LOIS A. JONES v. THE TOWN OF HARWICH

The instant action was initiated pursuant to G.L. c. 240, § 14A by the plaintiff, Lois Jones (plaintiff / Jones). Ms. Jones seeks a judicial determination concerning the extent to which Article IV and Article VI, Table 2 Area Regulations and Table 3 Height and Bulk Regulations of the Harwich Zoning Bylaw (Zoning Bylaw) apply to her parcel of land on Sea Street Extension in Harwich, Massachusetts. Asserting that her property is exempt under G.L. c. 40A, § 6, Jones asks this court to conclude that the dimensional and area regulations of the Zoning Bylaw do not apply to her property. To this end, the plaintiff has filed a Motion for Summary Judgment.

For its part, the Town of Harwich (defendant / Town) objects to this request arguing that the court may not, pursuant to G.L. c. 240, § 14A, determine the applicability of G.L. c. 40A, § 6 to a parcel of property. The Town has moved to strike the affidavits and exhibits submitted in support of the plaintiff’s reply brief. It has, as well, filed a cross-motion for summary judgment.

After oral argument and upon the written record before it, this court will deny the defendant’s Motion to Strike and its Cross-Motion for Summary Judgment. It will allow the plaintiff’s Motion for Summary Judgment.

Background

Ms. Jones owns a parcel of registered land appearing as Lot 3 (locus / property) on Land Court Plan 8081-B. [Note 1] Lot 3 was created as part of a subdivision on July 20, 1925. [Note 2] It abuts Lots 2 and 4, a Way, and Nantucket Sound. [Note 3] Lot 2 was conveyed by J. Fred McCarthy to Albert G. and Ida A. Price on October 13, 1925. [Note 4] Lot 3 was conveyed by J. Fred McCarthy to Biddle R. Thompson on August 30, 1926. [Note 5] Lot 4 was conveyed by J. Fred McCarthy to Harry T. and Harriet I. Gerrish on September 24, 1925. [Note 6] All three lots follow separate and distinct chains of title. [Note 7] Since it was first conveyed by the common grantor in 1926, Lot 3 has never been held in common ownership with either of the abutting lots. [Note 8]

The Town first adopted its Zoning Bylaw on February 1, 1951. [Note 9] The current version of the Bylaw was adopted in 2010. [Note 10] The plaintiff seeks a judicial determination regarding the applicability of Articles IV [Note 11] and VI [Note 12] of the Bylaw to her property. [Note 13]

Article IV of the Zoning Bylaw includes sections 325-6 and 325-7. [Note 14] Section 325-7 provides in pertinent part, as follows:

Except as herein provided or as specifically exempted by the Zoning Act, the provisions of this bylaw shall apply to the erection, construction, reconstruction, alteration or use of buildings and structures and to the use and creation of lots. As provided herein and in the Zoning Act, existing uses and structures lawfully established or constructed which do not comply with the provisions of this bylaw may continue as nonconforming. (emphasis added)

A. Existing lots lawfully laid out by plan or deed which complied at the time of layout with applicable provisions of zoning bylaws, if any, may be built upon for single-family residential purposes, provided that:

(1) Said lots have 75 feet of frontage and 10,000 square feet of area;

(2) The buildings to be located thereon are set back at least 10 feet from side and rear lot lines and at least 25 feet from street lot lines and the buildings to be constructed on said lot will not exceed the maximum site coverage restrictions of the zoning bylaw in effect when the lot was created or, if no such restrictions applied, coverage of buildings shall not exceed 35% of said lot for lots between 10,000 square feet and 15,000 square feet and 25% for lots over 15,000 square feet . . . [Note 15]

Article VI of the Zoning Bylaw includes sections 325-15 through 325-22, which set out the Area, Height, and Bulk Regulations for the improvement of a lot within the Town. [Note 16]

Lot 3 has 66.82 feet of frontage [Note 17] and contains over 12,000 square feet of area. [Note 18] It is located in a Residential – Medium Density (RM) zoning district. [Note 19] Under the Bylaw, a lot in the RM zoning district must contain 40,000 square feet of area, 150 feet of frontage, a 25 foot front yard setback, and 20 feet side and rear yard setbacks. Ms. Jones seeks a declaration that her property is not subject to these provisions of the Zoning Bylaw.

