Opinion
No. 13–P–1190.
10-07-2014
Ruth G. MOHR, v. J. Frank STROH & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Ruth G. Mohr, appeals from a judgment of the Land Court affirming a decision of the zoning board of appeals of Brewster (board) granting a building permit to defendant J. Frank Stroh for lot 49 in the town of Brewster (town). She argues that the judge misinterpreted § 179–26(A) of the town's zoning by-law by allowing grandfather protection for lot 49. She also contends that the judge erred in finding that Frank D. Lawrence Road provides adequate access to lot 49, thereby fulfilling the by-law frontage requirement. We affirm, essentially for the reasons well explained in the judge's thoughtful memorandum.
Section 179–26(A) of the by-law provides: “One (1) single-family dwelling may be erected on any lot, regardless of a common ownership with that of adjoining land located in the same residential district which, as of May 7, 1973, contained at least fifteen thousand (15,000) square feet and had a minimum frontage of one hundred (100) feet and complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement and provided, further, that the proposed structure is to be located on such lot so as to conform to the minimum requirements of front, rear and side yard setbacks and to all other requirements for such structures in effect at the time of plan endorsement; provided, however, if there are no applicable setbacks, the front yard setback shall be 30 feet and the side and rear yards setbacks shall be 20 feet.”
Background. On April 5, 1941, the parcel of land designated on the town's assessors map as lot 49 was created as a separate lot when Frank D. Lawrence conveyed it to Catherine J. Williams; lot 49 is located in a residential rural zoning district and contains 28,706 square feet of land, with 179.93 feet of frontage on Frank D. Lawrence Road, a nine-foot-wide private dirt road. Stroh purchased the lot in July, 1983; it was held in escrow until Stroh paid the full purchase price. The deed was released on April 4, 1989, and Stroh recorded it on that day. Shortly afterward, Stroh conveyed lot 49 to S. Bradford Smith and himself, as cotrustees of the Nicholas Trust, recording the deed on May 5, 1992. The plaintiff holds title to the adjacent lot 71; the two lots are separated by a strip of land known as Ruhlaw Road. It is significant to note that, in 1976, Stroh's mother had given him the adjacent lot 48; he lost title to that property in 1992 through foreclosure.
Frank D. Lawrence Road has existed since 1924; the road was once referred to as Narrows Road, and later as George Darby Cartway.
In August of 1947, Williams conveyed lot 49 to William Clyde Cannon and Gretchen Constance Cannon as tenants by the entirety. William Clyde Cannon conveyed the parcel to his son, William Walter Cannon, on July 1, 1983. On July 9, 1983, William Walter Cannon executed a deed to Stroh.
Sometimes referred to as “Ruhlah Road.”
The town's planning board was established in 1953; the first zoning by-law was adopted in 1960. Lot 49 was a buildable lot under the 1960 adoption, as it conformed to the minimum area and frontage requirements. In particular, § VI of the 1960 by-law provided that a lot of land located in a residential district “shall have a frontage of at least one hundred (100) feet on a public or private way, and shall contain at least fifteen thousand (15,000) square feet ...” (emphasis supplied).
In 1971, the town amended its by-law, increasing the minimum area and frontage requirements; lot 49 became a nonconforming parcel under the requirements established by the 1971 amendments. However, the by-law provided grandfather protection to permit construction of a single-family dwelling on a lot “which, as of May 7, 1973, contained at least fifteen thousand (15,000) square feet and had a minimum frontage of one hundred (100) feet and complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement” and, also, provided that the proposed dwelling complied with certain setback requirements. Neither the size of the lot nor the setbacks are at issue here.
The town made subsequent changes to its by-law in 1978 and 1986, increasing minimum lot size and frontage requirements with each amendment; the 1986 requirements were in place when Stroh applied for his building permit.
In April, 2007, Stroh applied for and received a building permit for the construction of a single-family home on lot 49. The plaintiff's complaint challenging the permit was denied by the building commissioner; she appealed to the board, which affirmed the denial. On September 7, 2007, the plaintiff filed a complaint in the Land Court seeking judicial review of the board's decision pursuant to G.L.c. 40A, § 17 ; the matter was remanded to the board for further hearing. In January, 2008, the board again upheld issuance of the permit after finding the lot buildable and determining that Frank D. Lawrence Road provided “lawful frontage” for lot 49 by way of the grandfathering provision of § 179–26(A) of the by-law. The plaintiff then amended her complaint in the Land Court to challenge the board's revised decision.
In issuing the permit, the building commissioner identified “Ruhlah Road as the qualifying street for purposes of recognized frontage” under § 179–26(A) of the by-law.
The issue on remand was whether Frank D. Lawrence Road (rather than Ruhlaw Road, which never has been improved and remains a wooded area) provided the necessary frontage.
After a de novo hearing, the judge upheld the board's decision to issue the permit, concluding that lot 49 is grandfathered under the by-law and, therefore, is a buildable lot. The judge noted, first, that § 179–26(A) afforded more grandfather protection than G.L.c. 40A, § 6, because the by-law provision contained the phrase, “regardless of a common ownership with that of adjoining land located in the same residential district.” Compare G.L.c. 40A, § 6. For that reason, lot 49 did not lose what grandfather protection it acquired when Stroh later acquired (and then lost) the adjoining parcel, lot 48. As a result, the judge did not determine whether grandfather protection also was available under G.L.c. 40A.
