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21 BARCELONA AVENUE - ZBA �� ����2 ��,,� __ _ _ _ _ � � o � � � �- � � i .�.. ' e CITY OF SALEM. MASSACHUSETTS BOARD OF APPEAL �~ I :_'V - tiNl lir Pl >fR,=.Ff JFC rL.i+:if7 SA L JR `-145. A C H Us r iS U197(D r!-L:. h{A=VF -)78 7-15 13595 Fa... 9-%8.7-11 -9816 1` KIMBERLEY DRISC OLL j^`J ''"F'7 —3 7 l: l4 MAYOR ; i April 3, 2008 Decision City of Salem Zoning Board of Appeals Petition of Patrick Chasse requesting variances from minimum lot size and minimum lot iiidth to construct a single family home at 21 BARCELONA AVENUE JR-1 1. A public hearing on the above Petition was opened on March 19, 3008 pursuant to Mass General Law Ch. 40A, §§ 11. The public hearing was closed on March 19, 2008 with the lullow'ing Zoning Board members present: Robin Stein (Chair), Rebecca Curran, Elizabeth Debski, Richard Dionne, :\nnie Harris and Bonnie Blair (Alternate). Petitioner seeks variances pursuant to the following sections of the Salem Zoning Ordinance: Table 1: Residential Density Regulations. Statements of fact: I . The petitioner, Patrick Chasse, has a purchase and sale agreement with Blanche Francullo, owner of 21 Barcelona Avenue, a property located in the Residential One Family (R-I ) Zoning District. 2. The petition is accompanied by a plan entitled, "Plan of Land", prepared by Eastern Land Survey Associates, and last revised March 24, 2008. 3. Attorney Stephen Lovely presented the petition on behalf of the petitioner. 4. The petitioner is proposing to build a single family house in an R-I District, The Zoning Ordinance requires the lot to have 15,000 square feet of arca and 100' Icet of lot width. 21 Barcelona :\venue contains approximately 3.433 square feet of area and has a lot width of approximately 74.3' Icct 1 he petitioner is seeking ya i:mces from minimm� lot size and ninimum lot width. S. The MaS5aehLISCRS Land Court has determined that 21 13arcclona .\venue is not a. non-conlonnin_, buildable lot, but mcred with 19 Barcelona :\venue. (i. :V the public hearing on March 19, _2005, Victor L'Esperance and Patricia Pinu ea spoke in support of the petitioners request 6or variances to allow the construction of a allele family home. 2 I he loam of Appud. alicr ca clul consideration of the cvidence presented at the public hearing, and after thorough review of the plans and petition submitted. makes the lollOwing findings: I. I he topou;qphy and soil conditions of the parcel, as well as the sewer casement on the parcel, are uniquC conditions affecting the locus, not generally athelia, other lots in the neighhorhood and Zoning Disuict. 2. A literal cnlorcemcnt of the provisions of the City of Salcm Zoning Ordinance wOuld result in substantial hardship financial or otherwise to the petitioner, who installed a loundation in ,00d faith pursuant to the building permit gnmted by the City of Salem. 3. The proposed lot is similar to other lots in the neighborhood and variances requested are not contrary to the public interest. Owing to special conditions desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpOSe of the ordinance. On the basis of the above findings of fact and all evidence presented at the public hearing including, but not limited to, the Plans, Documents and testimony, the Zoning Board of Appeals concludes: I. 'ro allow for the construction of a single family home, the petitioner may vary the tents of the Salem Zoning Ordinance, specifically the requirements for ?2a minimum lot area and minimum lot width so as to have a lot with an area of 3,433 square feet and a lot width of 74.3' feet. 2. In pennitting such change, the Board of Appeals requires certain appropriate conditions and safeguards as noted below. In consideration of the above, the Salem Board of Appeals voted, five (5) in favor (Dionne, Stein, Curran, Barris, and Debski) and none (0) opposed, to grant petitioner's requests for variances subject to the following terms, conditions, and safeguards: I. Petitioner shall comply with all City and State statues, Ordinances, COLICS, and regulations. 2. All Construction shall he done as per the plans and dimensions submitted to :aid approved by the Building Commissioner. 3. All requirements of the Salem Fire Department relative to smoke and lire safety S11,111 he strictly adhCrcd to. 4. Pctitionier :hall ohtain a building permit prior to hcginnili" any consu-uction. 3. A Cei-IIfiC:IIC ofOCCupwlcy is to he ohtaincd. 6. Petitioner shall Obtain street numboing Dunt the Cite ufSalcm .\sscssur's Office - and shall display sail) number Sol as to he riihlc front the street. 