Dupont v. Town of Dracut

• Citation: 41 Mass.App.Ct. 293,670 N.E.2d 183
• Decision Date: 17 September 1996
• Docket Number: No. 95-P-419,95-P-419
• Parties: Mark DUPONT, trustee, 1 v. TOWN OF DRACUT.
• Court: Appeals Court of Massachusetts

Page 183

670 N.E.2d 183

41 Mass.App.Ct. 293

Mark DUPONT, trustee, ¹ v. TOWN OF DRACUT.

No. 95-P-419.

Appeals Court of Massachusetts,

Suffolk.

Argued April 16, 1996.

Decided Sept. 17, 1996.

Michael Najjar, Glen Falls, NY, for plaintiff.

Judith Pickett, Boston, for defendant.

Before WARNER, C.J., and ARMSTRONG and KASS, JJ.

WARNER, Chief Justice.

The plaintiff seeks to build a fourteen-unit housing project for the elderly on a lot situated in both the city of Lowell and the town of Dracut. The Lowell segment consists of 12,906 square feet and is located in an M-3 zoning district that allows multifamily housing. The Dracut portion contains 7,420 square feet and is located in a B-3 district that allows business use and prohibits residential use. As proposed, the structure would be situated on the Lowell portion of the lot with access and most of the required off-street parking situated on the Dracut portion. In order to meet Lowell's M-3 frontage requirement, frontage on the Dracut portion of the land would have to be added to the Lowell frontage. A two-family dwelling which predates Dracut's zoning by-law is now located on the Lowell portion of the property. Dracut recognizes the residential use as a legally nonconforming one.

The plaintiff brought an action in the Land Court seeking a declaration that the town of Dracut may not prohibit the plaintiff from adding the Dracut frontage to the Lowell frontage ² to meet Lowell's frontage requirement and that the Dracut zoning by-law does not prohibit parking on the Dracut land to service the multifamily building in Lowell, or, in the alternative, that application of the Dracut by-law constitutes a taking for which the town must pay just compensation.

The Land Court judge granted summary judgment for the town, ruling that the town had the right to prohibit the use of land for an accessory use (access and parking) to a use (residential) not permitted in that district. She ruled further that there was no unconstitutional taking because a nonconforming two-family dwelling, which Dracut recognizes as a legally nonconforming use with respect to the portion of the lot located in Dracut, exists on the locus. Thus, the judge stated, the dwelling may remain there and, perhaps, be modified pursuant to the provisions of G.L. c. 40A, § 6. She noted further that the entire property is undersized with regard to the Dracut by-law. Were it not for the existing legally nonconforming structure, the judge said, the lot would not be buildable under the Dracut by-law without a variance from the lot area requirements even if it were located entirely within Dracut. We agree with the reasoning and conclusion of the Land Court judge and only remand the case to the Land Court for the entry of an appropriate declaratory judgment in accordance herewith.

The plaintiff argues on appeal that the judge erred in ruling that Dracut had the right to deny the use of the land for parking and access to a residential facility in Lowell because Dracut's zoning by-law does not explicitly regulate split lots--single lots extending over more than one zoning district. He further contends that the denial was an arbitrary and invalid restriction and that the judge should have considered his claim that the town had not applied this restriction to similar lots.

Whether in the same or two different municipalities, if a lot is located in two different zoning districts, a town may prohibit the portion in one district from being used for an accessory use to serve a principal use not allowed in that district. Brookline v. Co-Ray Realty Co., 326 Mass. 206, 93 N.E.2d 581 (1950). Chelmsford v. Byrne, 6 Mass.App.Ct. 848, 372 N.E.2d 1307 (1978).

The plaintiff points out that in Co-Ray, the Brookline by-law specifically provided that when a lot is located partially in Brookline and partially in an adjacent city or town, the regulations and restrictions of the by-law would apply as if the entire lot were in Brookline. Brookline v. Co-Ray Realty Co., 326 Mass. at 211, 93 N.E.2d 581. While the Dracut zoning by-law contains no such provision, the existence of such a provision is not determinative. See Chelmsford v. Byrne, supra, which cites no analogous provision. The determining factor is whether the accessory use conforms to "the principle that, ordinarily, a municipality ought to be accorded the right to carry out the policies underlying its zoning ordinance or by-law with respect to the actual uses made of land within its borders." Burlington Sand & Gravel, Inc. v. Harvard, 26 Mass.App.Ct. 436, 439, 528 N.E.2d 889 (1988). See Tofias v. Butler, 26 Mass.App.Ct. 89, 93-96, 523 N.E.2d 796 (1988), in which the split lot issue is discussed and the cases are collected.

The situation here is similar to that of Co-Ray. In that case, a lot was located partly in a single residence district of Brookline and partly in Boston. The applicant proposed to build an apartment house on the Boston portion and to use the Brookline portion as a rear yard and service entrance. Brookline brought an action to enjoin this use of the Brookline portion because it was not authorized in a single residence district of Brookline. The court, stating that Brookline was properly seeking "to enforce its own zoning by-law and the ban therein against the use of the Brookline land as a locus for carrying on the numerous inevitable service activities accompanying the occupancy of an apartment house," 326 Mass. at 212, 93 N.E.2d 581, ordered the entry of a decree enjoining the use. Id. at 214, 93 N.E.2d 581. Likewise, the proposed use in this case would serve a principal use in Lowell prohibited by Dracut's zoning by-law. The plaintiff notes that parking facilities are a permitted use in Dracut's B-3 business district. ³ But the incidental use of the Dracut land for parking for an apartment house does not transform it into a commercial parking lot. See Co-Ray at 212, 93 N.E.2d 581, where the court determined that an apartment building's landscaped rear yard could not be considered as a "park or ornamental grounds," a use otherwise permitted by Brookline's by-law. See also Harrison v. Building Inspector of Braintree, 350 Mass. 559, 561, 215 N.E.2d 773 (1966), holding that use of access roadways in...