA”).

20. Following a public hearing, the ZBA voted unanimously to overturn the issuance of the Building Permit, concluding that Lot 62 is subject to current frontage requirements, and that the Building Permit was issued prematurely because the Planning Board had not made a determination that Lot 62 has frontage on a street or way which has “…in the opinion of the Planning Board suitable width, suitable grades and adequate construction.”

21. At the time the Building Permit was issued for Lot 62, the Planning Board had not made a determination as to the adequacy of the right of way crossing through 62.

22. The current By-law defines “Frontage” as:

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. [Emphasis added.]

23. The current By-law defines “Street or Way” as:

A public way or any private way as 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 building erected or to be erected thereon. [Emphasis added.]

DISCUSSION

The Plaintiff challenges the ZBA’s decision to overturn the issuance of the Building Permit on two alternate grounds. First, Williams argues that the ZBA erred in applying the By-law’s current frontage requirements to Lot 62 because, Williams contends, the Lot is protected as a separate, residential lot of record under the fourth paragraph of G.L. c. 40A, § 6 (“§ 6”) from application of the current frontage requirements, including the requirement for an adequacy determination by the Planning Board. Alternatively, Williams argues that, even if Lot 62 fails to qualify for § 6 protection, the current By-law requirement that the Planning Board make a determination as to adequacy of a private way for frontage purposes applies only to new lots being divided from a larger parcel, and not to existing lots such as Lot 62. The Plaintiff reasons, that because Lot 62 is an existing lot, the Building Inspector, rather than the Planning Board, has the authority to determine frontage adequacy. Williams contends that, in issuing the Building Permit, the Building Inspector did determine that Lot 62 had adequate frontage on the private way, Stony Brook Lane, and that, therefore, the Building Permit was validly issued even if the Lot is not protected from application of current frontage requirements by § 6.

As a preliminary matter, I reject the Plaintiff’s alternative argument that the private way adequacy determination provision in the current By-law definition of “Street or Way” applies only to frontage for lots being divided from larger parcels of land. Although the language employed in the By-law definition is similar to the language used in the G.L. c. 41, § 81-L definition of “Subdivision” to describe the types of frontages which exempt land divisions from subdivision control, the purposes of the Subdivision Control Law frontage requirements and the purposes of zoning frontage requirements are different, and are properly applied independently. See, e.g. Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802 , 808 (1981) (recognizing that frontage approval for purposes of obtaining an “approval not required endorsement” under the Subdivision Control Law, and frontage approval for purposes of satisfying buildable lot requirements under zoning are entirely different, each with separate procedures). Therefore, I interpret the Bylaw definition of “Street or Way” as applying to frontage for all lots which are subject to the By-law’s frontage requirements. And more particularly, I interpret the adequacy determination provision in that definition to require that a private way in existence prior to the effective date of subdivision control in Norwell is a “way” for frontage purposes only if the Planning Board has determined that such way has suitable width and grades and construction to serve the vehicular traffic needs relating to the proposed use of the abutting land.

Williams claims that Lot 62 is exempted, under the first sentence of the fourth paragraph of § 6, from the current frontage requirements of the By-law, including the definitions of “Frontage” and “Street or Way” and any associated requirement for an adequacy determination by the Planning Board. However, as explained below, Williams has failed to prove that Lot 62 meets all of the statutory criteria to qualify for such protection.

In order to establish that Lot 62 has protected status as a separate, residential lot of record, the Plaintiff had the burden of showing that, “at the time of recording or endorsement” of the deed or plan creating Lot 62, (1) said Lot was for single or two-family residential use; (2) said Lot was not held in common ownership with any adjoining land; and (3) said Lot conformed to then existing requirements of the By-law (if any), and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. G.L. c. 40A, § 6, ¶ 4; Adamowicz v. Town of Ipswich, 395 Mass. 757 , 762 (1985). In determining whether a lot satisfies these statutory requirements, the “status of the lot immediately prior to the zoning requirement change is controlling.” Adamowicz, 395 Mass. at 762-63.

