Baldiga v. Board of Appeals of Uxbridge

Decision Date12 September 1985
Citation395 Mass. 829,482 N.E.2d 809
PartiesRobert S. BALDIGA, trustee, v. BOARD OF APPEALS OF UXBRIDGE et al. 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Henry J. Lane, Town Counsel, Whitinsville (Shelli C. Elfenbein, Somerset, with him), for town of Uxbridge & another.

William R. Baldiga, Boston, for plaintiff.

Before WILKINS, LIACOS, ABRAMS, NOLAN and O'CONNOR, JJ.

ABRAMS, Justice.

At issue in this appeal is the interpretation of the second sentence of the fourth paragraph of G.L. c. 40A, § 6, as amended by St.1979, c. 106. In January, 1984, the plaintiff appealed to a judge of the Superior Court from a decision of the board of appeals of Uxbridge denying building permits to the Keystone Builders Realty Trust for three contiguous lots. After the parties brought cross-motions for summary judgment, the judge granted the plaintiff's motion and denied the town's motion. Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974). The judge, in a comprehensive memorandum of decision, held that "the language of G.L. c. 40A, § 6, par. 4, sentence 2 indicates an intention on the part of the [L]egislature that lots continue to be entitled to 'grandfather' rights for five years from the effective date of zoning amendments. To require that plans for such lots be recorded or endorsed by January 1, 1976 would effectively restrict the applicability of this section contrary to the expressed legislative intent and sound principles of statutory construction." The town appealed and we granted its application for direct appellate review. We affirm.

The issue before us is whether the second sentence of the fourth paragraph of G.L. c. 40A, § 6 (1984 ed.), 2 provides "grandfather" protection to lots created by a plan which was recorded after January 1, 1976. The town asserts that the plaintiff is not afforded any "grandfather rights" by the sentence of G.L. c. 40A, § 6, at issue because: (1) the lots do not meet the requirements that the plan by which the plaintiff's lots were created be recorded or endorsed by January 1, 1976, and that the lots conformed to existing zoning requirements as of January 1, 1976; (2) the purpose and policies of the new chapter 40A in general are to allow municipalities to effectively amend zoning requirements, and of § 6 in particular, are to eliminate the practice of "checkerboarding"; and (3) the legislative history of the fourth paragraph of § 6 shows that the 1979 amendment, St.1979, c. 106, adding the second sentence, was not intended to have a continuing effect.

We summarize the facts agreed to by the parties. On November 14, 1979, Keystone Builders Realty Trust (trust), of which Robert S. Baldiga is the sole trustee, purchased a parcel of vacant land in the town of Uxbridge. The trust purchased the premises under the belief that it was entitled as a matter of law under G.L. c. 40A, § 6, to obtain permits allowing it to build a single-family home on each of the three lots constituting the premises. The premises are, and at all relevant times have been, located in an area zoned by the town as agricultural. At all times since the purchase of the premises, the plaintiff has intended to use each of the three lots to construct a single-family home, a use which is permitted as of right in an agricultural district under the town zoning by-law.

The town zoning by-law in effect on and before May 13, 1980, required that building lots in an agricultural zone have a minimum of 200 feet frontage and a minimum lot size of one acre. "Lot 25" has 200 feet total frontage and is 1.20 acres in area; "Lot 26" has 200 feet frontage and is 1.08 acres in area: "Lot 27" has 200 feet frontage and is 1.00 acre in area. Each of the three lots conformed at all times between November 14, 1979, and May 13, 1980, to the town's zoning requirements for a lot on which a single-family home could be constructed. The three adjoining lots have been held in common ownership at all relevant times. The parties stipulated that the lots were shown on a plan containing the Uxbridge planning board's endorsement, dated February 20, 1979, "Approval Under Subdivision Control Law Not Required." The parties also agree this plan was recorded prior to May 20, 1980, the effective date of the relevant zoning amendment. In addition, the premises as a whole have not been held in common ownership with adjoining land by the trust or any other person at any time after November 14, 1979.

