Opinion
10-P-1602
11-21-2011
KEVIN JONES 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 Land Court judgment upholding the decision of the zoning board of appeals of Brockton (board) that he was not entitled to receive a building permit. We affirm.
Background. The plaintiff owns approximately one-third of an acre of land at 15 Carrlyn Road, Brockton (parcel). Before it was first developed, the parcel appeared on a 1948 subdivision plan (Nye Plan), where it was denominated as three separate lots of 5,000 square feet each (lots 39, 40, and 41). A single-family home was constructed on the parcel in 1955, straddling former lots 40 and 41. The portion of the parcel shown as lot 39 on the Nye Plan has never been developed, and since 1955 has been used as the side yard for the house at 15 Carrlyn Road.
The first transfer of the parcel that appears in the record occurred in 1955. The deed recording that transfer referenced the three lots on the Nye Plan, but did not describe each lot separately. Instead, it described the land being conveyed as a single parcel with a single set of metes and bounds. Every subsequent deed, including the plaintiff's, contains the same description.
Since that first transfer, the entire parcel has always been held in common ownership. It has been used, and conveyed on multiple occasions, as a single lot. The city of Brockton (city) has assessed and taxed it as a single lot for all that time. When the plaintiff decided to buy the parcel in 2005, it had been listed by its previous owner as a single lot of .34 acres, with 150 feet of street frontage and improved with a single-family dwelling.
In 2008, the city's superintendent of buildings denied the plaintiff's request for a permit to build a single-family home on the portion of the parcel depicted as lot 39 on the Nye Plan. After the denial was upheld by the board, the plaintiff filed a complaint in Land Court pursuant to G. L. c. 40A, § 17. The judge granted the board's motion for summary judgment.
Discussion. Although the plaintiff concedes that lot 39 does not meet the city's current minimum frontage and area requirements for a single-family dwelling, he contends that he is entitled to a permit pursuant to § 27-12 of the city's zoning ordinance, a 'grandfather clause' that allows a single-family unit to be built on any 'existing lot of record' in a residential zone without regard to area or frontage (subject to certain requirements not here at issue). The determinative question in this case is thus whether lot 39 is an 'existing lot of record.' We agree with the judge's thoughtful conclusion that it is not.
Because we conclude that former lot 39 does not qualify as an 'existing lot of record' under § 27-12, we do not address the board's alternate argument that denial of the permit was proper on the ground that lot 39 is not a 'nonconforming lot.'
The city's zoning ordinance does not contain a definition of the term 'existing lot of record,' but it does define a 'lot' as a 'parcel of land identical in ownership throughout, bounded by other lots or by streets, which is designated by its owner to be used, developed or built upon as a unit.' § 27-61. The most natural place to look in deciding whether a given lot was an 'existing lot of record' at a given time is to the most recent recorded instrument at that time describing that lot. All of the recorded deeds in the plaintiff's chain of title describe the land being conveyed as a single parcel, bounded by a single set of metes and bounds. The description in the deeds of a single unified parcel of land is sufficient to 'designate' the land thus described as a single 'lot of record' for the purposes of § 27-12. The mere reference in the deeds to the three original lots from the Nye Plan as one element of the overall legal description of the parcel 'is insufficient to give rise to a presumption of an intention to preserve the lots designated therein.' Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 131 (1972). See Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 658, 661 (1965) (where three lots were conveyed by a single deed to owner who never owned any adjacent lots, circumstances 'sufficiently establish the three lots together as a single lot'); Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286, 289-290 (1979) (holding that contiguous parcels described separately for conveyancing purposes constituted single lot for zoning purposes). See generally Bobrowski, Massachusetts Land Use and Planning Law § 5.03[A], at 164-165 (3d ed. 2011).
In support of his argument that lot 39 falls within the protection of the grandfather clause, the plaintiff points to the case of Battcock v. Rye, 116 N.H. 167, 169 (1976), in which the Supreme Court of New Hampshire determined that the phrase 'lot of record' in a similar grandfather clause referred to all lots designated on recorded subdivision plans at the time the zoning ordinance took effect. Unlike the provision at issue in Battcock, however, § 27-12 makes no mention of subdivision plans. The words 'of record' do require reference to some document recorded with the appropriate registry of deeds, but there is no reason that document need be a subdivision plan rather than a deed. See Adamowicz v. Ipswich, 395 Mass. 757, 761 (1985).
Because the 1955 deed sufficed to render the entire parcel a single 'lot of record' by the time the grandfathering provision was enacted, we need not reach the board's suggestion that even if a parcel was an 'existing lot of record' when the provision was enacted, it might cease to 'exist' at a subsequent time.
We also need not decide whether separate lots described in such a fashion in a recorded deed might nevertheless retain their individual character under § 2712 if the owner's behavior clearly evinced such intention. See Seltzer v. Board of Appeal of Orleans, 24 Mass. App. Ct. 521, 523524 (1987). This is not such a case.
In sum, because lot 39 from the Nye Plan is not an 'existing lot of record' under § 27-12, the plaintiff is not entitled to an exception from the city's residential zoning requirements.
Our decision is consistent with Correia v. Zoning Bd. of Appeals of Brockton, 12 LCR 32 (Land Ct. No. 272649 Feb. 6, 2004), S. C., 63 Mass. App. Ct. 1118 (2005). Unlike in this case, the plaintiffs in Correia 'never combined the two lots on a recorded plan or in a deed.' Id. at 34. The lots 'ha[d] been shown on recorded plans as separate lots for more than 100 years,' including plans and official assessors' maps recorded after the two lots came into common ownership. Ibid. Finally, the most recent deed in which both lots were conveyed together 'refer[red] to the Property and Locus as two separate parcels of land' with separate metes and bounds. Ibid. The circumstances of Correia thus stand in sharp contrast to those present here.
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Judgment affirmed.
By the Court (Mills, Katzmann, & Milkey, JJ.),