7. PctiuOncr Is ro obtain apprucal from :uty City Board ur Commissmu hay in�� jurisdictiuft ill ludin_, hilt not lintiICLI to. [Ile Plannin, BOa d. S. Terms set ImIII Lvithin the Agreement lift Judgnicnt hctwcell Patricia Pill call and the Cityill Salem Board of Appeals 1 Land CourI Department Dockct No. tt6MISC33n360) shall Ile adhered W. 9. The petitioner shall take all reasonably necessary steps to assure that nater runotl to\\ard all abutting properties are abated. I0. "rhe petitioner shall suhmit a revised plan adding the surer easement land to ?1 Barcelona Avenue. Note: The revised plan, dated March -14, 2008 Leas submitted April 3. '_003 and the lot area and dimensions of the final plan have been specified III this decision. Rubin Stein, Chair Salem Zoning Board of Appeals ATTACHEMENT: Agreement ror Judgment between Patricia Pitreau and the City OC Salem Board of'Appeals (Land Court Department Docket No. 06MISC320360) ' A(.LIPY OF 1111S DECISION HAS MEN 1:111:1)WIni 1M,PI-ANNIN(;BOAKD AND"I III;( I I Y( I.IKK Appeal froin this decisinn. If any, shall be made pursuant to Section 17 )f the N'IassachLLsetts General Laws Chapter 40A, and shall be filed Within 20 days of liIIng 00his deeisiun in the office of the City Clerk. Pursuant to the Massachusetts General Laws Chapter 40A. Section 11, the Variance or Special Permit . granted herein shall not take effect until a copy of the decision bearing the certificate of the City Clerk has been filed with the Essex South Registry of Deeds. 1 1 COMMONWEALTH OF MASSACHUSETTS ESSEX, SS. LAND COURT DEPARTMENT DOCKET NO. 06MISC 320360 I ) PATRICIA A PTIREAU, ) Plaintiff ) V. I ) NINA COHEN,RICHARD D1bNNF,BONNIE BEIAM, ) EDWARD MORIARTY and WHOL,AS==L% ) as tbey on members of the City of Salem Do"of Appeals, ) .od BIANCHE E.FRANCULLO, ) Dig, bm i ) ACaRrhaWr FAR nR][`aRf71YT Made by and betaenza PATRICIA A.PfIRP,AU(Pitreao)her heirs,beneficiaries,and succcmn in Udcm t(mllecdvdy'plein th"� on the ane head,and NINA COHEN,RICHARD DIONNE,BONNIE BELAIR,EDWARD MORIARTY,and NICHOLAS FMMES,as they are members of the City of Salem Board of Appeals(Board),and BLANCHE B.FRANCULLO, (Francullo and collectively"defmdanu'),this 8°day of Augusk 2007. WHEREAS.plaintiM have hmaght suit against the defendant is the aboveaettitled maters:and WHEREAS,the putieses have reachad an agement regarding the issues pra mted is that procee fts,pursumt to the following trams• nwwnanarc►una . wTropnMM WII ewe K1100L OfwlR .Gwl44 W e.M{ Oltl iL•YW .nw.ewnal E5i1 lrf ILa rirJ 91 is all& Looz/do/aa err.. "A AiA YVa aelti an.L 800z/al/C0 7 i NOW,THEREFORE the parties covenant and zV=as follows: I 1. That lot number 329 mntaint 7,493 squad feet,man of low owned by Frar=A0, shall be considered a legal buildable lot for single 9tmily Purposes pursuant to the budding permit issued by the building inspector in the f5ry of Salves. 2. That Ftmcullo shall build a smgle-6mmt7y dwelling On the tot with a maximum footprint of 28 feet by 40[eta for the main stmennn,and a maximum Pregis footprint of 22 feet by 22 fed,which garage sballbe limited to one story. Thee&ball be m+living space above the 8u�e 3. All construction dQ be in conformity with all®ov®mtmtal permiting and in conformance with the state building code and the City of Salem Zoning Ordfoanct. 4. Francullo"reduce ceiling heights to eight feet and shall construct a roof with a pitch of 6 over 1. S. Francullo shall take all reasonably necetury steps to assure that waler runoff toward plaintiffs'properties will he abated, 6. Frasoillo will plant mature shrubs along the fence betwom Lot 328 property.and 42 Ravam Avenu%as well landsnpiog of the hiss yard facing Harr It, Avenue. The parties state that they bwe bum mepremded by counsel regarding the provisions Of e this agreement and understand the cootaft A,ouaocwa veaaea .ROTA"AT uw . h we BOOK STPM eaVQYK M e,e,e pre f3MWe race Tz6. ae6 eevd 69 Et ani 8002/At/EO Sired and sealed on the dote Seat Written above City of Salem Zoning Hoard of Appeals Patricia A. Pitreau BY it$attomey. BY bar attorney. Eliz 3 W - 9 . �Solicitar � 93 W tree � F. amino � Salem,MA 0197 BW#162683 0 I 978-619-5631 ALMANDER ac FE0 One Scbool Steeat Zcfm 01913 Blaaehe E Funcoo HYher attoeaty, reau 18 Barcelataa Avc0c Salem,MA 01970 S 14S Avnnne Salmi.MA 01970, Blanebe E.Francao 21 Barttelona Avesme Salem.MA 01970 +a kava a t.arr are aogp�OTiLT I e<a'DrY.W.uu e00/l00® - •• - ••� 6906 iz6 8L6 xea 60ft an.c BOOZ/at/EO r , �J ZONING BOARD OF APPEAL PETITION FORM CITY OF SALEM, MASSACHUSETTS ZONING BOARD OF APPEAL . 