Opinion
14-P-201
11-26-2014
KEVIN J. JONES, JR. v. ZONING BOARD OF APPEALS OF BROCKTON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment of the Land Court dismissing his appeal, under G. L. c. 40A, § 17, and affirming the decision of the defendant zoning board of appeals (board) of Brockton (city) upholding the denial by the city's building inspector of a building permit to construct a residence on property the plaintiff owns on Carrlyn Road in Brockton. We affirm the judgment.
We need not address the plaintiff's contention that the judge erred in concluding that the complaint was barred by principles of res judicata, because the record does not support his claim that the property on which he proposes to build is entitled to "grandfather" protection under the city's zoning ordinance (ordinance). As a threshold matter, we observe that the record does not include any portion of the ordinance defining a "lot" for purposes of construing any other section of the ordinance regulating or protecting lots. More significantly, and fatal to the plaintiff's claim of entitlement to protection, is the absence of any evidence in the record establishing that the "lot" on which he proposes to build (which contains 5,000 square feet) satisfied the minimum lot size requirements in the relevant district at any time in the past, and was rendered nonconforming by a particular amendment to the ordinance. Wholly independent of the merger of lots held in common ownership, when necessary to conform to current lot size requirements (or to reduce the extent of any nonconformity), an essential prerequisite of any claim of grandfathering is the prior status of a lot as conforming to then-existing zoning requirements, but rendered nonconforming by an increase in lot size requirements. See G. L. c. 40A, § 6. See also Adamowicz v. Ipswich, 395 Mass. 757, 764 (1985).
We take judicial notice of the finding contained in the decision in the previous Land Court action concerning this property, to the effect that current zoning where the property is located requires a minimum lot size of 30,000 square feet. The record includes a copy of a provision, apparently enacted in 1962 and amending § 11A of c. 26 of the 1949 ordinance, that refers to a minimum lot size of 10,000 square feet for new subdivisions. That does not, however, describe what the minimum lot size was in 1949, in 1962 or, for that matter, at any other time.
Judgment affirmed.
By the Court (Green, Wolohojian & Blake, JJ.),
Panel members appear in order of seniority.
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Clerk Entered: November 26, 2014.