Opinion
14-P-946
10-15-2015
JAY W. LINGERMAN & another v. 6 MILL ROAD, LLC, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Jay and Janet Lingerman, the plaintiffs, appeal from a Land Court judgment upholding a decision of the zoning board of appeals of the town of Ipswich (zoning board) permitting the reconfiguration of the abutting property of the Gosselins.
For convenience we will refer to the defendant property owner, 6 Mill Road, LLC (the LLC), as the Gosselins. Raymond Gosselin is the manager and coowner of the LLC, which was formed when he and Linda Gosselin, the other coowner of the LLC, conveyed the subject property to the LLC in February, 2012.
Background. In 2009, Raymond and Linda Gosselin purchased a twelve-plus-acre property at 6 Mill Road in Ipswich. On the property at that time were a single-family house, a barn with seven horse stalls, and an indoor riding facility. In 2010 the planning board of the town of Ipswich (planning board) granted the Gosselins site plan approval to operate a commercial horse farm on the property, to construct a ten-stall addition to the barn, and to enlarge and relocate an addition to an existing indoor riding area. After site plan approval, the Gosselins obtained a building permit. The Lingermans, who own abutting property at 8 Mill Road, appealed the issuance of that permit to the zoning board. In November, 2010, the zoning board overturned the building permit on the ground that the property lacked frontage and was in violation of a 1973 variance limiting the property to a single-family use.
In May, 2011, Roger LeBlanc, owner of abutting property at 14 Mill Road, obtained planning board approval to subdivide his two-plus-acre property into two one-plus-acre lots and to create a new subdivision road called Rogers Way. In February of 2012, the Gosselins purchased from LeBlanc one of the lots (lot B), which had frontage on Rogers Way, and combined it with their 6 Mill Road property intending to cure their frontage problem.
In March, 2012, the Lingermans requested an enforcement action from the building inspector to prohibit the combination of lot B with 6 Mill Road, asserting that the combination was in violation of sections of the zoning by-law entitled "Inclusionary Housing Requirements." When the building inspector denied their request, the Lingermans appealed to the zoning board, and, in June of 2012, also appealed from the building inspector's subsequent issuance of a temporary use and occupancy permit to the Gosselins.
In a decision on August 30, 2012, the zoning board denied the Lingermans' requests to overturn the building inspector's decisions. The zoning board found, inter alia, that the subdivision by LeBlanc was exempt from the inclusionary housing requirements in the zoning by-law and that there is no prohibition against combining lot B and 6 Mill Road. The Lingermans appealed the zoning board's decision to the Land Court, where a judge allowed summary judgment for the Gosselins and denied the Lingermans' cross motion. This appeal followed.
Meanwhile, in 2011 the Gosselins had applied to the planning board for a special permit to add a barn manager's apartment to the existing barn on their property. That permit eventually was granted in October of 2012. The Lingermans challenged the special permit in a Land Court action separate from the present case (though decided by the same judge). Our decision in case no. 14-P-945, the Lingermans' appeal from the judgment upholding the special permit, is also released today.
Analysis. The Lingermans contend that the zoning board erroneously concluded that the parcel of land the Gosselins obtained from LeBlanc's subdivision was not subject to the inclusionary housing requirements in § IX.I.2.b. of the zoning by-law and assert that the lot purchased by the Gosselins could not be used other than for development of single-family housing. They ask that the summary judgment of the Land Court be reversed.
We review the judge's summary judgment decision de novo. Richardson v. Board of Appeals of Chilmark, 81 Mass. App. Ct. 912, 912 (2012). "Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law." Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-644 (2002). "We may consider any ground supporting the judgment." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
The plaintiffs assert that the zoning by-law "only allows a two acre lot to be divided in connection with a development that creates a single-family dwelling," and that the divided lot cannot be used for another purpose. As the judge determined, however, the zoning board dismissed that assertion, citing language in § IX.I.2.b. as well as in a footnote to the "Table of Dimensional and Density Regulations" in the zoning by-law, both of which provide an exemption from the inclusionary housing requirements where, as here, land is divided creating only one additional lot and resulting in two lots, each of at least one acre in area. The exemption as it appears in § IX.I.2.b. and in the footnote is quoted in the margin., The judge noted that the zoning board specifically found that the LeBlanc subdivision was exempt from the inclusionary housing requirements.
Section IX.I.2.b. of the zoning by-law states in relevant part:
"Developments that create only one single-family detached or attached dwelling are exempt from the provisions of subsection I . . . provided that a suitable restriction is recorded at the Essex South Registry of Deeds prohibiting the creation of additional units on the property."
Footnote 26 to the table of dimensional and density regulations for the minimum lot area for single-family use states in relevant part:
"This requirement [one acre] shall apply to: . . . (b) all developments that fulfill the requirements of Section IX.I. (Inclusionary Housing Requirements) or are expressly exempted from said Section IX.I requirements because they create only one single-family detached or attached dwelling, provided that a suitable restriction is recorded at the Essex South Registry of Deeds prohibiting the creation of additional units on the lot(s)."
Moreover, the by-law speaks of "proposed residential development," and a purpose of increasing the supply of housing affordable by low- and moderate-income households. There is no indication that either LeBlanc or the Gosselins were engaged in such development or acted in any manner that would bring them within the by-law requirements for such development.
In an affidavit the Ipswich planning director stated that,
"[I]t was always the 'intent' of the bylaw, as passed in its present form, to allow an owner to avoid the Inclusionary Housing Requirements if the owner complied with the language of the bylaw by creating only a single new lot, in addition to the lot that previously existed. . . . [I]t was always the intent of the bylaw that both Footnote 26 and Section IX.I b(2) [sic] would allow a landowner with at least two acres to subdivide the property into two lots, each at least one acre in size, and upon which new lot one additional residential dwelling unit could be developed, and be exempt from the Inclusionary Housing Requirements."The planning director also stated that he was familiar with at least ten other developments that benefited from these exemptions, and "in each instance the building inspector's office determined that the division of a two acre lot into two separate one acre lots was not subject to the Inclusionary Housing requirements."
We note that the zoning board made several other findings of significance concerning the combined property. First, it "accepted" the planning board's LeBlanc subdivision approval determinations "as to the adequacy of frontage on Rogers Way, and that the combined lot had sufficient frontage." Second, the zoning board "made an independent finding that both the 'Lot B' lot of the LeBlanc Subdivision and the combined lot, . . . have adequate frontage along Rogers Way, and is [sic] otherwise in compliance with the zoning requirements of such combined lot." Third, the zoning board also found that "the conditions of [the] 1973 variance . . . are no longer controlling as to the property, as the purchase of the subject Lot B, has now provided the owners adequate frontage."
Finally, we observe the judge gave proper deference to the zoning board's interpretation of the by-law and to its legal conclusions within its authority. See Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009), and cases cited.
We conclude summary judgment properly was ordered for the defendants.
We have not overlooked other arguments made by both parties, but conclude they do not require discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
By the Court (Cypher, Meade & Massing, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 15, 2015.