Opinion
11-P-88
01-09-2012
RICHARD C. NELSON v. ZONING BOARD OF APPEALS OF STOW & others.
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 Land Court judge's decision allowing summary judgment in favor of the zoning board of appeals of Stow (board). We affirm.
Background. The plaintiff owns a parcel of land in Stow (lot 1A). He acquired title to lot 1A in 2007. Lot 1A was created in 1967 when a portion of land that included lot 1A was transferred, leaving lot 1A as a stand-alone parcel. The plaintiff argues that lot 1A is a buildable lot because it contains more than 40,000 square feet, which was the minimum lot size required in 1967. The plaintiff's lot size calculation is reached by including the land under Sudbury Road, which is adjacent to the lot. Without including the land under Sudbury Road, lot 1A is significantly smaller than the 40,000 square foot minimum lot size required in 1967.
The zoning by-laws were amended in 1969 to include larger minimum lot requirements.
Discussion. We review a grant of summary judgment de novo, Miller v. Cotter, 448 Mass. 671, 676 (2007), and look to the record to determine '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.' Augat, Inc. v. Liberty Mutual Ins. Co., 410 Mass. 117, 120 (1991).
Under G. L. c. 40A, § 6, fourth par., inserted by St. 1975, c. 808, § 3, '[a]ny increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot . . . which at the time of recording . . . conformed to the then existing requirements.' In determining whether a lot is entitled to grandfather status under G. L. c. 40A, § 6, 'the status of the lot immediately prior to the zoning change is controlling.' Adamowicz v. Ipswich, 395 Mass. 757, 762 (1985).
A buildable lot under the Stow's 1967 zoning by-laws required '150 feet street frontage.' In 1969, the zoning by-laws were amended and 'lot' was specifically defined to exclude 'any part of a street.' While the plaintiff argues that the absence of such language in the 1967 zoning by-laws suggests that Sudbury Road could be included in calculating lot size at that time, he offered no evidence to support this contention. See Hall v. Zoning Bd. of Appeals of Edgartown, 28 Mass. App. Ct. 249, 257 (1990) ('[t]he plaintiff[] ha[s] the burden of showing that [he is] entitled to the protection of the statute'). We agree with the Land Court judge's analysis that there is nothing in the record to suggest that Stow has ever permitted the inclusion of land beneath a public way in the calculation of minimum lot requirements, and to do so would be inconsistent with the purpose of zoning.
The Land Court judge correctly noted that allowing the plaintiff to include Sudbury Road in his calculation of lot 1A's size would leave the plaintiff with frontage on an adjoining lot; not on a public way. While 'street frontage,' as appearing in the 1967 zoning by-laws, is not defined, it obviously refers to frontage on a public way rather than an adjoining plot of land. See id. at 254 ('Terms used in a zoning by-law should be interpreted in the context of the by-law as a whole and, to the extent consistent with common sense and practicality, they should be given their ordinary meaning '). Accordingly, the plaintiff's calculation of the size of lot 1A is legally defective and he is not entitled to protection under G. L. c. 40A, § 6.
Judgment affirmed.
By the Court (Kantrowitz, Fecteau & Carhart, JJ.),