1. Frontage. Quoting from Clark v. Wagoner, 2 LCR 1, 2 (1994), where the same by-law provision was at issue, the judge observed that “[t]he core determinations of minimum frontage and sufficiency of access such as would entitle Locus to a designation as a buildable lot under the Zoning Ordinance, are ... to be made according to the pre–1971 zoning standards for frontage and access.” On that basis, he was satisfied that the “record demonstrates that Frank D. Lawrence Road provides adequate access under the pre–1971 zoning standards and thus provides legal frontage for Parcel 49. Seven other single-family homes, including [the plaintiff's], use Frank D. Lawrence Road for frontage and vehicular access to their properties. Most of these homes were constructed prior to the 1971 bylaw amendments.” The judge also noted that other provisions of the by-law contained an explicit reference to “street frontage,” as opposed to “frontage,” and that, had the drafters of the 1971 by-law intended that “frontage” mean “street frontage,” with the requirements it encompassed, they would have used it. Finally, he observed that the by-law's description of the lots to be grandfathered tracked the language of the 1960 by-law, further evidencing the drafters' intent to protect lots that were buildable under that prior by-law.
In Clark, the board had determined that “in order to be afforded grandfather protection, a lot must have had as of May 7, 1973 at least 100 feet minimum legal frontage-determined according to the current standards for frontage.” Id. at 1. The Land Court judge in Clark disagreed, quoting from Adamowicz v. Ipswich, 395 Mass. 757, 762 (1985), for the proposition that “[i]n determining whether Locus is to be protected as a legal nonconforming lot, its status ‘immediately prior to the [1971] zoning change is controlling.’ “ Clark, supra at 2.
2. Planning board “endorsement.” The plaintiff also argued that lot 49 failed to qualify for grandfather protection because of the requirement of § 179–26(A) that the property must have “complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement” and the planning board never had endorsed a plan on which lot 49 appeared (emphasis supplied). The judge concluded that the language “if any” was intended “to address the status of lots created before any subdivision rules or regulations existed,” and that concluding otherwise would “render the words ‘if any’ superfluous.” He noted further that the by-law provided default setback provisions in the event “there were no applicable setbacks” provided in a planning board endorsement, and that the plaintiff's interpretation would render this provision meaningless. For these reasons, the judge concluded that no prior planning board endorsement was required and that the “site plan for Mr. Stroh's proposed structure shows that it will exceed the setback requirements in the bylaw.” The plaintiff's appeal to the Land Court was dismissed with prejudice; she timely appealed.
Discussion. “We determine the meaning of a bylaw ‘by the ordinary principles of statutory construction.’ ... We first look to the statutory language as the ‘principal source of insight into legislative intent.’ “ Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 477 (2012) (citations omitted).
In her appeal, the plaintiff focuses on the word “frontage,” arguing that the judge should have understood that term to mean “street frontage” as that term is used elsewhere in the 1971 by-law and that, therefore, lot 49's 179.93 feet of frontage on Frank D. Lawrence Road, a private way, was insufficient to secure grandfather status. The issue is whether the definition of frontage should be found in the pre–1971 definition, which required only one hundred feet of frontage along any public or private way, or the 1971 definition of a street, that is, a “way which is over 24 feet in right-of-way width which is dedicated or devoted to public use by legal mapping or by any other lawful procedure.” We are persuaded that the judge's reading is a correct one. That is, the definition of frontage is to be determined by pre–1971 standards for the reasons he explained. That conclusion is reinforced because it is consistent with the legislative purpose of G.L.c. 40A, § 6. See Timperio v. Zoning Bd. of Appeals of Weston, 84 Mass.App.Ct. 151, 157–158 (2013), and cases cited. As a result, lot 49's 179 .93 feet of frontage on the private Frank D. Lawrence Road was sufficient to preserve its status as a buildable lot before the by-law adoption in 1971 and thus to qualify it for grandfather protection.
Section 6 of G.L. c. 40A “exempts certain lots from increased zoning restrictions provided certain conditions are met.” Rourke v. Rothman, 448 Mass. 190, 192 (2007), quoting from Adamowicz v. Ipswich, 395 Mass. at 758. “These conditions are that, ‘at the time of recording or endorsement,’ the lot (1) had at least 5,000 square feet with fifty feet of frontage, (2) ‘was not held in common ownership with any adjoining land,’ and (3) ‘conformed to then existing requirements.’ “ Ibid., quoting from G.L.c. 40A, § 6. As the judge noted, the absence of common ownership is not a requirement of the town's by-law.
The plaintiff also focuses on the language “complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement,” arguing that it was the intent of the by-law to provide grandfather protection only to those lots “shown on plans endorsed by the Planning Board prior to May 7, 1973 which met the frontage standards in effect on that date.” However, we also agree with the judge's careful interpretation of the phrase “complied with the rules and regulations of the Planning Board, if any, in effect at the time of endorsement.”
In sum, we are satisfied that the board's approval of Stroh's lot 49 building permit was not “based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.” Sedell v. Zoning Bd. of Appeals of Carver, 74 Mass.App.Ct. 450, 453 (2009), quoting from Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass.App.Ct. 68, 72 (2003).
Judgment affirmed.