Williams v. Bd. of Appeals of Norwell, SJC-13230

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation490 Mass. 684,194 N.E.3d 168
Docket NumberSJC-13230
Decision Date16 September 2022

490 Mass. 684
194 N.E.3d 168



Supreme Judicial Court of Massachusetts, Plymouth.

Argued May 2, 2022.
September 16, 2022.

Jeffrey Nguyen, Quincy, for the plaintiff.

Jeffrey A. De Lisi, for Mary A. Lareau & another.

Present: Budd, C.J., Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.


194 N.E.3d 170

In this case, we consider whether an undeveloped lot, which was deemed unbuildable under the local zoning bylaw in effect when the owner of the lot requested a building permit, is protected as buildable by the first sentence of G. L. c. 40A, § 6, fourth par. Resolution of this issue depends on whether the lot meets the minimum "frontage" requirement set forth in that provision. We conclude that the lot is protected under G. L. c. 40A, § 6, because it had the necessary "frontage," as that term was understood locally, in 1957, when the lot was last conveyed prior to the 1959 zoning change that first rendered it unbuildable. Accordingly, the order of the Land Court denying the plaintiff's

490 Mass. 685

motion for summary judgment, and granting that of the defendants, must be reversed.

1. Background. We summarize the findings set forth in the order on the parties’ cross motions for summary judgment, supplemented by other uncontroverted facts in the summary judgment record, Miramar Park Ass'n, Inc. v. Dennis, 480 Mass. 366, 369, 105 N.E.3d 241 (2018), and viewing "the evidence in the light most favorable to the party against whom summary judgment was entered," Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 330, 173 N.E.3d 333 (2021), here, Williams.3 See Attorney Gen. v. Bailey, 386 Mass. 367, 370-371, 436 N.E.2d 139 (1982), and cases cited.

a. Lot 62. Plaintiff Thomas F. Williams, acting individually and as trustee of the River Realty Trust, is the record owner of a 2.076-acre undeveloped parcel of land (lot 62), located in residential district A in the town of Norwell (Norwell or town). Williams4 seeks to build a single-family residence on lot 62, while the defendants, Williams's neighbors Maura A. and Gregory T. Lareau, oppose the proposed construction.

On June 11, 1948, lot 62 was sold by Esther MacKay to James Fox MacDonald, Jr. The deed was recorded at the Plymouth County registry of deeds on June 21, 1948; a plan of land depicting the lot also was recorded in the registry on that day. Lot 62 subsequently was conveyed in 1953, 1957, 1964, and in 2002, when it was sold to Williams. Since its creation, lot 62 has not been held in common ownership with any adjoining lots.

The description of lot 62 in the 1948 deed has been perpetuated in all of the subsequent deeds. The description refers to an "existing" right of way that crosses the property, and the way is shown on the 1948 plan as crossing lot 62 for well over one hundred feet. On two recorded plans from 1966 and 1967, a way identified as "Stony Brook Lane" is shown crossing lot 62 in that vicinity. These plans, which were recorded after the town established a planning board and accepted the provisions of the subdivision control law, are endorsed by the town planning board as "Approval Under the Subdivision Control Law Not Required." See G. L. c. 41, §§ 81K - 81GG. An official town map from 1972

490 Mass. 686

depicts a "private country lane" in the vicinity of the

194 N.E.3d 171

right of way referenced in the description. See G. L. c. 41, § 81E.

b. Prior proceedings. In 2009, the town's building inspector issued Williams a building permit, which had been approved by the town fire chief, for the construction of a single-family house on lot 62. Defendants William McCauley, Maura A. Lareau, Gregory T. Lareau, Richard Thornton, and Deborah Thornton appealed from the issuance of the building permit to the town zoning board of appeals (ZBA). Following a public hearing, the ZBA revoked the building permit. The ZBA concluded that the permit had been issued prematurely because the planning board had not yet made a determination that lot 62 had frontage on a "street or way" with "suitable width, suitable grades and adequate construction." Under the then-current zoning bylaw, adopted in 2009, such an adequacy determination was required before a lot could be deemed to have frontage on a "private way [that was] in existence when the provisions of [the] subdivision control law became effective in the [t]own of Norwell."

