COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF THE TRIAL COURT

MIDDLESEX, ss.

Miscellaneous Case No. 279910

ALFRED CASELLA and PAULINE CASELLA, as trustees of the CASELLA LEXINGTON REALTY TRUST,

Plaintiffs

v.

ROBERT F. SACCO, JUDITH J. UHRIG, FRANCIS W. K. SMITH, ARTHUR C. SMITH, and NYLES N. BARNERT, as they are members of the BOARD OF APPEALS OF THE TOWN OF LEXINGTON,

DECISION GRANTING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON COUNTS I AND II AND DENYING DEFENDANTS' CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT

This unverified complaint was filed by Alfred Casella and Pauline Casella, Trustees of the Casella Lexington Realty Trust ("Trust") on March 29, 2002 under the provisions of G.L. c. 40A, ?17 seeking to annul a decision by the Lexington Board of Appeals ("Board") confirming the determination by the Lexington Zoning Enforcement Officer ("Enforcement Officer") that certain property owned by the plaintiffs "is not grandfathered and must meet the current Zoning By-law requirements." In Count II of their complaint, plaintiffs sought under G.L. c. 231A a declaration by this court that the property in question is, in fact, a grandfathered lot eligible for construction of a single family house. Plaintiffs filed an amended complaint on April 14, 2003 in which they added a Count III praying that the court rule that the actions of defendants in not allowing them to build on their lot amounted to a taking of their property without compensation, and was thus unconstitutional. The defendant board filed an answer to the amended complaint on April 24, 2003.

Plaintiffs filed a Motion for Partial Summary Judgment, accompanied by a memorandum in support thereof and affidavits of Alfred Casella, Trustee, and Alan Lipkind, Esq., on

August 1, 2003. The motion, limited to Counts I and II of the amended complaint relating to the issue of "grandfathering," but not seeking judgment on the issue of the alleged taking without compensation, was assigned to be heard on February 19, 2004. On February 11, 2004, the defendant board filed an opposition to plaintiffs' motion for summary judgment along with its own cross motion for partial summary judgment, together with a memorandum in support thereof and an affidavit of Matthew Hakala, the town's Zoning Enforcement Officer. On February 17, 2004, plaintiffs filed a reply to defendants' opposition to plaintiffs' motion for partial summary judgment, and an opposition to defendants' motion for summary judgment. The cross motions for summary judgment were argued and taken under advisement on February 19, 2004. Due to the fact that some of these filings were served shortly before the motions were argued, the Court (Trombly, J), with the assent of counsel, allowed the filing of additional oppositions and responses after the hearing date.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass. R. Civ. P. 56(c). I find and rule that, as to the issue of whether the subject lots are grandfathered, no outstanding material issues of fact exist that will preclude a disposition as a matter of law. This issue is a question of law and is thus ripe for disposition on summary judgment. Community Nat'l Bank, 369 Mass. at 553.

1. Background

The following facts are properly before the court for its consideration based on materials submitted conformably with Mass. R. Civ. P. 56(c) and are undisputed:

1. The Trust is the owner of a parcel of land in Lexington shown as lots numbered 110 and 111 on a plan entitled "Section 3 'FARMHURST' Lexington, Mass., Belonging to Neil McIntosh, Tr.," recorded at the Middlesex South District Registry of Deeds⁽¹⁾ on May 22, 1919, in Plan Book 273, Plan 9, after having been approved by the Lexington Board of Survey on May 17, 1919 (the "1918 subdivision plan"). A copy of a portion of this plan is attached as "Exhibit A."

2. The 1918 subdivision plan shows a 146 lot subdivision. Lots 110 and 111 as shown on said plan have a combined frontage of 100.75 feet on Stedman Road (shown on the 1918 subdivision plan as Allen Street), and a combined area of 14,847 square feet.

3. By deed dated May 16, 1941, and recorded in Book 6513, Page 590, Neil McIntosh, Trustee, conveyed "three certain lots of land," numbered 109, 110, and 111 (in addition to other non-adjacent lots) to himself, individually.

4. By deed dated May 8, 1948, and recorded in Book 7440, Page 501, Neil McIntosh conveyed "four (4) certain lots of land" numbered 108, 109, 110, and 111 to Paul Redmond and Ebon Redmond.

5. By deed dated May 28, 1952, and recorded in Book 7911, Page 585, Paul Redmond and Ebon Redmond conveyed "four certain lots of land" numbered 108, 109, 110, and 111 (in addition to other land) to James Gordon and Ruth Gordon.

