Palitz v. Zoning Bd. of Appeals of Tisbury

• Decision Date: 03 March 2015
• Docket Number: SJC–11678.
• Citation: 26 N.E.3d 175,470 Mass. 795
• Parties: Suzanne PALITZ, trustee, v. ZONING BOARD OF APPEALS OF TISBURY & another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 795

26 N.E.3d 175

Suzanne PALITZ, trustee¹

v.ZONING BOARD OF APPEALS OF TISBURY & another.²

SJC–11678.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Nov. 6, 2014.

Decided March 3, 2015.

Daniel P. Dain, Boston, for the plaintiff.

Jonathan M. Silverstein (Katherine D. Laughman with him), Boston, for the defendants.

The following submitted briefs for amici curiae:

Gareth I. Orsmond & Jesse W. Abair, Boston, for Massachusetts Association of Regional Planning Agencies & others.

Edward J. DeWitt, Falmouth, for Association to Preserve Cape Cod.

Benjamin Fierro, III, Boston, for Home Builders and Remodelers Association of Massachusetts, Inc.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

CORDY

, J.

In this appeal, we must decide whether a division of land pursuant to the subdivision control law's existing structures exemption, G.L. c. 41, § 81L

(§ 81L ),³ entitles the structures on the resulting lots to “grandfather” protection against new zoning nonconformities created by the division. As is more fully set forth herein, the plaintiff is the most recent owner of a lot in the town of Tisbury (town). The lot was created in 1994 by a division of land pursuant to the existing structures exemption. On the lot is a structure built before both the subdivision control law and the Zoning Act, St. 1975, c. 808, went into effect.

The plaintiff sought a permit to tear down the existing structure and build a new one, somewhat larger and taller than the existing structure. The permit was denied on zoning grounds, and the plaintiff appealed to the Land Court. A judge in the Land Court concluded that the § 81L

division created new zoning nonconformities that deprived the plaintiff's dwelling of the grandfather status it might have had under the Zoning Act. As a result, the plaintiff, who sought to tear down and rebuild her dwelling approximately ten feet taller, was required to obtain a variance.

We conclude that an exemption from the subdivision control law entitles a landowner to an endorsement that planning board approval is not required for the division of qualifying properties into separate lots, each with its own structure, but that such an endorsement has no bearing on each structure's compliance with zoning bylaws. See Alley v. Building Inspector of Danvers, 354 Mass. 6, 7–8, 234 N.E.2d 879 (1968)

. In light of the new zoning nonconformities created by the division of land in this case, a variance was required—and, in fact, was previously granted to the former owner—to make the plaintiff's current dwelling lawful. A variance cannot, however, serve as a launching pad for the expansion of zoning nonconformities. See Mendes v. Board of Appeals of Barnstable, 28 Mass.App.Ct. 527, 531, 552 N.E.2d 604 (1990). Consequently,

we agree with the Land Court judge that, in order to proceed with her project, which would have eliminated an abutter's view of Vineyard Haven Harbor, the plaintiff was required to obtain a new or amended variance.⁴

1. Background. We summarize the facts relied on by the Land Court judge, supplemented where necessary by the undisputed facts in the record. See 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 693, 964 N.E.2d 318 (2012)

. From 1923 until 1994, the parcels of land now known and numbered as 83, 87, and 89 Main Street in the town were held in common ownership (original tract). Three single-family residential buildings stood closely clustered on the original tract. The town adopted a local zoning bylaw in 1959, and the subdivision control law went into effect in 1974.

In 1994, the owner of the original tract, Michael Putziger, sought to divide the land into three lots, such that a single dwelling would stand on each lot, in conformance with the existing structures exemption from the definition of “subdivision” in § 81L

. Putziger submitted a plan to the town's planning board and received an “approval not required” endorsement pursuant to G.L. c. 41, § 81P (§ 81P ) (ANR endorsement). The ANR endorsement stated that it did “not stay enforcement of zoning violations.” The plan depicting the endorsement and the three newly created lots was duly recorded.

The new lot at 87 Main Street, as created by the § 81L

plan, did not conform to the town's zoning bylaw regarding minimum lot size and frontage requirements. The creation of the new lot also rendered the dwelling located thereon nonconforming with respect to its front and southern side yard setbacks. Putziger sought variances from the zoning board of appeals of Tisbury (zoning board) to make the lot and dwelling lawful and, therefore, saleable as such.⁵ In 1995, the zoning board granted the variances, finding: “There will be no change in the appearance or use of the

buildings on the ... properties and their relation to adjoining ... properties. Therefore, desirable relief may be granted without either a substantial detriment to the public good or substantial derogation from the intent or purpose of this by-law” (1995 variance). The variance was recorded, and 87 Main Street was sold soon thereafter.