On May 13, 1980, the town amended its zoning by-law to require that, effective May 20, 1980, building lots in an agricultural zone have a minimum of 300 feet frontage and a minimum lot size of two acres. In October, 1983, the trust filed timely and proper building permit applications for each of the three lots. The town's building inspector denied the applications. The plaintiff appealed to the town's board of appeals. The board of appeals denied the appeal on the ground that the lots did not have the 300 feet frontage required by the 1980 amendment to the town's zoning by-laws.

We turn first to the statutory language because it "is the principal source of insight into Legislative purpose." Commonwealth v. Lightfoot, 391 Mass. 718, 720, 463 N.E.2d 545 (1984). Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977). When the language is clear and unambiguous, it must be given its plain and ordinary meaning. Bronstein v. Prudential Ins. Co. of America, 390 Mass. 701, 704, 459 N.E.2d 772 (1984).

The sentence of § 6 at issue provides: "Any increase in [an] area ... requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January [1, 1976], whichever is later, to a lot for single ... family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with an[y] adjoining land and conformed to the existing zoning requirements as of January [1, 1976]...." The town contends that in the relevant sentence of § 6, fourth par., the words "as of January [1, 1976]" qualify all of the preceding requirements in that sentence: (1) the plan for the lot must have been "recorded or endorsed;" (2) the lot must have been "held in common ownership with an[y] adjoining land;" and (3) the lot must have "conformed to the existing zoning requirements." G.L. c. 40A, § 6. Under the town's interpretation, the plaintiff's lots would not benefit from the "grandfather rights" because the plan for the lots was not "recorded or endorsed" prior to January 1, 1976.

The plaintiff, on the other hand, argues that because the phrase "as of January [1, 1976]," qualifies only the condition relating to conformity with the zoning requirements, the lots meet all of the conditions necessary to take advantage of the "grandfather rights" in the relevant portion of § 6, including the requirement that the plan have been "recorded or endorsed." 3

We agree with the plaintiff. "It is the general rule of statutory as well as grammatical construction that a modifying clause is confined to the last antecedent unless there is something in the subject matter or dominant purpose which requires a different interpretation." Moulton v. Brookline Rent Control Bd., 385 Mass. 228, 230-231, 431 N.E.2d 225 (1982), quoting Druzik v. Board of Health of Haverhill 324 Mass. 129, 133, 85 N.E.2d 232 (1949). Furthermore, the first part of the second sentence of § 6 entitles an owner of property to an exemption from any increase in minimum lot size required by a zoning ordinance or by-law for a period of five years from its effective date or for five years after January 1, 1976, "whichever is later." G.L. c. 40A, § 6. The trial judge concluded that "this language manifests the Legislature's intent for the statute to have continuing applicability." We conclude, as we did in Adamowicz v. Ipswich, 395 Mass. 757, 762, 481 N.E.2d 1368 (1985), that "the statute looks to the most recent instrument of record prior to the effective date of the zoning change." If we were to interpret the "as of January [1, 1976]" clause as qualifying the "plan recorded or endorsed" condition, it would negate the effect of the words "whichever is later." As we read the statute, the phrase "as of January [1, 1976]" only modifies the condition immediately preceding, that requiring conformity with zoning laws.

We reject the town's contention that the statute's use of the word "conformed," rather than "conforms," to precede the phrase "to the existing zoning requirements as of January [1, 1976]" suggests that the plan and the lot must not only conform at some date to the zoning requirements in effect on January 1, 1976, but also must have been in existence in 1976 and conformed to the zoning requirements at that time. The town's argument ignores the fact that the statutory language consistently uses the past tense to describe all of the conditions needed for a lot to qualify for "grandfather" protection. The word "conformed" is thus appropriate in the context of the statutory provision as a whole and does not specifically signify that the lot or plan must have existed before 1976. See Walker v. Board of Appeals of Harwich, 388 Mass. 42, 51, 445 N.E.2d 141 (1983).

The town also argues that the interpretation...

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