Williams was able to establish that Lot 62 meets most of the § 6 criteria. First, since the By-law in effect when Lot 62 was created, permitted single-family residential use in all of the Town’s zoning districts, it is evident that Lot 62 was zoned for single-family residential use when it was created in 1948. Second, the parties have stipulated that Lot 62 has not been owned in common with any adjoining land since it was created. Third, the evidence establishes that Lot 62 met the dimensional requirements of the By-law existing when the Lot was created. Specifically, the Lot had in excess of the minimum 20,000 s. f. area required for residential lots, and also had in excess of the required 100 foot minimum lot width. There was no minimum frontage requirement at the time.

However, in order to merit the § 6 statutory exemption from a subsequent increase in frontage requirements, Lot 62 would not only have had to have met the By-law requirements existing when it was created, it also must have “had less than the proposed [frontage] requirement, but at least five thousand square feet of area and fifty feet of frontage.” Lot 62, which has exceeded two acres since it was created, plainly meets the minimum five thousand s. f. area requirement of the Statute. However, the Plaintiff has not demonstrated that Lot 62 also met the minimum frontage requirement of § 6.

Williams contends that Lot 62 has 260 feet of frontage on the “existing right-of-way” across his Lot, and that such right-of-way is the private way now known as Stony Brook Lane. He further contends that Stony Brook Lane qualifies as a “way” as that term was defined in the 1942 By-law, and therefore satisfies the minimum frontage requirement of § 6. His argument assumes that the “existing right-of-way” referenced in the 1948 Deed, and indicated on the 1948 Plan, is part of Stony Brook Lane in its present location on the ground. The argument also assumes that a “right-of-way” described in a deed as a right to pass and re-pass, and partially indicated on a plan referenced in such deed, qualifies as frontage for purposes of § 6. However, the evidence does not support the Plaintiff’s contention that Lot 62 has frontage on Stony Brook Lane as it presently exists. Moreover, a mere grant of a “right-of-way” across land of others to access a public way, does not necessarily qualify as “frontage” for purposes of § 6, particularly where there is no evidence that it ever existed on the ground, or was used for access to a public way.

The term “frontage” is not defined in the Zoning Act. Under the usual rules of statutory construction, an undefined term in a statute is given its “plain and ordinary meaning” unless a contrary legislative intent is demonstrated. Henry v. Board of Appeals of Dunstable, 418 Mass. 841 , 843 (1994). Courts usually look to the dictionary definition to determine the plain and ordinary meaning of a word or term. However, the Supreme Judicial Court most recently employed the local, municipal by-law definition in determining whether a lot met the minimum statutory frontage requirement under § 6. See Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 , 258 (2003) (“Because G.L. c. 40A does not define ‘frontage,’ we look to the applicable town bylaw for a definition.”). [Note 3]

The 1942 By-law, which was in effect when Lot 62 was created, contained neither a frontage requirement nor a definition of frontage. The current By-law defines “Frontage” as “[a] continuous and uninterrupted portion of a sideline of a way, public or private between the sidelines of a lot…” [Emphasis added.] Integral to the By-law’s frontage definition is the term “way.” That is, in order to satisfy the definition, the claimed frontage must be along a “way” – a term also defined in the By-law. See, e.g., Marinelli, 440 Mass. at 262 (determining that the subject way met the by-law definition of “street” as used in the local frontage definition). Here, the current By-law defines the term “Street or Way” to include a private way [Note 4] in existence prior to the effective date of subdivision control in the Town, “having in the opinion of the Planning Board suitable width, suitable grades, and adequate construction….” Employing the By-law definitions of “Frontage” and “Street or Way” to interpret the term “frontage” as used in § 6, therefore, it is evident that, as long as the Plaintiff is claiming to have frontage on a private way in existence prior to subdivision control in Norwell, he cannot avoid an adequacy determination by the Planning Board, with respect to the statutory 50-foot minimum needed to qualify the Lot for separate lot protections under § 6. And it is undisputed that the Planning Board has not made such a determination with regarding the right-of-way across Lot 62.