In 2007, the plaintiff acquired 87 Main Street. In 2012, she sought a building permit to tear down the existing dwelling and construct a new dwelling that, while maintaining the same footprint, would have been approximately ten feet taller and added a bedroom, a third floor, and a full basement. The zoning enforcement officer refused to issue the building permit unless the zoning board amended the 1995 variance. As a result, the plaintiff applied for an amended or new variance, which application was denied, in part, because the increased height of the new dwelling—in conjunction with the nonconforming front yard setback—would have eliminated the view of an abutter.⁶

The plaintiff appealed the zoning board's decision to the Land Court and moved for summary judgment. The plaintiff argued that 87 Main Street was entitled to grandfather protection under the Zoning Act, G.L. c. 40A, § 6

,⁷ because the dwelling predated the town's zoning bylaw and the lot was created pursuant to the existing structures exemption from the subdivision control law. As such, she reasoned that neither the 1995 variance nor an amended variance was necessary to her project. The judge disagreed, holding that the ANR endorsement did not establish zoning compliance and, as a result, 87 Main Street was not rendered lawful for zoning purposes by the grandfather protection afforded

by § 6

. Rather, 87 Main Street was rendered lawful by the 1995 variance, and consequently, an amendment to that variance was required for the plaintiff to enlarge her dwelling. Finding that the denial of the amendment was neither arbitrary nor capricious, the judge granted summary judgment in favor of the zoning board. We granted the plaintiff's application for direct appellate review and now affirm the judgment of the Land Court.

2. Discussion. a. Analytical framework. We review de novo a judge's decision granting summary judgment to the zoning board. 81 Spooner Road, LLC, 461 Mass. at 699, 964 N.E.2d 318

. “Summary judgment is appropriate if there is no genuine issue of any material fact and the moving party is entitled to a judgment as a matter of law.” Conley v. Massachusetts Bay Transp. Auth., 405 Mass. 168, 173, 539 N.E.2d 1024 (1989)

. “Summary judgment, when appropriate, may be rendered against the moving party.” Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). “An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and [her] ruling was correct as a matter of law.” M.P.M. Bldrs., LLC v. Dwyer, 442 Mass. 87, 89, 809 N.E.2d 1053 (2004), quoting Route One Liquors, Inc. v. Secretary of Admin. & Fin., 439 Mass. 111, 115, 785 N.E.2d 1222 (2003).

Under the subdivision control law, a person may not subdivide a tract of land unless he or she has first submitted a plan of the proposed subdivision for approval by the town's planning board. G.L. c. 41, § 81O

. However, planning board approval is not required for certain divisions of land that are specifically exempted from the definition of “subdivision” in § 81L. See G.L. c. 41, § 81P. A plan falling within such an exemption is entitled to an ANR endorsement pursuant to § 81P. See Citgo Petroleum Corp. v. Planning Bd. of Braintree, 24 Mass.App.Ct. 425, 426–427, 509 N.E.2d 284 (1987).

An ANR endorsement allows a plan to be recorded and “creates a ‘zoning freeze,’ in which the laws applicable to the lot at the time of endorsement remain applicable for a period of three years.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 725 n. 9, 660 N.E.2d 369 (1996)

. An ANR endorsement does not, however, render a lot compliant with zoning laws. Alley, 354 Mass. at 7–8, 234 N.E.2d 879. A landowner may nonetheless avoid such compliance by obtaining a variance or by seeking grandfather protection for the property under the Zoning Act, G.L. c. 40A, § 6. Grandfathered structures and uses may be extended or altered without obtaining a variance, so long as “(1) the extensions or changes

themselves comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures.” Rockwood v. Snow Inn Corp., 409 Mass. 361, 364, 566 N.E.2d 608 (1991)

.

b. Grandfather status of 87 Main Street. The plaintiff's lot, 87 Main Street, was created through a division of land pursuant to the existing structures exemption. Prior to that division, the existing structure's northern side yard setback was already nonconforming with the town's zoning bylaw. Because the structure predated the effective date of the bylaw, it appears to have constituted a preexisting nonconforming structure entitled to grandfather status under the Zoning Act.⁸ G.L. c. 40A, § 6

.

Although preexisting nonconforming status runs with the land, Derby...