Preston v. BD of Appeals of Hull

• Decision Date: 08 December 1999
• Docket Number: P-1266
• Citation: 51 Mass. App. Ct. 236,744 N.E.2d 1126
• Court: Appeals Court of Massachusetts
• Parties: (Mass.App.Ct. 2001) ANNE PRESTON vs. BOARD OF APPEALS OF HULL & another. <A HREF="#fr1-1" name="fn1-1">1 98-

744 N.E.2d 1126 (Mass.App.Ct. 2001)

ANNE PRESTON vs. BOARD OF APPEALS OF HULL & another.¹

98-P-1266

Court of Appeals of Massachusetts

December 8, 1999.

March 30, 2001.

County: Plymouth.

Present: Kass, Greenberg, & Beck, JJ

Zoning, Nonconforming use or structure, Lot, Exemption, Building permit. Statute, Construction

Civil action commenced in the Superior Court Department on August 26, 1997.

The case was heard by Suzanne DelVecchio, J., on motions for summary judgment.

Walter L. Sullivan for the plaintiff.

James B. Lampke, Town Counsel, for the defendants.

F. Sydney Smithers, for The Abstract Club & another, amici curiae, submitted a brief.

BECK, J.

The plaintiff owns two vacant contiguous lots in Hull, neither of which complies with the current zoning by-law. She appeals from a Superior Court judgment affirming the denial of her application for a building permit for one of the lots. The building commissioner, upheld by a decision of the board of

appeals of Hull, denied the plaintiff's application on the ground that under a long-standing zoning principle, the two noncomplying lots had merged into a single conforming lot. See Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689, 690 (1989), S.C., 406 Mass. 1008 (1990); Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 736 (1999). Relying on the allegedly plain language of the first sentence of G. L. c. 40A, § 6, fourth par., and on its legislative history, the plaintiff claims she is entitled to an exemption from the zoning by-law with which her lots are not in compliance because the lots were in separate ownership at the time of the amendments to the by-law. The amici, the Abstract Club and the Massachusetts Conveyancers Association, Inc., support her argument. We affirm.

Facts. The plaintiff purchased two lots in the fall of 1987, one in September and the other in November. The lots are rectangular and have identical dimensions: fifty feet of frontage on Edgewater Road in Hull; depth of 125 feet; and therefore an area of 6,250 square feet. The lots are contiguous along a side lot line. A substantial portion of the rear of each lot is below the mean high water mark of the Weir River.

Those dimensions conformed to the Hull zoning by-law until October, 1969, when the town increased the minimum frontage requirement to sixty feet and the minimum area requirement to 6,500 square feet. A second amendment in 1978 increased the minimum dimensions again, this time to seventy-five feet of frontage and 12,000 square feet of area. At the time of these zoning changes, the lots were separately owned.

In the fall of 1996, nine years after she purchased the lots, the plaintiff filed a "buildable lot inquiry form" requesting permission to build on one of the lots. The Hull building department rejected the request, placing an "x" on the form in the space before the item, "Does not conform with Chapter 40A, Section 6 as per information provided." The space labeled "reason" contained the following explanation: "[The] [p]arcel has been held in common ownership with [the other parcel] since Nov. 6, 1987. The parcel became nonconforming on October 20, 1969. These two parcels constitute one conforming lot." See Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 528-529 (1990) (defining "nonconforming").

The plaintiff appealed to the board of appeals (board) pursuant to G. L. c. 40A, § 15, claiming that, because the lots were separately owned at the time they became nonconforming, both lots were exempt from compliance with the increased minimum frontage and area requirements, i.e., "grandfathered," under the first sentence of the fourth paragraph of § 6. A majority of the three-member board rejected this argument and affirmed the commissioner's decision, whereupon the plaintiff filed an action for judicial review pursuant to G. L. c. 40A, § 17. Finding "no compelling reason to depart [from] the widely-accepted merger doctrine," a Superior Court judge allowed the board's motion for summary judgment and affirmed the action of the commissioner and the board.