Pursuant to G. L. c. 40A, § 17,5 Williams filed a complaint in the Land Court challenging the ZBA's decision. He argued that lot 62 was protected by G. L. c. 40A, § 6,6 from application of the requirements of the current zoning bylaw, including the requirement that frontage on a private way in existence when the town adopted the subdivision control law was subject to an adequacy determination by the planning board.

In 2011, a Land Court judge conducted a trial on Williams's complaint. Among other witnesses, Williams called the town building inspector. The inspector testified that he was "familiar with Stony Brook Lane" and had granted "other building permits there"; the inspector estimated that there were approximately seven or eight houses on Stony Brook Lane. He also testified to having driven from Main Street onto Stony Brook Lane in order to reach lot 62, and to having seen other vehicles driving on

490 Mass. 687

Stony Brook Lane. Williams testified that he had been traveling the same route since the 1960s, over what is now known as Stony Brook Lane, and that there were no other routes to reach lot 62 from a public way. In addition, Williams, the ZBA, William McCauley, and the Lareaus stipulated to certain facts, including that "[a]t the time [lot 62] was created and recorded in June 1948, the Zoning Bylaw[ ] in effect in the town of Norwell [was] the 1942 Bylaw[ ], which [was] the town of Norwell's original Zoning Bylaw."

The trial judge's decision, issued in 2013, affirmed the ZBA's decision overturning the issuance of the building permit. The trial judge found that lot 62 did not qualify for protection under G. L. c. 40A, § 6, because it lacked the statutorily mandated fifty feet of frontage; the judge explained that "[t]he 1942 bylaw, which was in effect when lot 62 was created, contained neither

194 N.E.3d 172

a frontage requirement nor a definition of frontage." Therefore, the judge decided, the definition of "frontage" in the 2009 bylaw (the then-current version of the bylaw) should apply for purposes of assessing whether the lot met the minimum frontage requirement under G. L. c. 40A, § 6. As that definition required an adequacy determination of Stony Brook Lane by the planning board, the judge concluded, as had the ZBA, that lot 62 was not buildable. The judge also found, as a separate reason for affirming the revocation of the building permit, that the evidence did not establish that the right of way described in the 1948 deed, as well as in all subsequent deeds, was the way that, at the time of trial, was known as Stony Brook Lane.

Williams appealed, and in 2014 the Appeals Court issued an order vacating the 2013 judgment of the Land Court. See Williams v. Board of Appeals of Norwell, 86 Mass. App. Ct. 1111, 16 N.E.3d 524 (2014). Contrary to the Land Court judge's finding, the Appeals Court concluded that the 1942 zoning bylaw did contain a definition of "frontage" that could be applied to determine whether lot 62 met the requirements of G. L. c. 40A, § 6. The Appeals Court considered the lot width requirement of one hundred feet under the 1942 bylaw, which was to "be measured at the way line or the set back line," effectively to function as a frontage requirement, and as a definition of "frontage," given that the bylaw provided a definition of "way." In addition, the Appeals Court held that "[t]here was no evidence that ‘the existing right of way’ referred to [in the 1948 deed] was anywhere other than the traveled way that exists today," which was "now referred to as

490 Mass. 688

[Stony] Brook Lane." The Appeals Court remanded the matter to the Land Court for further proceedings consistent with the court's opinion. In a 2016 order, a Land Court judge then remanded the matter to the ZBA with instructions that the ZBA reconsider its 2009 decision in light of the Appeals Court's instructions. Following a second public hearing, the ZBA granted Williams's application for a building permit.

The 2016 ZBA decision relied upon a newly discovered document located by a member of the ZBA, who recalled, during the hearing on remand, that the town's original bylaw had been subject to litigation. According to the ZBA, the new document, which consisted of a 1947 Land Court decision that purported to invalidate the 1942 zoning bylaw, demonstrated that no zoning bylaw was in effect when lot 62 was created in 1948. See Lincoln vs. Inhabitants of Norwell, Mass. Land Court, No. 9746 Misc. (Jan. 16, 1947). For reasons that it did not explain, the ZBA then applied the definition of "frontage" in...

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