120 WASHINGTON STF'ET,3aD FLOUR — ��,: SALEM,bL\SS.ACHUtiETTS 01970 m Amy Lash,Staff Planner Thomas St.Pierre,Building Inspector - �- t.978-619-5685/f.978-740-0404 t.978-619-5641/f 978-740-9846cr �^ CD,- TO D- TO THE BOARD OF APPEAL: 3 lm- The n- The Undersigned represent that he/she is/are the owners of a certain parcel of land located at N r1l.3. Address: 21 Barcelona Avenue Zoning District: R1 r An application is being submitted to the Board of Appeal for the following reason(s): This statement must describe what you propose to build, the dimensions, the zone property is in, and the zoning requirements. Example: I am proposing to construct a 10'x 10'one story addition to my home located at 3 Salem Lane, in the R-2 Zoning District. The Zoning Ordinance requires the minimum depth of the rear yard to be 30 feet. The current depth of my rear yard is 32 feet; the proposed addition would reduce the depth of the rear yard to 22 feet. Petitioner is proposing to build a single family house in an R-1 District. The Zoning requirement in an p R1 District requires the lot to have 15,000 square feet of area and 100'feet of lot width. The registerefi lot of land located at 21 Barcelona Avenue contains approximately 7,593 square feet of area and has p a lot width of approximately 53'feet. p For this reason 1 am requesting: (+)Variance(s)from provisions of Section 6-4 of the Zoning Ordinance,specifically from Minimum lot size and minimum lot width (i.e. minimum depth ofrear yard). What is allowed is 15,000 s.f. of area and 100 feet of lot width (ft?sq ft?stories? %?), and what 1 am proposing is 7493 s.f. of area and 53 feet of lot width (ft?sq fi?stories? M?). O A Special Permit under Section of the Zoning Ordinance in order to (+)Appeal of the Decision of the Building Inspector(described below): Direct Appeal The Current Use of the Property Is: Are the lot dimensions included on the plan? (example: Two Family Home) Vacant lot (+)Yes O No n/a because ' The Undersigned hereby petitions the Board of Appeal to vary the terms of the Salem Zoning Ordinance and allow the project to be constructed as per the plans submitted,as the enforcement of said Zoning By-Laws would involve practical difficulty or unnecessary hardship to the Undersigned and relief may be granted without substantially - derogating from the intent and purpose of the Zoning Ordinance. _ r ZONING BOARD OF APPEAL PETITION FORM The following written statement has been submitted with this application: (+)For all Variance requests a written Statement of Hardship demonstrating the following must be attached: a) Special conditions and circumstances that especially affect the land,building,or structure involved, generally not affecting other lands,buildings,and structures in the same district; b) Literal enforcement of the provisions of the Ordinance would involved substantial hardship to the applicant;and c) Desirable relief may be granted without substantial detriment to the public good,and without nullifying or substantially derogating from the intent of the district or the purpose of the ordinance.. ( )For all Special Permit requests a Statement of Grounds must be attached. An application for a special permit for a nonconforming use or structure shall include a statement demonstrating how the proposed change shall not be substantially more detrimental than the existing nonconforming use to the neighborhood in accordance with Art. V, § 5-3. Such a statement should include reference to the following criteria: a) Social,economic,or community needs served by the proposal; b) Traffic flow and safety,including parking and loading; c) Adequacy of utilities and other public services; d) Impacts on the natural environment, including drainage; e) Neighborhood character;and f) Potential fiscal impact, including impact on City tax base and employment. Previous applications to the Board of Appeals involving this property have been submitted with this petition form. The Building Commissioner can provide documentation ofprevious applications to the petitioner or his representative. If different than petitioner: Petitioner: Patrick Chasse Property Owner: Blanche Francullo Address: 14 Cleveland Street Address: 19 Barcelona Avenue Tel one: 78-741-8957 Telephone: 978-745-2272 Sijnature Signature(Attached consent letter is also acceptable) 2/26/2008 2/26/2008 Date Date Ifdijjerent than petitioner: A TRUE Representative: Stephen P. Lovely, Esq. ATTEST Address: 14 Story Street Salem, MA Teleph 978-745-8274 Sign i e 2/26 008 Date DATE SUBMITTED TO BOARArPF CITY