Discussion. "A basic purpose of the zoning laws is 'to foster the creation of conforming lots.' . . . [T]his purpose . . . is reflected in the zoning principle that precludes an owner from availing [herself] of a nonconforming exemption unless [she] includes [her] adjacent land in order to minimize the nonconformity." Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. at 736, quoting from Murphy v. Kotlik, 34 Mass. App. Ct. 410, 414 n.7 (1993). "[A]djacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities." Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 522 (1987) (citing cases). "[This] general rule has been consistently applied, before and after the enactment of [our current zoning enabling act, St. 1975, c. 808]." Bobrowski, Massachusetts Land Use and Planning Law § 5.3.1, at 199 (1993). See Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286, 289 (1979) (citing Batchelder v. Rand, 117 Mass. 176, 178 [1875], and Orr v. Fuller, 172 Mass. 597, 600 [1899], noting that even before the advent of zoning laws, where contiguous parcels were conveyed as separate parcels, the whole tract constituted one "lot" for purposes of determining attachment of a mechanic's lien); Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. at 690 (citing cases); DiStefano v. Stoughton, 36 Mass. App. Ct. 642, 645 (1994).

The plaintiff argues, however, that because her lots were separately owned at the time of the amendments to Hull's zoning by-law, the first sentence of the fourth paragraph of G. L. c. 40A, § 6, entitles her to an exemption from the more restrictive zoning provisions. That sentence provides as follows: "Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner[,] was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage."

This provision "grandfathers" once buildable lots held in separate ownership at the time a zoning change resulted in a particular parcel losing its status as a valid residential lot. The purpose of this provision is "to freeze and minimize substandard lots," Giovannucci v. Board of Appeals of Plainville, 4 Mass. App. Ct. 239, 242 (1976) (concerning G. L. c. 40A, § 5A, the predecessor of our current § 6), while at the same time protecting landowners from the hardship of not being able to use a once valid residential lot. See Sturges v. Chilmark, 380 Mass. 246, 261 (1980); Adamowicz v. Ipswich, 395 Mass. 757, 764 (1985); Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. at 690. Compare Vetter v. Zoning Bd. of Appeal of Attleboro, 330 Mass. 628, 630 (1953) (same principle, local zoning by-law); Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348, 353 (1963) (same). The question is whether G. L. c. 40A, § 6, fourth par., entitled the plaintiff to build on each of her nonconforming lots.

The plaintiff argues that the plain words of § 6 -- "[a]ny increase in area [or] frontage . . . shall not apply to a lot . . . which at the time of recording . . . was not held in common ownership" -- apply to her lots. We have found no case precisely on point. Although there are cases that reject the merger doctrine even with commonly held lots, those cases are generally distinguishable. In Carciofi v. Board of Appeal of Billerica, 22 Mass. App. Ct. 926 (1986), cited in the board's decision in support of the plaintiff's position, we held that there was "no single ownership of both lots" at any time, id. at 927, even though the husband and wife were clearly the parties in interest in both lots. That case is a two-page rescript which has never been cited and has been undermined by subsequent case law. Cf. DeStefano v. Stoughton, 36 Mass. App. Ct. at 644 (rejecting "checkerboard" conveyances and determining that key is not form of ownership but control). Other cases grandfathering undersized lots despite common ownership involve indulgent local zoning by-laws, rather than G. L. c. 40A. See Clarke v. Board of Appeals of Nahant, 338 Mass. 473 (1959) (which the Supreme Judicial Court in Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658, 661 [1965], described as addressing an "unusual by-law and an ambiguous amendment"); Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 (1981); Seltzer v. Board of Appeals of Orleans, 24 Mass. App. Ct. 521.

The "crucial inquiry for grandfathering purposes is the 'status of the lot immediately prior to the zoning change' that rendered the lot nonconforming." Bobrowski, Handbook of Massachusetts Land Use and Planning Law § 5.3.1, at 198, quoting from Adamowicz v. Ipswich, 395 Mass. at 762-763. See Boulter Bros. Constr. Co. v. Zoning Bd. of Appeals of Norfolk, 45 Mass. App. Ct. 283, 286-287 (1998). There is no dispute that the lots at issue here were separately owned at the time of the zoning changes.

We thus confront the apparent conflict between the preexisting common law principle of merger and the words of G. L. c. 40A, § 6. "As has long been recognized, a statute should not be interpreted as being at odds with the common law 'unless the intent to alter it is clearly expressed.'" Commonwealth v. Burke, 392 Mass. 688, 690 (1984), quoting from Commonwealth v. Knapp, 9 Pick. 495, 514 (1830). We read a statute "in light of the common law that existed at the time the statute was enacted," even when the Legislature has omitted a proposed amendment on point. Guaranty-First Trust Co. v. Textron, Inc., 416 Mass. 332, 336 (1993). See Ferullo's Case, 331 Mass. 635, 637 (1954) ("Statutes are to be construed in the...