In an attempt to avoid this problem, the Plaintiff asserts that the “existing right-of-way” which crosses Lot 62 provides 260 feet of frontage on a “way” as that term was defined in the 1942 By-law, [Note 5] and that it is the 1942 definition (not the current definition) which must apply. This argument is without merit. Although § 6 would protect a residential lot of record from subsequent increases in “area, frontage, width, yard or depth” requirements, it would not provide blanket protection from all subsequent changes in a by-law. Here, the 1942 By-law does not define or employ the term “way” in the context of frontage requirements. Rather, the 1942 By-law employs the term “way” only in the context of measuring required front yard building setbacks and corner clearances. Thus, the By-law’s subsequently amended definition of “way” cannot be construed as an “increase” in frontage requirements from which a residential lot of record could be exempted under § 6.

In any event, neither the testimony of the Plaintiff’s 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 Stony Brook Lane where it currently exists in the vicinity of Lot 62. The 1948 Deed refers only to the “existing right-of-way” from land of Adam Brooks, and to a westerly continuation of that “existing right-of-way” running towards Main Street.

In an attempt to show that the “right-of-way” across Lot 62 has been identified as “Stony Brook Lane,” the Plaintiff points to post-1960 plans of record for other lots in the area, as well as to recent Norwell Assessors’ maps. The labeling of Stony Brook Lane, however, neither pre-dates, nor is contemporaneous with, the 1948 Deed. Nor is there any evidence of the name “Stony Brook Lane” appearing in the Plaintiff’s chain of tile. [Note 6] Notably, neither the 1948 Deed, nor the 1948 Plan, refer to the “existing right-of-way” as “Stony Brook Lane.”

To the extent that the Plaintiff is relying on the Norwell Assessors maps to prove that Stony Brook Lane crosses Lot 62, there is nothing before me to show what information was used by the Assessors in creating the maps, or any evidence to support their accuracy. The dotted lines on the Assessors map indicating Stony Brook Lane as a private “R.O.W.” do not correspond with location and direction of the “existing right of way” shown by the surveyor on the 1948 Plan as extending into Lot 62 from its southerly boundary, and then northwesterly to the Lot’s northwest boundary on the MacKay land. Instead, the Assessors maps: (1) show Stony Brook Lane as extending completely across Lot 62 from its northwesterly boundary to its easterly boundary (and not into land formerly of Adam Brooks as shown on the 1948 Plan), and (2) shows the westerly continuation of Stony Brook Lane being located much further south than indicated by the 1948 Deed description and Plan, particularly when put in the context of the MacKay landholdings at the time.

Even if the “existing right of way” is considered a branch of Stony Brook Lane, there was no evidence that it currently exists on the ground across or in the vicinity of Lot 62. [Note 7] Indeed, there is no evidence that the “existing right-of-way” across Lot 62 or across the MacKay/Hatch land was ever improved and used as access to Main Street. There is, moreover, no record of any rights having been granted to MacKay or her predecessors in title over the “portion of the right of way which crosses land now or formerly of one, Hatch” to reach Main Street. The very language of the 1948 Deed casts some doubt that such rights existed. [Note 8]

The 1948 Deed makes no reference to any recorded reservation or grant of rights in the “existing right-of-way.” And the Plaintiff’s expert admitted that he was unable to find any recorded reference to a grant or reservation of the “right of way” from the Adams Brooks land; that he was unable to find any recorded reference to the grant of any rights over land “formerly of one, Hatch;” and that he was unable to find any references in recorded plans and deeds to “Stony Brook Lane” prior to the 1960’s. Further, in view of Williams’ expert’s testimony that he “doesn’t know how [Stony Brook Lane] physically exists on the ground,” I do not credit the expert’s statement that there was “no doubt in his mind” that the right-of-way described in the 1948 Deed is Stony Brook Lane.

CONCLUSION

On the basis of the forgoing, I find that the Plaintiff failed to meet his burden to show that Lot 62 has the minimum fifty feet of frontage required by the 1st sentence in ¶ 4 of § 6 to qualify a separately owned lot of record for protection from the application of increased dimensional requirements. [Note 9] Accordingly, the Plaintiff, having failed to establish that Lot 62 is statutorily protected from application of the current By-law’s frontage requirements, including the requirement for a frontage determination by the Planning Board, the decision of the ZBA overturning the issuance of the Building Permit is sustained, and the Plaintiff’s appeal is dismissed. [Note 10]