Opinion
No. 11–P–1360.
2012-07-3
Linda E. LEDDY, trustee v. BOARD OF APPEAL OF WINCHESTER.
By the Court (COHEN, FECTEAU, & BROWN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, trustee of the Manomet Center Taft Drive Gift Nominee Trust, appeals from a judgment of the Land Court affirming a decision of the board of appeal of the town of Winchester (board) that a parcel of land conveyed to the trust is not a buildable lot. We affirm.
Background. The facts are not in dispute. The locus, 35 Taft Drive, is a 20,180 square foot lot, created in 1959 pursuant to a subdivision plan. The locus has 99.59 feet of frontage on Taft Drive, and, at the time of its creation, the locus met the existing dimensional requirements for a buildable lot. The rear portion of the locus adjoins the lot at 4 Overlook Way (adjoining lot). The adjoining lot was created in 1941, and consists of 15,017 square feet, with 125.85 feet of frontage on Overlook Way. When created, the adjoining lot was in conformance with existing dimensional requirements for a buildable lot; however, in 1957, amendments to the by-law increased the minimum lot size requirement, and the adjoining lot became a nonconforming grandfathered lot.
The locus and the adjoining lot came under common ownership as a result of conveyances in 1961. Subsequent amendments to the by-law in 1972 and 1973 increased the frontage requirement for buildable lots to 100 feet and eliminated the exemption language for pre–1957 subdivision lots. As a result, the locus became nonconforming as to frontage, and the adjoining lot became nonconforming as to area. In 1999, the common owner conveyed the adjoining lot to a third party, and, in 2000, conveyed the locus to the plaintiff.
On February 27, 2009, the plaintiff sought a determination from the zoning enforcement officer that the locus was a lawful buildable lot. The officer determined that it was not a buildable lot because it did not meet the frontage requirement. The plaintiff appealed the decision to the board, which upheld the officer's decision on the ground that the locus had merged with the adjoining lot and, as a result, lost the right to grandfather protection. On the plaintiff's further appeal to the Land Court, the parties filed cross-motions for summary judgment. The judge ruled in favor of the board, denying the plaintiff's motion and allowing that of the defendants.
Discussion. At issue is the interpretation and application of §§ 3.21 and 3.22 of the Winchester zoning by-law. Mindful of the principle that deference is owed to the interpretation and application of a zoning by-law by the board charged with its enforcement, see Wendy's Old Fashioned Hamburgers of New York, Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 382–383 (2009), we consider each section in turn.
1. Section 3.21. Section 3.21 mirrors the statutory codification of the merger doctrine expressed in G.L. c. 40A, § 6. See Planning Bd. of Norwell v. Serena, 27 Mass.App.Ct. 689, 690 (1989).
Both the board and the judge concluded, and we agree, that the locus does not meet the § 3.21 requirement that it “is now and was at the time of the [zoning change at issue] held in a single ownership and not in common ownership with any adjoining land.” To the contrary, the locus and the adjoining lot were held in common ownership when zoning amendments increased the relevant frontage requirements to 100 feet. Hence, by operation of the merger doctrine, the current locus, which has but 99.59 feet of frontage, is nonconforming.
Section 3.21 provides, in relevant part, that “[a]ny unimproved parcel of land shown or described as a separate lot ... which, if built upon or used for single-family or two-family use would fail to meet any frontage, lot area, lot width or front, side or rear yard requirement by reason of the subsequent adoption of any amendment to this [b]y-law, may be built upon for single-family or two-family use, provided ... [s]uch parcel of land is now and was at the time of the adoption of such amendment held in single ownership and not in common ownership with any adjoining land.”
2. Section 3.22. The plaintiff argues that § 3.22 entitles the locus to more generous grandfather treatment than is available under G.L. c. 40A, § 6, or under § 3.21.
We disagree. Section 3.22 is inapplicable in this case, where the locus and adjoining lot lack continuous frontage on a roadway and share only a rear property line.
Section 3.22 provides that “[i]f two or more lots or combinations of lots and portions of lots, in single ownership, with continuos [sic] frontage on a street, road or way do not meet the requirements for lot width, street frontage or lot area as established by this [b]y-law, the land involved shall be considered to be an undivided parcel for purposes of this By-law. No portion of said parcel shall be used for the erection of a structure nor shall it be separately sold, mortgaged or otherwise transferred or conveyed unless it shall meet lot width, street frontage and lot area requirements established by this [by]-law. No division of any such parcel shall be made which leaves remaining any lot with width, street frontage or lot area below the requirements stated in this [b]y-law except that such lots may be used or may be separately sold, mortgaged or otherwise transferred or conveyed if each lot is occupied by a structure designed primarily for a use which is permitted as a principal use in the district.”
Contrary to the plaintiff's position, §§ 3.21 and 3.22 coexist harmoniously. The judge correctly reasoned that § 3.21 is the primary vehicle for incorporating the merger doctrine into the by-law, and it requires that the locus comply with current frontage requirements, while § 3.22 addresses more stringently the specific situation where nonconforming lots in common ownership with adjoining land have continuous frontage. Nothing in § 3.22 suggests that a more generous grandfather provision was intended for lots that do not share continuous frontage, or that § 3.22 was designed to limit the scope and operation of § 3.21.
Given our determination that § 3.22 does not apply to the lots in question, we need not reach the plaintiff's arguments concerning the effect of the 2009 recodification of the by-law, which eliminated that section.
Conclusion. For the foregoing reasons, the judgment is affirmed.
So ordered.