6. By deed dated March 16, 1956, and recorded in Book 8695, Page 387, James Gordon and Ruth Gordon conveyed "four certain parcels of land," numbered 108, 109, 110 and 111, to Guy Spuria and R. Marie Spuria.

7. By deed dated September 20, 1958, and recorded in Book 9231, Page 591, Guy Spuria and R. Marie Spuria conveyed "a certain parcel of land . . . Lots 110 and 111" to Vincenzo Casella and Alice Casella. This was the first time that lots 110 and 111 were conveyed separately from lots 108 and 109 as shown on the 1918 subdivision plan.

8. By deed dated July 25, 1961, and recorded in Book 9855, Page 223, Vincenzo Casella and Alice Casella conveyed lots 110 and 111 to Alfred Casella and Pauline Casella.

9. By deed dated April 4, 1980, and recorded in Book 13941, Page 544, Alfred Casella and Pauline Casella conveyed lots 110 and 111 to themselves as Trustees of the Casella Lexington Realty Trust.

10. Since the recording of the deed dated September 20, 1958, from Guy Spuria and R. Marie Spuria to Vincenzo and Alice Casella, lots 110 and 111 have not been held in common ownership with any adjoining property.

11. The Town of Lexington adopted its first Zoning By-law on March 17, 1924, almost five years after the recording of the 1918 subdivision plan. At all times since 1950, the Lexington Zoning By-law defined "Lot" as "an area of land with one ownership with definite boundaries ascertainable by recorded deed or plan and used or set aside and available for use as the site of one or more buildings or for any other definite purpose."

12. On December 4, 1950, almost eight years before Vincenzo and Alice Casella acquired lots 110 and 111, the Town amended the By-law's minimum dimensional requirements for lots in the residential district wherein plaintiffs' lot is located. Specifically, the requirement for minimum area was increased in Section 8 of the by-law from 12,500 to 15,500 square feet, and the requirement for minimum frontage was increased from 100 to 125 feet. At the time this amendment took effect, lots 110 and 111 were still combined with lots 108 and 109 and were owned by Paul Redmond and Ebon Redmond.

13. Section 8(a)(2) of the Lexington Zoning By-law, as amended effective December 4, 1950 and in effect at the time of the transfer to Vincenzo and Alice Casella in 1958, provided that the requirements for frontage and minimum lot area did not apply "to any lot lawfully laid out and recorded by plan or deed prior to March 17, 1924", which is the date zoning was first adopted in Lexington. The premises which are the subject of this litigation were laid out and recorded by plan or deed prior to that date (on the 1918 plan) and, according to plaintiffs, the fact that the lots 110 and 111 were held in common ownership with other lots in 1950 before they were severed eight years later is irrelevant.

14. Until it was amended in 1998, Lexington's Zoning By-law's exemptions from lot dimensional requirements did not mirror those of G.L. c. 40A, ?6, fourth par., in that under the Lexington By-law, whether a lot was continuously held in common ownership with adjoining property was irrelevant to the issue of whether a lot was grandfathered. The By-law was amended in 1998 to require that the lot seeking exemption from the dimensional minimums not have been held in common ownership with an adjoining parcel, thus making the By-law mirror applicable state statute. The 1998 amendments to the By-Law did not increase frontage or area requirements as applied to plaintiffs' property.

15. Subparagraphs 7.4.1.a and 7.4.1.b of the Lexington Zoning By-law provide that, as to area and frontage, lots laid out and recorded by plan or deed prior to March 18, 1929 must have an area of 5,000 square feet and frontage of at least 50 feet.⁽²⁾ These provisions use language nearly identical to G.L. c. 40A, ?6, fourth par., which acts to "grandfather" residential lots not meeting current zoning requirements. The Casellas' property was not held in common ownership with adjoining lots at the time the Lexington Zoning By-Law was amended, or at any other time since 1958.

16. Stedman Road (shown on the old plan as

17. On September 13, 2001, in response to a request for a determination of whether the lot is buildable filed by the plaintiffs, the Zoning Enforcement Officer determined that "the lot is not grandfathered and must meet the current Zoning By-law requirements." His decision further stated that "The current owners do not and have not owned adjoining parcels that would combine the properties. The current lot was carved out of a larger lot in 1958 (lots 108-111) . . . [B]ecause the lot was created after 1950 the lot is not grandfathered and must meet the current Zoning By-Law requirements."

