Opinion
21-P-6
12-10-2021
3333 INC. v. TOWN OF WESTMINSTER & another.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, 3333 Inc., commenced this action after the zoning board of appeals for the town of Westminster (board) upheld a decision by the building inspector denying 3333 Inc.'s application for a building permit to construct a single-family dwelling on property located at 13 Laurie Lane. On 3333 Inc.'s motion for summary judgment, a judge of the Superior Court ordered that the board was entitled to judgment as a matter of law dismissing the complaint. We affirm.
Background.
The material facts are not in dispute. The property at issue is known as lot 56 or the "beach area lot," and it is part of a subdivision that was approved in 1967. Lot 56 has not been in conformity with the town's zoning requirements at least since 1978 when the town amended the dimensional requirements for land area in the district where the subdivision is located. In 1979, lot 56 was conveyed into common ownership with an adjacent lot, known as lot 57. These two lots remained in common ownership until 1991. 3333 Inc. acquired the property in 2010 and subsequently applied for a building permit. In 2011, a different building inspector than the one who denied 3333 Inc.'s current application, determined that a building permit could be issued pursuant to G. L. c. 40A, § 6, because the lot met the zoning requirements in existence between 1967 and 1978 for a single-family residence. That decision was upheld by the board and then challenged by an abutter pursuant to G. L. c. 40A, § 17. After a bench trial, a judge of the Superior Court dismissed the abutter's complaint for lack of standing. However, because he anticipated an appeal on the issue of standing, the judge also addressed the merits of the abutter's claim. He concluded that because lot 56 had merged with lot 57 when the two came into common ownership in 1979, a year after the zoning bylaw was amended, lot 56 did not benefit from any preexisting nonconforming protections under G. L. c. 4 0A, § 6.
The owners of lots 56 and 57 sold lot 57 in 1991, and then sold lot 56 in 2001.
Both parties, the abutter and 3333 Inc., appealed the Superior Court judgment. In an unpublished memorandum of decision and order issued pursuant to rule 1:28 (now rule 23.0), a panel of this court held that the abutter had standing and that because lots 56 and 57 had merged, lot 56 had been rendered unbuildable. See Picard v. Zoning Bd. of Appeals of Westminster, 87 Mass.App.Ct. 1125 (2015). After further review, the Supreme Judicial Court affirmed the Superior Court judgment dismissing the abutter's complaint for lack of standing, but the court declined to address the issue whether lot 56 was entitled to exemption from the provisions in the zoning bylaws under G. L. c. 40A, § 6, based on lot's 56 former status as a preexisting nonconforming lot. See Picard v. Zoning Bd. of Appeals of Westminster, 474 Mass. 570, 571 (2016).
Specifically, in Picard, the panel stated:
"The beach area lot did not conform to the town's zoning requirements when it was separately conveyed in 2001, and it did not conform in 2010 when 3333, Inc. took title. '[A] new nonconformity is not entitled to grandfather protection under [G. L. c. 40A],' . . . and the zoning ordinance provides that once 'any nonconforming use of any . . . land ... is changed to a conforming use, it shall not thereafter be put into any nonconforming use.' Thus, the judge correctly concluded that the beach area lot is not grandfathered either under G. L. c. 40A, § 6, or under the town's zoning ordinance" (citation omitted).We note that the order in Picard, supra, was issued prior to our decision in Comstock v. Zoning Board of Appeals of Gloucester, 98 Mass.App.Ct. 168, 172 n.ll (2020), wherein we indicated our disfavor of the term "grandfathered."
With respect to 3333 Inc.'s current application for a building permit, the building inspector essentially adopted the reasoning of the Superior Court and the panel of the Appeals Court and denied the application on the ground that the property was previously held in common ownership for zoning purposes, and, therefore, was not entitled to protection as a preexisting nonconforming lot under G. L. c. 4 0A, § 6.
