Opinion
No. 15–P–912.
07-25-2016
Susan C. GALLAGHER v. ZONING BOARD OF APPEALS OF FALMOUTH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a summary judgment of the Land Court which affirmed a determination by the zoning board of appeals of Falmouth (ZBA) that two adjacent lots of land, maintained separately by the plaintiff and her husband, had merged for zoning purposes. The plaintiff continues to challenge the merger determination. We affirm.
Background. The judge developed the factual record in this case with care, separating out the material facts not in dispute from all of the materials submitted to him. The two lots in issue (collectively, locus) first appeared in an April 28, 1986, subdivision plan, approved by the Falmouth planning board on July 1, 1986 (subdivision plan). On October 1, 1986, a plan dated April 28, 1986, was filed in connection with Land Court Registration Case No. 314 (Land Court plan). The two lots were identified in the Land Court plan as lots 500 and 499 and became known as the “house lot” and the “carport lot,” respectively, so named for structures later placed on those lots. By deed dated November 16, 1990, the house lot was conveyed to the plaintiff by the trustee of the Wexford Realty Trust. On August 27, 1993, Michael Everett, the plaintiff's now-deceased husband, purchased the carport lot from the Wexford Realty Trust.
Minor differences in lot dimensions and areas appear between the subdivision plan and the Land Court plan, which have no significance in this appeal, particularly because the judge and the parties refer only to the Land Court plan.
The judge found that on April 24, 2000, the plaintiff, “or someone purporting to represent her,” applied to the Falmouth planning board for an “approval not required under subdivision control” (ANR) endorsement to combine lots 500 and 499. The locus was shown as one parcel of 51,430 square feet with a dashed line representing the boundary line between the house lot and the carport lot. Endorsement was granted on May 2, 2000, but the plan never was recorded. Up to that time the house lot and the carport lot remained in separate ownership by the plaintiff and Everett, respectively.
The judge noted that the plaintiff claimed she had no involvement in the creation of the ANR plan and that the application for endorsement did not appear to have been signed by her or Everett; only the preparer of the plan signed it.
Everett conveyed the carport lot to the plaintiff by deed dated December 29, 2000, apparently, as the judge found, “for estate planning reasons after Everett was diagnosed with serious health problems.”
On January 22, 2013, the plaintiff requested a zoning determination from the Falmouth building commissioner (commissioner) that the carport lot was a separate buildable lot, exempt from the increased area requirements of a 1993 zoning amendment, citing footnote 7 of § 240–67 of the zoning by-law. The commissioner replied, opining that the lots had merged. The plaintiff then appealed to the ZBA.
The town of Falmouth enacted its zoning by-law on April 2, 1979. Both the house lot and the carport lot are in the single residence zoning district. In April of 1993, § 240–67 of the by-law was amended to increase the minimum lot area in that district from 20,000 square feet to 40,000 square feet. Because the house lot contained 27,945 square feet, and the carport lot contained 23,485 square feet, both lots accordingly became nonconforming.
The ZBA upheld the decision of the commissioner and the plaintiff appealed that decision to the Land Court. The judge ruled that when the two lots came into the plaintiff's common ownership, they lost “grandfather” protection under G.L. c. 40A, § 6, and footnote 7 of § 240–67 of the zoning by-law, and thereby merged for zoning purposes.
By two separate deeds dated May 12, 2014, the plaintiff conveyed the carport lot and the house lot to herself as trustee of the Susan C. Gallagher Trust.
Discussion. 1. Standard of review. Two standards are applicable in this case. The familiar standard of summary judgment is applicable where there are no genuine issues of material fact and the record entitles the moving party to judgment as matter of law, see Community Natl. Bank v. Dawes, 369 Mass. 550, 553 (1976), and we “must affirm the [ZBA's] decision unless it ... was ‘based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary,’ “ Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 72 (2003), quoting from MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 639 (1970).
2. Merger of the nonconforming lots. The sole issue is the plaintiff's challenge to the judge's ruling that the ZBA determined that the lots merged. The plaintiff asserts that decision was erroneous and the carport lot is eligible to remain separate under the grandfather protection of G.L. c. 40A, § 6, and footnote 7 of § 240–67 of the zoning by-law.
The general rule that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes has long and consistently been applied. See Vetter v. Zoning Bd. of Appeal of Attleboro, 330 Mass. 628, 630–631 (1953) ; Preston v. Board of Appeals of Hull, 51 Mass.App.Ct. 236, 238 (2001), and cases cited. Although the plaintiff and Everett separately owned the house lot and the carport lot, respectively, when those lots came into the plaintiff's common ownership, they merged and thereafter would be treated as a single lot. See Hoffman v. Board of Zoning Appeal of Cambridge, 74 Mass.App.Ct. 804, 811 (2009).
The grandfather provision in c. 40A, § 6, “provid[es] protection from increases in lot area and frontage requirements only to nonconforming lots that are not held in common ownership with any adjoining land.” Carabetta v. Board of Appeals of Truro, 73 Mass.App.Ct. 266, 269 (2008). That protection applied to the carport lot at the time it was owned separately by Everett, but the protection was lost when it became held in common with adjoining land, i.e., when that lot merged with the house lot. The grandfather exception applies only to those lots that have not merged. See Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 131–132 (1972) ; Hoffman, supra at 812.
General Laws c. 40A, § 6, inserted by St.1975, c. 808, § 3, states: “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.”
Next, the plaintiff claims that footnote 7 of § 240–67 of the zoning by-law is an “indulgent” by-law that abrogates the common-law merger doctrine. The plaintiff cites no authority in support of abrogation of the common-law merger doctrine.
Footnote 7 of § 240–67 states:
“Corrected Single Residence B and Single Residence C shall not apply to any lot shown on a plan endorsed by the Planning Board prior to April 1, 1993, or to any lot shown on a plan submitted for approval to the Planning Board prior to April 1, 1993, and subsequently endorsed after that date.”
A municipality may adopt zoning provisions “intended to avoid the application of the general principle that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes,” Seltzer v. Board of Appeals of Orleans, 24 Mass.App.Ct. 521, 522 (1987), or it may adopt a “more liberal grandfather provision, [but] it must do so with clear language,” Carabetta, supra. See Marinelli v. Board of Appeals of Stoughton, 65 Mass.App.Ct. 902, 903 (2005). The plaintiff has not pointed to any such language in footnote 7 or elsewhere.
The judge stated that footnote 7, unlike G.L. c. 40A, § 6, neither mentions common ownership nor indicates how lots that come into common ownership should be treated, and stated that while footnote 7 “clearly protects independent lots that do not meet new zoning requirements, it does not specifically provide that lots that come under common ownership should be exempt from the common law doctrine of merger.” Accordingly, he properly concluded that footnote 7 is not an indulgent by-law provision and the common-law doctrine of merger remains controlling in this case.
Judgment affirmed.