CLERK FEB 2 6 20ud This original application must be filed with the City Clerk. DEPT.Of PLANNING tL COMMUNITY DEVELOPMENT r l Salem Board of Appeal 120 Washington Street Salem, Massachusetts 01970 August 8, 2007 To the Board of Appeal; I, Blanche Francullo, am the owner of the lot located at 21 Barcelona Avenue in Salem. I hereby consent to the petition presented to the Board of Appeal by Patrick Chasse. { Thank you for your consideration. lanche Francullo Stephen P. Lovely, Attorney at Law 14 Story Street Salem, Massachusetts 01970-2820 Telephone 978-745-8274 Fax 978-745-6573 stephen.lovely@verizon.net March 18, 2008 Clerk's Office Land Court Department 226 Causeway Street Boston, Massachusetts 02114 RE: MISCELLANEOUS CASE NO. 05 MISC 307759 (CWT) To the Clerk of the Above Named Court: Please find the motion for stay of an order of the Court pertaining to the above captioned matter: If you have any questions, feel free to contact me. Thank you. Ve truly yours, Ste en Lovely, Esq. 14 ry Street Salem, Massachusetts 01970 BBO #560533 978-745-8274 COMMONWEALTH OF MASSACHUSETTS APPEALS COURT CLERK'S OFFICE John Adams Courthouse One Pemberton Square, Suite 1200 BOSTON, MASSACHUSETTS 02108-1705 (617) 725-8106 Elizabeth Rennard, Esquire City Hall, Law Department 93 Washington Street Salem, MA 01970 .t RE: No. 2008-P-0379 VICTOR L' ESPERANCE k VS . CITY OF SALEM ZONING BOARD OF APPEALS & another NOTICE OF ENTRY On February 25 , 2008 , the above-referenced case was entered on the docket of:-this; court.:,, The appellant' s brief and appendix must be filed WITHIN FORTY DAYS OF THE ABOVE ENTRY DATE and the appellee' s brief within thirty (30) days after service of the appellant' s brief . All briefs and appendices must comply with the Massachusetts Rules of Appellate Procedure . Counsel are reminded to reproduce the entire trial court docket sheet, the notice of appeal, and all relevant portions of the record below includincr, in civil cases, all necessary transcript pages . Appendix pages must be consecutively numbered and legible . Please advise this office, by return mail, who will appear and argue for (1) the appellant (s) , (2) the appellee (s) , or (3) other parties where applicable . Thank you for your assistance . Ashley' Brown Ahearn, Clerk - Dated: February 25, 2008 To: Leonard F: Femino, Esquire - -- James G ,.. Gilber,t, . Esquire Elizabeth Rennard; Esquirej. Stephen P. Lovely, Esquire John .R: _Ke, i1.ty,; Esquire r Stephen P. Lovely, Attorney at Law 14 Story Street Salem, Massachusetts 01970-2820 Telephone 978-745-8274 Fax 978-745-6573 steph en.lovelAverizon.net March 18, 2008 BY FACSIMILE 978-744-1279 Elizabeth Renard City Solicitor City of Salem 93 Washington Street Salem. Massachusetts 01970 RE: MISCELLANEOUS CASE NO. 05 MISC 307759 (CWT) Dear Attorney Renard: Attached please find a copy of my motion for stay in the above captioned matter that has been filed in the Land Court.. Thank you for your assistance. If you have any questions, feel free to contact me. Thank you. V ry truly yours, St en . Lovely, Esq. I St treet S , Massachusetts 01970 BBO #560533 978-745-8274 i COMMONWEALTH OF MASSACHUSETTS Essex, ss LAND COURT NO. 05 MISC 307759 VICTOR L'ESPERANCE, PLAINTIFF ) vs. ) CITY OF SALEM, BOARD OF APPEAL ) NINA COHEN, RICHARD DIONNE, ) BONNIE BELAIR, EDWARD MORIARITY„ ) and NICHOLAS HELIDES, as Members of the ) Board of Appeals of the City of Salem and Blanche ) Francullo, ) DEFENDANTS ) MOTION BY THE DEFENDANT, BLANCHE E. FRANCULLO, TO STAY AN ORDER OF THE COURT REMANDING THE SALEM BOARD OF APPEAL DECISION OF MARCH 2,2005 TO THE SALEM BOARD OF APPEAL Now comes the Defendant in the above-entitled matter and, in accordance with the provisions of Rule 6 of the Massachusetts Rules of Appellate Procedure prays that this Honorable Court grant a stay, without bond, of the Order of the Court remanding the Salem Board of Appeal decision of March 2, 2005 to the Salem Board of Appeal for the purpose of revoking the building permit issued by the building inspector. As reasons therefore the Defendant states; a. That the Salem Board of Appeal will hear a petition for variances affecting the locus subject to said building permit on March 19, 2008. b. The Defendant has reached an agreement with the Plaintiff, Victor L'Esperance, in the above captioned case wherein Victor L'Esperance will support the requested petition for variances by supporting the construction of a single family home on the lot at the locus as proposed by the Defendant. c. The Defendant will be financially impacted by the prospective