Lee v. Board of Appeals of Harwich

• Decision Date: 12 January 1981
• Citation: 414 N.E.2d 619,11 Mass.App.Ct. 148
• Parties: Charles R. LEE et al. 1 v. BOARD OF APPEALS OF HARWICH et al. 2
• Court: Appeals Court of Massachusetts

Page 619

414 N.E.2d 619

11 Mass.App.Ct. 148

Charles R. LEE et al. ¹ v. BOARD OF APPEALS OF HARWICH et al. ²

Appeals Court of Massachusetts, Barnstable.

Argued Jan. 24, 1980.

Decided Jan. 12, 1981.

[11 Mass.App.Ct. 149] James M. Falla, Town Counsel, West Harwich, for the Board of Appeals of Harwich and another.

John J. McQuade, Jr., Boston, for John F. Pow and another.

Theodore L. Tillotson, Boston, for plaintiffs.

Before PERRETTA, ROSE and KASS, JJ.

ROSE, Justice.

The defendants, Pow, owners of Lot 3 on Davis Lane in Harwichport (hereinafter referred to as "the property" or "lot 3"), the board of appeals of the town of Harwich and the Building Commissioner of the town of Harwich, appeal from the Superior Court's judgment in favor of the plaintiffs, owners of land abutting lot 3, reversing a decision of the Board of Appeals which upheld the issuance by the building commissioner of a building permit for the construction of a single-family residence on the property under the Harwich zoning by-law On March 6, 1956, the Planning Board of Harwich, acting through its chairman, endorsed a plan on which lot 3 appeared "Approval under the subdivision control law is not required." ³ The planning board purported to act under G.L. c. 41, § 81P, but erred because the plan, on its face, showed a lot (lot 2) with no frontage on any way and, therefore, depicted a subdivision. G.L. c. 41, § 81L. Lot 3, however, met the minimum frontage requirements.

(hereinafter "the by-law") and the Zoning Enabling Act, G.L. c. 40A, as appearing in St.1975, c. 808, § 3 (hereinafter "the Act"). In addition, the defendants Pow take exception to the judge's determination that certain amendments of the by-law which became effective April 6, 1978, after the commencement of the action, do not render the property buildable. We are in agreement with that position, and we reverse the judgment of the Superior Court.

FIGURE A

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Twenty years later, on July 16, 1976, the Pows acquired lot 3 by deed from David M. Davis, one of the lot owners when the 1956 plan was endorsed and recorded in the Barnstable Registry of Deeds. At the time of recording, David M. Davis and Anne Hall Davis held all three lots in common ownership. In 1956, the minimum lot size for single-family residence use was 7,500 square feet. As lot 3 contained 11,978 square feet, it was in conformity with the minimum lot size requirements for a buildable lot at the time of recording in 1956. In 1966, the Town of Harwich amended its by-law to increase the minimum lot size to 15,000 square feet (with exceptions not here pertinent) and to 30,000 square feet in 1972. The three lots remained in common ownership until 1968, when the Davises "checkerboarded" them. ⁴

The question posed by the parties is whether the judge properly ruled that the building commissioner and, in turn, the board of appeals exceeded their respective authorities when they concluded that lot 3 is a "buildable lot" and issued a building permit for the construction of a single-family residence on that lot. The resolution of that question requires consideration of the impact on lot 3 of the improperly endorsed plan and the applicability of certain "grandfather" provisions in the Act and the Harwich by-law. The owners of lot 3 and the board of appeals urge that the facial defects in the 1956 plan should be ignored because G.L. c. 41, § 81P, as appearing in St.1963, c. 363, § 1, provides that endorsements by the planning board under that section "shall be conclusive on all persons." The defendants read too much into the phrase when they argue that it means that § 81P endorsements are impervious to judicial review. The propriety of such endorsements is subject to judicial review. See Bloom v. Planning Board of Brookline, 346 Mass. 278, 283, 191 N.E.2d 684 (1963). We will not lightly assume that the Legislature intended to insulate administrative action, often taken by a single individual, from correction, no matter how wrong or arbitrary the action may have been.

The defect in the 1956 plan as to lot 2 does not require that the division of the original parcel into smaller lots be seen as totally defective. While lot 2 lacked the requisite frontage under G.L. c. 41, § 81L, lot 3, on the face of the plan, was a lawful lot. An endorsement under G.L. c. 41, § 81P, however, does not obviate a separate inquiry into whether the lots depicted comply with the requirements of the by-law. Apart from the fact of adequate frontage of the newly created lots, an endorsement under § 81P does not address the question whether each new lot within the plan complies with the other dimensional requirements of the applicable zoning by-law. See Smalley v. Planning Bd. of Harwich, --- Mass.App. ---, --- - ---, ^a 410 N.E.2d 1219 (1980). An endorsement under § 81P does not mean that the lots within the endorsed plan are buildable lots.

At the time of the division of the parcel and recording of the plan in 1956, lot 3 satisfied the dimensional requirements of the zoning by-law then in effect. It continued to do so until 1966, when the minimum required lot size was increased to 15,000 square feet. The defendants concede that the exemption for nonconforming lots provided by G.L. c. 40A, § 5A, as appearing in St.1961, c. 435, § 1 (i. e., the "old zoning enabling act"), did not render this admittedly nonconforming lot buildable. ⁵ They argue, however, that the exemption provided by § 4B of the Harwich by-law extends the life of existing nonconforming lots. ⁶ While § 4B does not submit to easy interpretation, we are inclined to agree with the construction which the defendants urge. What is unclear under the by-law is whether § 4B was meant to apply to existing lots of record or lots which were lawful under the by-law at the time § 4B was adopted in 1972. Under the latter interpretation, lot 3 would not be a buildable lot because it did not meet the minimum lot size requirements in 1972. Indeed, under the lot combination provisions of G.L. c. 40A, § 5A (as amended and in effect in 1972), requiring that when adjacent undersized lots are owned in common such lots must be combined, the three lots on the plan may not have qualified as separate lots in 1966, when the minimum lot size requirement was increased to 15,000 square feet. We view the 1968 "checkerboarding" as a transparently ineffective attempt to defeat the lot combination provisions. Section 4B of the 1972 by-law, however, expressly provided that the lot combination provisions of G.L. c. 40A, § 5A, should not apply to plans endorsed under G.L. c. 41, § 81P.

In 1978, the town amended § 4B, clarifying its application. As amended, the section reads in pertinent part: "(e)xisting lots lawfully laid out by plan or deed which complied at the time of layout with applicable provisions of Zoning By-Laws, if any, may be built upon for single-family residential purposes provided" that the lots meet certain area, frontage and setback requirements. Since lot 3 complied at the time of the layout with the 1956 by-law and satisfies the area, frontage and setback requirements of the 1978 amendment to § 4B, lot 3 is a buildable lot.

Although the 1978 amendment of § 4B was not in effect when the plaintiffs commenced this action, it is appropriate that we consider the by-law in effect at the time we render our decision. Bradley v. School Bd. of Richmond, 416 U.S. 696, 711-716, 94 S.Ct. 2006, 2016-2018, 40 L.Ed.2d 476 (1974). This is particularly appropriate where, as here, a request for declaratory judgment on the effect of the amendment of the by-law is involved. Massachusetts Outdoor Advertising Council v. Outdoor Advertising Bd., --- Mass.App. ---, ---, ^b 405 N.E.2d 151 (1980).

Both the 1972 § 4B and the 1978 amended § 4B evince an intent on the part of the inhabitants of Harwich to "gr...