18. Plaintiffs timely filed an appeal of the Zoning Enforcement Officer's ruling to the Zoning Board of Appeals ("ZBA"), and on March 11, 2002 the ZBA filed its decision with the Lexington Town Clerk upholding the ruling that the "lot is not grandfathered and must meet the current Zoning By-Law requirements." The current matter was then filed on March 29, 2002. Plaintiffs contend that the board's decision exceeded its authority of the board, was arbitrary, capricious, and an abuse of its discretion, and was not in accordance with the law. There is no dispute that plaintiffs are persons aggrieved by the decision, are adversely affected by it, and thus have standing to bring this action.

* * *

Decisions of local zoning and planning boards are entitled to substantial deference because of the theory that members of a local board are more familiar with the situation in the subject city or town than would be a justice of a court called upon to review such actions. This is not to say that a court, in a trial de novo, cannot on occasion reverse and disagree with the decision of a local board. On appeal, however, the "decision of the board cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 486 (1999) (citations omitted); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635, 639 (1970).

The central issue to be determined in this case is whether the trust property is grandfathered from current dimensional requirements of the Lexington Zoning By-law. An affirmative answer to this question would require that the decisions of both the Zoning Enforcement Officer and the Board of Appeals be reversed. A second question is whether the plaintiffs, as owners of land along a right of way, have the right to construct that way, as they contend. Plaintiffs further plead that if they construct

2. Status of the Lots with respect to Zoning Dimensional Requirements

Lots 110 and 111, the two lots currently owned by the trust, came into existence on the 1918 subdivision plan. This plan was approved by the Board of Survey and recorded at the Middlesex South District Registry of Deeds in 1919. The two lots, taken together, have slightly over 100 feet of frontage on

Plaintiffs reach the above conclusion by contending that the provision of the 1998 zoning by-law amendment which disallows grandfather status for lots once held in common ownership with adjoining land does not apply to lots 110 and 111. Plaintiffs contend this is because a town cannot retroactively repeal a grandfather provision in its zoning by-law where a lot in question was first described as a separate identifiable parcel in a plan or deed recorded previous to the enactment of the new lot size requirements, and where the preceding by-law was silent on a requirement that any such lots be commonly held. Accordingly, plaintiff claims the right to obtain a building permit for the combined lots under the grandfather provisions of the Lexington Zoning By-law that existed at the time the trust received the current deed to the property in 1980. Defendants disagree, contending that relevant language found both in the by-law and in the Zoning Enabling Act under G.L. c. 40A, ?6 provides that lots invariably are not grandfathered from an increase in dimensional requirements when they are held in common ownership with adjoining property on the date such increase takes effect. Specifically, they claim that the important date in this case is December 4, 1950. On that date, the zoning by-law was amended to increase the minimum dimensional requirements applicable to the property. Defendants aver that plaintiffs' land, as it exists today (lots 110 and 111), was held in common ownership with adjoining parcels at that time and therefore cannot, subsequent to December 4, 1950, become exempt from the new requirements.

Defendants highlight the fact that plaintiffs' non-conforming lot did not even exist in its present form until 1958, at which time owners Guy Spuria and R. Marie Spuria carved lots 110 and 111 out from their larger, conforming parcel.⁽³⁾ Because this was the first time that parcels 110 and 111 were conveyed separate of any other adjoining parcels, and because that date fell after the 1950 zoning change, the defendants claim the lots lost their grandfather protection from the 1950 dimensional requirements when they were severed from the larger parcel owned exclusively by the Spurias. The defendants further argue that any silence regarding common ownership requirements in the pre-1998 amendment should not be construed in the plaintiffs' favor because case law in the commonwealth establishes that two adjacent lots in common ownership shall merge for purposes of interpreting zoning regulations. This court disagrees.

The Commonwealth protects non-conforming uses of land from the effects of zoning changes through G.L. c. 40A, ?6. The first sentence of G.L. c. 40A, ?6, first par., provides that "[e]xcept as hereinafter provided, a zoning ordinance or by-law . . . shall apply to . . . a building . . . permit issued after the first notice of . . . public hearing . . . [on a proposed change to an ordinance or by-law] . . ." The fourth paragraph of G.L. c. 40A, ?6, constitutes one of the exceptions referenced in the first paragraph of the section by protecting a lot for single or two-family residential use not held in common ownership from any increase in area, frontage, width, or depth requirements of a zoning by-law, provided the lot "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."