Summary Judgment Standard

Summary judgment is appropriate when “pleadings, depositions, answers to interrogatories, and responses to requests for admission…together with affidavits…show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). The moving party bears the burden of proving the absence of controversy over material facts and that he or she deserves a judgment as a matter of law. See Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226 , 232 (1997). Accordingly, when acting upon motions for summary judgment, this court is to determine “whether, 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 judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991).

“The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991), citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the . . . court demonstrates that the standard for the entry of summary judgment . . . is satisfied.” Kourouvacilis v. General Motors Corp., 410 Mass. at 713, quoting Celotex Corp. v. Catrett, 477 U.S. at 323-24. In cases where the “nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file.” Id.

A corollary to the moving party’s burden is that the court is to “make all logically permissible inferences” from the facts in the non-moving party’s favor. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). That said, “the right of a party facing summary decision to have the facts viewed in a favorable light . . . does not entitle that party to a favorable decision” and reliance upon mere “bald conclusions” is an inadequate means of defeating the motion. Catlin v. Bd. of Registration of Architects, 414 Mass. 1 , 7 (1992).

Mass R. Civ. P. 56(c) permits the disposition of controversies if in essence there is no real dispute as to the salient facts, such that resolution of the matter depends solely upon judicial determination of a question of law. For summary judgment to enter, the undisputed facts have to be sufficient to furnish the judge with evidence upon which the key question of law might be resolved. As this court is satisfied that there are no genuine issues of material fact outstanding, this matter is ripe for summary judgment.

Discussion

The plaintiff has requested a judicial determination pursuant to G.L. c. 240, § 14A regarding the extent to which Articles IV and VI, and the tables accompanying those sections, affect the locus. She argues that under the provisions of G.L. c. 40A, § 6, her property is exempt from the strictures of the Bylaw. Jones asserts in this regard, that Lot 3 is a nonconforming lot, has not been held in common ownership, and was in existence prior to the adoption of the first Zoning Bylaw in the Town.

The Town opposes the plaintiff’s request for a judicial determination under c. 240, § 14A. It argues that the statute nowhere contemplates that the court may determine the applicability of G.L. c. 40A, § 6 to a particular property. According to the Town, this court therefore lacks the requisite subject matter jurisdiction. The Town also asserts that in any event, the proper time to determine the applicability of G.L. c. 40A, § 6 occurs when the plaintiff seeks a building permit. It argues that it is a waste of judicial resources for the court to consider making such a determination before the plaintiff has exhausted her administrative remedies.

I. Jurisdiction

G.L. c. 240. § 14A provides in relevant part, as follows:

The owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, . . . for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. The right to file and prosecute such a petition shall not be affected by the fact that no permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for . . . .

The plain language of the statute suffices to refute the Town’s second argument. There is no need for a property owner to first apply for a building permit before invoking the provisions of section 14A. A property owner is entitled to a judicial determination even when “no permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for.” Id. Therefore, the plaintiff’s request will not be denied merely because she has yet to apply for a building permit.

The Town’s first argument appears to carry more weight, but under closer analysis, it must fail as well. G.L. c. 240, § 14A allows landowners to “to petition for a decision concerning the validity or invalidity of any zoning restriction applicable to [their] land.” Sturges v. Chilmark, 380 Mass. 246 , 249 (1980). A landowner may also petition under c. 240, § 14A for a determination as to the extent to which a zoning restriction affects her land. See Banquer Realty Co. v. Acting Bldg. Commr. of Boston, 389 Mass. 565 , 570-571 (1983). The statute is to be broadly construed. See Harrison v. Braintree, 355 Mass. 651 , 654 (1969). However, where the owner seeks a determination concerning the impact of something other than a zoning regulation, such as a special permit, this court is without subject matter jurisdiction. See Whitinsville Retirement Soc. v. Northbridge, 394 Mass. 757 , 763 (1985).

It is true that the language of the statute does not explicitly contemplate a judicial determination as regards the applicability of G.L. c. 40A to a property, since the statute is not a “municipal ordinance, by-law or regulation.” However, the plaintiff seeks not a determination of the applicability of G.L. c. 40A, § 6 per se, but rather a determination concerning the effect of the Bylaw upon the locus. Although an interpretation of G.L. c. 40A, § 6 may constitute a necessary element, it is secondary to the interpretation of the Zoning Bylaw. This court possesses the jurisdiction to consider G.L. c. 40A, § 6 within the context of a challenge to a zoning bylaw. See Massachusetts Broken Stone Co. v. Town of Weston, 45 Mass. App. Ct. 748 (1998), reversed on other grounds, 430 Mass. 637 (2000) (“We find it unremarkable that the courts have construed the application of the zoning statute (c. 40A) . . . to petitioners' property in actions brought pursuant to c. 240, s. 14A. Where the zoning and subdivision statutes determine how, or whether, a particular zoning by-law affects petitioners' property, such a determination clearly comes within the purview of c. 240, s. 14A.”).