3333 Inc. appealed to the board and argued that despite a period of common ownership, the doctrine of merger did not apply because the property is encumbered by an easement, which is described in the deeds of thirty-two homes in the neighborhood. The easement grants those owners "the right to use in common with others a certain area located on Laurie Lane and designated as Beach Area [lot 56] on Plan above referred to." The board did not address this argument directly. Rather, the board denied 3333 Inc.'s appeal on the ground specified by the building inspector, i.e., because lot 56 was held in common ownership after the zoning bylaws were amended in 1978, the lot was not entitled to protection as a preexisting nonconforming lot. In reaching its conclusion, the board, like the building inspector, "accept[ed] and adopt[ed]" the reasoning of the decisions of the Superior Court and the panel of the Appeals Court.
As previously noted, 3333 Inc. sought review in the Superior Court and then filed a motion for summary judgment in which it claimed, as it did before the board, that its property is entitled to protection as a nonconforming lot because the property is burdened by an easement that precluded merger with the adjacent lot for zoning purposes.
In his memorandum of decision and order dismissing 3333 Inc.'s complaint, the judge relied on the law of the case doctrine and concluded that the issue of protective status had already been decided. Under the law of the case doctrine, an already decided issue should not be reopened "unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice" (citation omitted). King v. Driscoll, 424 Mass. 1, 8 (1996). See Vittands v. Sudduth, 49 Mass.App.Ct. 401, 413 n.19 (2000) (the law of the case doctrine reflects "the reluctance of a second judge to rule differently from the first judge on a case, issue, or question of fact or law once decided by final judgement or on appeal"). The judge reasoned that:
"Here, the beach area lot's grandfathered status was fully briefed and litigated resulting in a final judgment in this court that was affirmed on appeal. Accordingly, the determination that the beach area lot is not grandfathered under the Zoning Act or the Town's by-law became the law of
the case. There is no reason for this court to find that the decision was 'clearly erroneous and would work a manifest injustice.'"
Although the judge concluded that the board was entitled to summary judgment based on the law of the case, he also addressed and rejected 3333 Inc.'s argument that lot 56 could not be held in common ownership with any adjacent lot due to the existence of the easement that burdens lot 56.
Discussion.
"We review a grant of summary judgment de novo." Deutsche Bank Nat'1 Trust Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 252-253 (2015). "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Molina v. State Garden, Inc., 88 Mass.App.Ct. 173, 177 (2015), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "In deciding a motion for summary judgment[, ] the court may consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits." Niles v. Huntington Controls, Inc., 92 Mass.App.Ct. 15, 18 (2017) .
3333 Inc. argues that the judge erred by relying on the law of the case doctrine because the Supreme Judicial Court only addressed the issue of standing and did not address the question whether 3333 Inc. was entitled to a building permit for lot 56. It also continues to press its argument that merger of lots 56 and 57 was precluded by the existence of the easement. To support this argument, 3333 Inc. points to a recent decision of the Land Court, Warden vs. Zoning Board of Appeals of Bourne, Mass. Land Ct., No. 18 MISC 000113 (June 13, 2019), in which the Land Court found that two lots were not adjacent for purposes of the Zoning Act and could not be merged because they were separated by a paper street subject to the rights of others to pass and repass over the way.
We need not decide whether the law of the case doctrine applies here because based on our de novo review of the record, we conclude first that the lots in question were merged by virtue of their common ownership and, as a result, lot 56 has no protection under G. L. c. 40A, § 6; and second, the presence of the easement, or the fact that lots 56 and 57 maintained their "separate identities," as 3333 Inc. argues, does not preclude a merger for zoning purposes.
With respect to our first conclusion, no discussion is necessary. It suffices to say that we rely on the reasoning set forth in Picard, 87 Mass.App.Ct. 1125. As to our second conclusion, we are not persuaded that the decision in Warden is applicable. In that case, the court found that adjacent lots were not merged because a private way was a significant physical barrier that sufficiently interrupted the use of the property as one. Put differently, the rights of the subdivision owners to use the paper way sufficiently interrupted the combined use of the adjacent lots as a unified, merged lot. Unlike the situation in Warden, the general easement right at issue here, namely "the right to use in common with others" does not present the sort of physical impediment that would prevent the use of adjacent lots as a single undivided unit for merger purposes. Here, as the judge noted, the owners of all thirty-two homes could still use Lot 56 to "access the pond regardless whether the two lots are treated as one merged lot."
Order entered September 24, 2020, affirmed.
The panelists are listed in order of seniority.