order for removal of the existing foundation that was constructed in good faith pursuant to the building permit granted by the city of Salem while her appeal is pending. d. The Defendant will not perform any construction under this building permit until all matters have been resolved. e. Defendant asks that there be no bond as there are no financial interests at stake belonging to the Plaintiff that warrant the requirement of a bond. Stepe P. L vely Attorney for Blanche E. Francullo, Defendant 14 Story Street Salem, Massachusetts 01970 BBO#560533 978-745-8274 CERTIFICATE OF SERVICE I, Stephen P. Lovely, certify that I have this 18th day of March 2008 served the foregoing Motion by first class mail to the pro se Plaintiff, Victor L'Esperance 12 Barcelona Avenue Salem, Massachusetts 01970 Signed under penalties of perjury this 18th day of c 2008 Attorney Blanche E. Francullo, Defendant Stephen P. Lovely, Esq. BBO# 560533 14 Story Street Salem, MA 01970 978-745-8274 RECEIVED JAN 0 8 2008 DEPT.OF PLANNING& F� CITY OF SALEM COMMUNITY DEVELOPMENT aa' LEGAL DEPARTMENT 93 WASHINGTON STREET♦ SALEM,MASSACHUSETTS 01970 TEL:978-745-9595 FAY:978-744-1279 KIMBERLEYDRIScOLL ELIZABETH RENNARD,ESQ. JERALD PARISELLA,ESQ. MAYOR QTY SOLICITOR ASST.QTY SOLICITOR To: Thomas St. Pierre, Building Commissioner Amy Lash, ZBA Administrator Zoning Board of Appeal From: Elizabeth Rennard, City Solicitor Re: 21 Barcelona Avenue, Land Court Decision Date: January 4, 2008 Attached please find a copy of the Land Court decision relative to the above-referenced property. As you may recall, two plaintiffs appealed the Zoning Board of Appeal's administrative decision to uphold the Building Commissioner's determination that 21 Barcelona Avenue is a non-conforming, buildable lot. Subsequently, the Solicitor's office was authorized to settle the matter with the plaintiffs and did come to an agreement with one of the plaintiffs, Patricia Pitreau, to allow for the construction of a dwelling on 21 Barcelona Avenue. However, the second plaintiff, Victor L'Esperance, chose to await the decision of the Land Court. As you will note from,the Court's decision, the Court determined that 21 Barcelona is not a non-conforming, buildable lot, but merged with 19 Barcelona Avenue. As such, the Court has remanded the matter to the Zoning Board of Appeal with instructions to direct the Building Inspector to revoke the permit to construct a single family dwelling on Lot 328 (21 Barcelona Avenue). Please feel free to contact me if you have any questions. I will, of course, notify you if the property owner appeals the court's decision. J C 1 (ge COMMONWEALTH OF MASSACHUSETTS i LAND COURT DEPARTMENT OF THE TRIAL COURT ESSEX, ss. MISCELLANEOUS CASE NO. 307759 (CWT) VICTOR L'ESPERANCE, ) Plaintiff ) V. ) NINA COHEN, RICHARD DIONNE, ) BONNIE BELAIR, EDWARD ) MORIARTY and NICHOLAS HELIDES, ) as they are members of the City of Salem ) Board of Appeals, and ) BLANCHE E.FRANCULLO, ) Defendants ) ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT This action, filed on March 22, 2005 by Victor L'Esperance (the "plaintiff'), is an appeal pursuant to G.L. c. 40A, § 17 from an administrative decision of the City of Salem Board of Appeals (the"ZBA")'. The challenged decision, dated and filed with the City Clerk on March 2, 2005, upheld the building inspector's decision that 21 Barcellona Avenue 2, owned by Blanche E. Francullo (the"defendant"), is a non-conforming, buildable lot. An appeal was also brought pursuant to G.L. c. 40A, § 17 by plaintiff s neighbor, Patricia A. Pitreau ("Pitreau"), in a related Elizabeth Rennard,Esq.,City Solicitor for the City of Salem,filed an appearance on behalf of the ZBA,but the ZBA did not take any further part in the proceedings. Z The proper spelling of the name Barcelona includes only one'T" However,in the instant action,the name appears on all recorded plans as "Barcellona". The court,therefore,will use this spelling throughout its Decision,thus conforming with the ancient adage stating"be consistent,even if you're wrong." 