Planning Bd. of Norwell v. Serena

• Citation: 542 N.E.2d 314,27 Mass.App.Ct. 689
• Decision Date: 26 September 1989
• Docket Number: No. 88-P-440,88-P-440
• Parties: PLANNING BOARD OF NORWELL v. E. Anthony SERENA et al., 1 individually and as trustees, 2 et al. 3
• Court: Appeals Court of Massachusetts

Page 314

542 N.E.2d 314

27 Mass.App.Ct. 689

PLANNING BOARD OF NORWELL v. E. Anthony SERENA et al., ¹ individually and

as trustees, ² et al. ³

No. 88-P-440.

Appeals Court of Massachusetts Plymouth.

Argued Jan. 10, 1989.

Decided Aug. 16, 1989.

Further Appellate Review Denied Sept. 26, 1989.

Chester A. Janiak, Boston, for E. Anthony Serena et al.

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

ARMSTRONG, Justice.

The Serenas, anticipating Norwell's adoption four days later of a zoning by-law amendment that would prevent use of their vacant land on Parker Street as two separate building lots fronting thereon, effected a transfer or transfers of title with the intention of securing the grandfather protection of G.L. c. 40A, § 6, fourth par., first sentence (1988 ed.) (making increases in dimensional requirements inapplicable to previously conforming lots held for single or two family residential use where such lots are "not held in common ownership with any adjoining land"). See Adamowicz v. Ipswich, 395 Mass. 757, 763-764, 481 N.E.2d 1368 (1985). One of the two resulting lots was put in the names of the Serenas as tenants by the entirety. The other was put in their names as trustees of Parker Street Realty Trust, of which they were the sole beneficiaries.

Not argued in this appeal is a question concerning the interpretation of the by-law before its amendment. The planning board took the position that the proposed division of the Serenas' land into two lots fronting on Parker Street did not comply with the dimensional requirements of the by-law before its amendment. The judge upheld the contrary position of the board of appeals ⁴ (we do not reach this question) but sustained the denial of two building permits on the ground that the two lots were held "in common ownership" for purposes of the zoning by-law despite the change in record ownership.

On that point the judge's ruling was, in our view, correct. The purpose of the statutory grandfather provision is, to be sure, to "protect[ ] a once valid lot from being rendered unbuildable for residential purposes," Sturges v. Chilmark, 380 Mass. 246, 261, 402 N.E.2d 1346 (1980), but only if there is compliance with statutory conditions. The condition that the nonconforming lot "not [be] held in common ownership with any adjoining land" represents a statutory codification of a principle of longstanding application in the zoning context: a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity. See Vetter v. Zoning Bd. of Appeal of Attleboro, 330 Mass. 628, 630, 116 N.E.2d 277 (1953); Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348, 353, 187 N.E.2d 499 (1963); Alley v. Building Inspector of Danvers, 354 Mass. 6, 7-8, 234 N.E.2d 879 (1968); Raia v. Board of Appeals of North Reading, 4 Mass.App.Ct. 318, 322, 347 N.E.2d 694 (1976); Arrigo v. Planning Bd. of Franklin, 12 Mass.App.Ct. 802, 803-804, 429 N.E.2d 355 (1981); Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass.App.Ct. 343, 349-350, 494 N.E.2d 14 (1986); Shafer v. Zoning Bd. of Appeals of Scituate, 24 Mass.App.Ct. 966, 967, 511 N.E.2d 635 (1987); DiCicco v. Berwick, 27 Mass.App.Ct. 312, 313-314, 537 N.E.2d 1267 (1989); Karet v. Zoning Bd. of Appeals of Worcester, 27 Mass.App.Ct. 439, 440, 539 N.E.2d 81 (1989).

In Sorenti v. Board of Appeals of Wellesley, supra, on which the judge relied, the court held that a landowner could not take advantage of a grandfather clause similar to that of G.L. c. 40A, § 6, fourth par., first sentence, by putting part of his property in the name of a straw the day before the town voted a dimensional (frontage) amendment to the zoning by-law. "The nonconforming exemption was [held] not to apply ... when the lot owner had adjoining land available for use in satisfying the [new] minimum frontage requirement. The rationale of such a provision is that an owner who has or has had adjacent land has it within his power, by adding such land to the substandard lot, to comply with the frontage requirement, or, at...