The grandfathering provisions for lots held in separate ownership first appeared in St. 1958, c. 492, which amended the prior G.L. c. 40A by inserting Section 5A and establishing minimum requirements of 5,000 square feet of area and 50 feet of frontage. See Mark Bobrowski, Handbook of Massachusetts Land Use & Planning Law, ?5.3.1 (1993). I infer that prior to the enactment of that 1998 amendment, a city or town could change its zoning by-law to increase dimensional requirements, and such changes would apply to every single-family lot absent an accompanying grandfathering protection. However, I also recognize the right of a municipality to grant more generous protections to the owner of a nonconforming lot than those provided by G.L. c. 40A, ?6 or by common law.⁽⁴⁾

Section 135-38 of Lexington's current by-law provides that any lot, if used for a one-family or two-family dwelling, need not comply with the requirements for minimum lot area and frontage if, inter alia, at the time of the most recent instrument of record prior to the effective date of the zoning change from which the exemption is sought, the lot: (1) was not held in common ownership with any adjoining land, (2) had at least 5,000 square feet of lot area and 50 feet of lot frontage, and (3) conformed to the then existing requirements for minimum lot area, minimum lot width, minimum front yard, minimum side yard and minimum rear yard. This provision closely mirrors G.L. c.40A, ?6.

Indeed, the

Retreating in time to 1980, the year plaintiffs transferred the lots into the trust, the applicable Lexington Zoning By-law provision in effect at the time, Section 8(a)(2), was silent on whether it afforded protection to lots held in common ownership with adjacent lots. Specifically, it states only that provisions establishing minimum lot frontage and total area do not apply to "[a]ny lot lawfully laid out and recorded by plan or deed prior to March 17, 1924." The plaintiff's lot is so qualified in that it was laid out and recorded by plan in 1919. It was not until the 1998 by-law amendment that Lexington adopted a denial of protection into its Zoning By-law in alignment with the provisions of G.L. c. 40A, ?nbsp;6.

If this court were to apply Adamowicz to the case at hand, it would find that lots 110 and 111 are not grandfathered. The same result would occur if we strictly follow ?138-35 of the current by-law. However, while Adamowicz applies to G.L. c. 40A, ?6 and, it is assumed, for the purpose of interpretation, to similarly constructed local by-laws, it does not apply to Section 8(a) of the 1950 by-law. At the time lots 110 and 111 were deeded to the trust and until the by-law was amended in 1998, the lots were clearly grandfathered by the plain language of Section 8(a) of the 1950 by-law in effect throughout the time period. These facts set up the central question of this analysis: Can the Town of Lexington retroactively extinguish the grandfathered status of one and two-family residential lots through the 1998 amendment to its zoning by-law?

The case at hand is remarkably similar to Dona v. Town of Sutton, 2 LCR 97 (1994) (Misc. Case No. 193324). Much like the Town of Sutton in that case, the Town of Lexington here is attempting to retroactively apply a new zoning by-law which rescinds grandfather protection for lots held in common ownership (lots 110 and 111 in the current matter) that were afforded such status before the change. In Dona, the language of the town's bylaw in effect at the time of the last conveyance was very similar to that employed by the 1950 Lexington by-law: "any nonconforming lot lawfully laid out by plan or deed duly recorded . . . which complies at the time of recording . . . with the minimum . . . requirements . . . may be built upon provided it is in accordance with the Zoning Act". Like the Town of Lexington in the instant matter, the Town of Sutton later amended its by-law so as to bring it into alignment with Chapter 40A's prohibitions against grandfathering where lots are commonly held. Ultimately, the court (Scheier, J) in Dona ruled that if the old by-law were to be given full effect, the parties must look not to the most recent instrument of record showing a single or commonly held lot, but only to the most recent instrument or plan of record which first identified the lot as a separate entity. In the instant matter, the first plan of record identifying lots 110 and 111 as separate entities is the 1918 subdivision plan. Mirroring the result in Dona, this court once again cannot give full retroactive effect to a zoning by-law which the Town of Lexington passed after the subject lots clearly had secured their exempt status.

Further, the definition of a "LOT" under the Lexington Zoning By-law at all times throughout the transactions involved in this matter indicates that lots 110 and 111 are to be construed as separately delineated from the parcel from which they were carved in 1958. This definition reads: "An area of land in one ownership with definite boundaries ascertainable by recorded deed or plan and used or set aside and available for use as the site of one or more buildings or for any other definite purpose."⁽⁵⁾ Lots 110 and 111, at all times since their creation, have been clearly ascertainable with definite boundaries as per the 1918 subdivision plan. They have also been set aside and available for use as the site or a building or for some other definite purpose throughout this time, and have been conveyed as separate pieces each time ownership transferred. Thus, lots 110 and 111 have at all times since their creation met the applicable description of a "lot" under the Lexington By-law.