1 but unconsolidated action (Misc. Case No. 320360) which has since been reported settled. The plaintiff in the current action seeks a ruling from the court that the ZBA's decision was error as a matter of law and fact and exceeded its authority. The property at issue is located at 21 Barcellona Avenue in Salem, Massachusetts and appears as Lot 328 ("Lot 328") on Land Court Plan 11802E Sheet 2, a copy of which is attached. After the building inspector issued a decision on February 27, 2004 that Lot 328 is buildable, and subsequently issued a building permit on December 22, 2004, Patricia Pitreau of 18 Barcellona Avenue and several others filed a petition with the ZBA on February 4, 2005 seeking an administrative appeal of the building inspector's decision that Lot 328 is a buildable lot. The ZBA denied this appeal in a March 2, 2005 decision and upheld the building inspector's finding. Subsequently,plaintiff Victor L'Esperance brought the current action, known as Misc. Case No. 307759, appealing the ZBA's decision. Pitreau appealed the same decision to the Essex Superior Court.3 While the plaintiff's action, Misc. Case No. 307759 was pending before this court, a second, related action(Misc. Case No. 320360) also came before the court. The genesis of this action was that, on June 22, 2005,Pitreau requested in writing that the building inspector issue a Cease and Desist Order regarding construction of a house on Lot 328. When this request was subsequently denied, Pitreau filed an appeal with the ZBA which was ultimately denied in an August 22, 2005 decision. Pitreau appealed this decision to the Essex Superior Court4 and the case was transferred to the Land Court on March 13, 2006 and became Misc. Case No. 320360. The two actions are related but unconsolidated, appealing two different ZBA decisions. It is important to note that today, only the action brought by plaintiff L'Esperance (Misc. Case No. s Pitreau,et al v Cohen, et al,Civil Action No. 2005-0381. °Pitreau,et al v Cohen,et al, Civil Action No. 2005-1567. 2 r — 307759) is before the court. While Pitreau will be mentioned throughout the Decision in order to disclose all relevant facts, only the facts and issues pertaining to plaintiff Victor L'Esperance will be addressed, as Pitreau's action has settled and is no longer pending before this court. The plaintiff filed a Motion for Summary Judgment on September 25, 2006, accompanied by a memorandum in support thereof, a concise statement of material facts, a statement of legal elements, and an appendix containing affidavits by Patricia A. Pitreau and Leonard A. Femino, Esquire. On October 13, 2006, defendant filed an opposition to plaintiff's motion for summary judgment and a memorandum in support thereof. In addition, on September 27, 2006, defendant Blanche Francullo filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction, and a memorandum in support thereof. On October 16, 2006, plaintiff filed an opposition to defendant's motion to dismiss, along with a motion to strike certain documents included in the appendix to defendant's motion to dismiss. The parties argued the summary judgment motion and the motion to dismiss before the court(Trombly, J.) on October 23, 2006, at which time the matters were taken under advisement. Based on the record before it, the court finds the following facts are not in dispute and are established for the purpose of trial or further proceedings which may become necessary in this matter. Mass. R. Civ. P. 56(d): 1. Plaintiff Victor L'Esperance resides at 12 Barcellona Avenue in Salem, Massachusetts. 2. Defendant Blanche E. Francullo resides at 19 Barcellona Avenue in Salem, Massachusetts. Lot History 3. On or about May 8, 1948, Michael Francullo, the now deceased husband of Blanche E. Francullo, purchased land comprised of seven contiguous e 3 lots on what is now Barcellona Avenue, Ravenna Avenue and Savona Street in Salem, Massachusetts, being lots numbered numbered 325, 326, 327, 328, 329 and 330 as shown on Land Court Plan number 11802E, Sheet 2, drawn by Thomas A. Appleton, Civil Engineer and dated December 6, 1928 (hereinafter referred to as the"Plan"). 4. On December 2, 1959, Michael Francullo conveyed lots 325, 326 and 327 to himself and the defendant. These three lots comprise what is known as and numbered 19 Barcellona Avenue and have a combined area of 17,226 square feet of land. A house was built on the parcel in the 1950's by the defendant. 19 Barcellona Avenue has always been a legally buildable lot. 5. On June 14, 1974, Michael A. Francullo conveyed lots 329 and 330, as shown on the Plan, to Kevin L. Vallieri. These lots comprise the parcel known as and numbered 42 Revenna Avenue, and have a combined area of 13,200 square feet. 6. Also on June 14, 1974, Michael A. Francullo conveyed lot 328 and lot 360, as shown on the Plan, to himself and the defendant. 7. Lot 328, the subject of the dispute in this action, is located at 21 Barcellona Avenue and contains approximately 7,493 square feet. This land remains undeveloped. 