As in the Massachusetts Broken Stone Co. case, a determination as to the applicability of G.L. c. 40A determines how and whether the Town’s Zoning Bylaw affects the plaintiff’s property. Indeed, the language of the Zoning Bylaw itself contemplates an analysis of G.L. c. 40A in determining the applicability of the Bylaw. Section 325-7 states in this regard that the Bylaw is applicable “[e]xcept as herein provided or as specifically exempted by the Zoning Act.” Given the circumstances pertaining herein, this court is satisfied that it is possessed of the necessary subject matter jurisdiction to address the merits of the plaintiff’s request.

II. Judicial Determination of the Zoning Bylaw

The plaintiff requests a determination regarding the extent to which Articles IV and VI of the Zoning Bylaw, affect the locus. The plaintiff argues that the dimensional requirements of the Bylaw are inapplicable to her property given the language of G.L. c. 40A, § 6.

There is no question that the plaintiff’s lot does not meet the requirements for a buildable lot in the RM zoning district. Her lot has 66.82 feet of frontage and in excess of 12,000 square feet of area. [Note 20] This is substantially less than the required 150 feet of frontage and 40,000 square feet of area. [Note 21] However, Ms. Jones’ property may qualify as a buildable lot if it falls within the definition of a preexisting nonconforming lot. Section 325-7(A) is the provision of the Bylaw that pertains to preexisting nonconforming lots. That section provides that, unless otherwise exempted by the Zoning Act, if (1) an existing lot complied with the applicable zoning bylaw at the time it was laid out, and (2) it has 75 feet of frontage and (3) 10,000 square feet of area, a single family residence may be constructed on thereon. [Note 22]

The plaintiff’s lot was lawfully laid out by a plan in 1925, and was first deeded to a purchaser in 1926. The first Town Zoning Bylaw was adopted in 1951. As there was no Zoning Bylaw in effect at the time Lot 3 was laid out, there could be no Bylaw requirements to satisfy. Consequently, Lot 3 meets the first criterion qualifying it as a preexisting nonconforming lot. Lot 3 has more than 10,000 square feet of area, so it meets the third criterion. However, Lot 3 has only 66.82 feet of frontage, whereas the Zoning Bylaw requires 75 feet. In the absence of an exemption under G.L. c. 40A, the Zoning Act, Lot 3 does not constitute a buildable preexisting nonconforming lot under § 325-7(A) and the dimensional requirements of the RM Zoning District are applicable. The court now turns its attention to the Zoning Act to determine whether there exists a frontage exception for Lot 3.

G.L. c. 40A, § 6 encompasses preexisting uses, structures, and permits. The pertinent language for purposes of determining the applicability of the Zoning Bylaw to Lot 3 is as follows:

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 at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.

As correctly noted by the plaintiff, “the relevant ‘time of recording or endorsement’ is September 10, 1948, which is the date of a Transfer Certificate of Title certifying ownership of Lot 3 in Harold D. Archer.” [Note 23] Predicated upon the affidavit of Yvonne P. Silva, a title examiner, as submitted by the plaintiff, Lot 3 has never been held in common ownership with either of the abutting properties (Lots 2 and 4). Lot 3 has more than 50 feet of frontage, and more than five thousand square feet of area. Therefore, Lot 3 enjoys the protections afforded by G.L. c. 40A, § 6 against any “increase in area, frontage, width, yard, or depth requirements.”

Conclusion

In light of the foregoing discussion, this court is satisfied that Lot 3 is not subject to the frontage, width, area, or yard setback dimensional requirements of the Harwich Zoning Bylaw, as the said Lot is exempted therefrom under G.L. c. 40A, § 6.

In view of the foregoing, it is hereby

ORDERED that the Defendant’s Motion to strike is hereby DENIED.

It is further

ORDERED that plaintiff’s Motion for Summary Judgment is hereby ALLOWED.

It is further

ORDERED that the Defendant’s Cross-Motion for Summary Judgment is hereby DENIED.

Judgment to issue accordingly.

SO ORDERED

By the Court (Grossman, J.)