The case at hand is not an instance of a common owner holding two lots under a single, unified description attempting to undo such an arrangement by retreating to the earlier, separate delineation, a scenario which surely would raise questions of an improper joining of lots. The defendants' reliance on Heald v. Zoning Bd. of Appeals of Greenfield, 7 Mass. App. Ct. 286 (1979) for the proposition that contiguous lots held in common ownership are always construed to be one lot for zoning purposes is an overly broad interpretation when applied to the facts at hand. In Heald, the

A result that would strip grandfather status from the plaintiffs' property would be contrary to the policy objectives of G.L. c. 40A, ?6 and the Lexington By-law in that the intent of both are to alleviate the impact of zoning changes on existing property owners. See Sturges v. Chilmark, 380 Mass. 246, 261 (1980). After all, this is not a situation in which lots 110 and 111, as combined, did not meet the minimum dimensional requirements of G.L. c. 40A, ?6 or of the Lexington Zoning By-law. Cf. Brennan v. Smith, 8 LCR 38, 42 (2000) (holding town acted permissibly in amending zoning by-law to bring minimum grandfather protection into conformity with Section 6). In applying its 1998 Zoning By-law amendment to the instant case, the Town of Lexington is attempting to impermissibly change the definition of which lots are entitled to grandfather protection.

2. Improvement of

so as to Meet Frontage Requirement

In addition to their contention that their non-conforming lot is grandfathered and therefore need not comply with current frontage and area requirements of the Lexington Zoning By-law, plaintiffs also claim that they have, as the owners of land abutting a private way, albeit an unconstructed way, the right to improve that way in such a manner that it will supply the frontage required by the by-law. For this claim, they primarily rely on LeBlanc, supra. In LeBlanc, the lot at issue was created by a plan recorded in1925. The first town zoning by-law took effect in 1946.

To counter plaintiff's argument, and to show that an unconstructed paper way cannot provide frontage for purposes of calculating whether a lot is buildable, defendants rely primarily on Shea v. Bd. of Appeal of Lexington, 35 Mass. App. Ct. 519 (1993). In Shea, the lot at issue was created by a plan recorded in 1913, which was before the Town of Lexington adopted zoning. Id. at 519. In 1978, plaintiff lot owner obtained approval from the town planning board for subdivision approval for the lot (along with another lot) under the "approval not required" section of the commonwealth's Subdivision Control Law, G.L. c.41, ?81P. In 1980, Lexington's building commissioner rejected the plaintiff's application for a building permit for the lot in question because a portion of the lot frontage required for approval followed a street that was listed on the subdivision plan as a street, but in fact had never been constructed and, for that matter, not considered to actually be a street by the town. Id. at 520. The

Turning to the Town of Lexington's Zoning By-law, in Section 135-8, "FRONTAGE, LOT" is defined as:@IN1 = "The continuous portion of the line separating a lot from a street to which the owner of the lot can provide the physical access to a principal building on the lot, in compliance with applicable by-laws, regulations or laws, for motor vehicles to reach required off-street parking spaces or loading bays, and for emergency services such as fire protection or ambulance service, and for other vehicles to gain access to the principal building for deliveries, such as mail." (emphasis added).

In turn, the town defines "FRONTAGE, STREET" as: "

48, having, in the opinion of the Planning Board, sufficient width, suitable grades and adequate construction to provide for the needs of vehicular traffic . . ."⁽⁶⁾

The Casellas have communicated that they are willing to construct that portion of

3. Conclusion

I therefore annul the decision by the Lexington Board of Appeals to the extent that it rules that plaintiffs' lots, identified as 110 and 111 in the 1918 subdivision plan, are not legal nonconforming lots eligible for construction of a single-family house. Lots 110 and 111 are properly grandfathered under Section 8(a) of the 1950 Town of Lexington Zoning By-law, although plaintiffs' ability to build is subject to a determination that

Plaintiffs' Motion for Partial Summary Judgment on Counts I and II are granted in part and denied in part, while Defendants' Cross Motion for Partial Summary on Counts I and II are denied. Count III of plaintiffs' claim was not raised in these motions.

By the Court. (Trombly, J.)

Attest:

____________________________

Deborah J. Patterson

Recorder

Dated: October 8, 2004

1. All references to recorded plans or instruments refer to instruments and plans recorded at the Middlesex South District Registry of Deeds.

2. The Lexington Zoning By-law was codified on April 22, 2002. The "grandfather" provisions, formerly Section 7.4.1 under the Zoning By-law, became Section 135-38 under the Code of the Town of Lexington.

3. The Spurias were the owners of lots 108, 109, 110, and 111 before the1958 transfer to the Casellas.

4. See Generally, Lee v. Bd. of Appeals of Harwich,

5. Zoning By-law for the Town of Lexington Amended December 4, 1950, Section 2(f); Code of%