8. On November 10, 1978, the Francullos conveyed lot 360, as shown on the Plan, to Karin L. DiAntonio and Francis DiAntonio. 9. Since June 14, 1974, the Francullos have held in common ownership lots 325, 326, 327 and 328. 4 10. The aforementioned four lots are located in the R-1 zoning district in the City of Salem. 11. In July of 1969, the minimum required lot area for a buildable lot in the R-I zoning district was 7,000 square feet. 12. In April of 1977, the minimum requited area for a buildable lot in the R-1 zoning district was increased to 15,000 square feet. Relevant Decisions and Appeals 13. On or about February 27, 2004, the building inspector issued a statement determining that Lot 328 is a grandfathered,buildable lot. 14. On or about December 22, 2004, the building inspector issued a building permit for the construction of a single family house on Lot 328. 15. On or about February 4, 2005, Pitreau and others filed a petition seeking an administrative appeal of the building inspector's ruling that Lot 328 is a buildable lot. The plaintiff Victor L'Esperance was not a party to this appeal. 16. After a hearing was held on February 16, 2005,the Board of Appeals filed a Decision with the Salem City Clerk's Office on March 2, 2005, upholding the building inspector's decision that Lot 328 is a buildable lot. 17. Shortly thereafter, Pitreau and neighbor Jane M. Diamont filed a complaint in the Essex Superior Court for judicial review of the ZBA's decision.5 The case was remanded to the ZBA on April 20, 2005. Pitreau.et al v. Cohen, et al,Civil Action No. 2005-03813. 5 18. On or about June 22, 2005, Pitreau sent a letter to the building inspector requesting that he issue a Cease and Desist Order to stop the construction of a house on Lot 328. 19. On or about July 6, 2005, the building inspector denied Pitreau's enforcement request. 20. On or about July 25, 2005, Pitreau appealed to the ZBA the building inspector's decision not to issue a cease and desist order on the building permit. 21. On or about August 9, 2005, the Salem ZBA held a public hearing on the matter, at which time they upheld the building inspector's decision. The ZBA filed their decision with the City Clerk's Office on August 22, 2005. Pitreau appealed this decision to the Essex Superior Court. This case was transferred to the Land Court on March 13, 2006, became Land Court Case No. 320360, and has now been reported settled. 22. The Salem Zoning Ordinance Article VIII ("Article VIII"), Section 8-2(1) (`Section 8-2(1)") states: Any increase in area, frontage, width, yard or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which, at the time of recording or endorsement, whichever occurs sooner, was not held in common ownership with any adjoining land, conformed to then-existing requirements and had less than the proposed requirement but at least five thousand (5,000) square feet of area and fifty(50) feet of frontage. The provisions of this section shall not be construed to prohibit a lot being built upon if, at the time of the building, building upon such lot is not prohibited by the Salem Zoning Ordinance. 6 G.L. c. 40, § 6, ¶4 is almost identical to the language of Section 8- 2(1). 23, Article VIII Section 8-2(3) states the following: If(2) or more lots, or combinations of lots and portions of lots, with continuous frontage in single ownership are of record for more than five (5) years at the time of adoption of this ordinance, and if all or part of the lots do not meet the requirements for lot width and area as established by this ordinance, the lands involved shall be considered to be an undivided parcel for the purpose of this ordinance, and no portion of said parcel shall be used or sold which does not meet lot width and area requirements established by this ordinance, nor shall any division of the parcel be made which leaves remaining any lot with width or area below the requirements stated in this ordinance. The court will fust address the grounds on which the defendant seeks to dismiss the plaintiff's complaint, all of which are incorporated into her opposition to plaintiffs motion for summary judgment. Defendant also filed a separate Motion to Dismiss for Lack of Subject Matter Jurisdiction subsequent to filing her opposition to plaintiffs motion for summary judgment. Because the motion for summary judgment and the motion to dismiss were argued before the court at the same time, all documents filed in conjunction with these two motions will be considered part of the record for the purposes of this decision. If, after analyzing the relevant facts and the applicable law, the court finds that the complaint should not be dismissed for any of the reasons raised by the defendant, I will then rule on the plaintiff s motion for summary judgment. The defendant contends that the plaintiff s complaint should be dismissed for the following reasons: (1)plaintiff is without standing to bring this action as he is not a"person aggrieved" pursuant to G.L. 40A, §§ 8 and 17; (2) plaintiff failed to exhaust all of his 7 administrative remedies prior to bringing this action; and (3) the administrative appeal to the Salem Zoning.Board of Appeals was not timely filed. As a preliminary matter, the court will first turn its attention to plaintiff's Motion to Strike, in which the plaintiff moves to strike paragraphs six and eight of defendant's affidavit and also Exhibits B and C, all of which are attached to defendant's motion to dismiss. The statements and documents at issue concern two written statements issued by the building inspector on February 27, 2004 and December 15, 2004, reiterating his opinion that 21 Barcellona Avenue is a legal, grandfathered, nonconforming, buildable lot. Both writings are opinions and are not official decisions issued by the building inspector. For this reason, the court hereby allows plaintiffs motion to spike paragraphs six and eight of defendant's affidavit and Exhibits B and C of the appendix to defendant's motion to dismiss. Standing "Only a `person aggrieved' may challenge a decision of a zoning board of appeals." Marashlian v. Zoning Bd of Appeals of NewbLiWort, 421 Mass..7l9, 721 (1996); Circle Lounge& Grille, Inc. v. Bd. of Appeals of Boston, 324 Mass. 427, 430(1949); G. L. c. 40A, §17. A plaintiff is presumed to be a"person aggrieved" if it is a party in interest pursuant to G.L. c. 40A, §1 L6 A presumption of standing is rebuttable. See Watros v. Greater Lynn Mental Health and Retardation Ass'n Inc 421 Mass. 106, 111 (1995). In order for a defendant to rebut the presumption of standing, a defendant is required to offer evidence "warranting a finding contrary to the presumed fact." Standerwick v. Zoning Bd of Appeals of Andover, 447 Mass. 20, 34 (2006), quoting Marinelli v. Bd. of Appeals of Stoughton, 440 Mass. 255, 258 (2003). 6 "Parties in interest"under G.L.c.40A§ 11 is defined as: "[T]he petitioner, abutters,owners of land directly opposite on any public or private street or way,and abutters to the abutters within three hundred feet of the property line of the petitioner as they appear on the most recent applicable tax list...." 8 Once a defendant challenges the plaintiff's standing and offers evidence to support such a challenge, the jurisdictional issue is to be decided on the basis of the evidence with no benefit to the plaintiff from the presumption. See Standerwick, 447 Mass. at 32-33; Denneny v. Zoning Bd. of Appeals of Seekonk, 59 Mass. App. Ct. 208, 212 (2003); Bavernik v. Board of Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992). In addition, "individual... property owners [may] acquire standing by asserting a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest." Harvard Square Defense Fund Inc v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 492-93 (1989). "[A] plaintiff must establish-by direct facts and not by speculative personal opinion - that his injury is special and different from the concerns of the rest of the community." Barvenik, 33 Mass. App. Ct. at 132 (1992). See also Butler v. City of Waltham, 63 Mass. App. Ct. 435, 440 (2005) (noting that the plaintiffs injury flowing from the board's decision must be"special and different from the injury the action will cause to the community at large"). A claim of diminution of property values must be derivative of or related to cognizable interests protected by the applicable zoning scheme. Standerwick,447 Mass. at 31-32; see Tranfaglia v. Building Comm'r of Winchester, 306 Mass. 495, 503-504 (1940). A claim of injury must be based on more than mere speculation. Standerwick, 447 Mass. at 35; Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 335 (1993) (Abrams, J., dissenting). To assert a plausible claim, a"plaintiff must put forth credible evidence to substantiate his allegations."(Emphasis Added). Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721 (1996). "Credible evidence has both a quantitative and a qualitative component .... Quantitatively, the evidence must provide specific factual support for each of the claims of particularized injury the plaintiff has made. Qualitatively, the evidence 9 must be of a type on which a reasonable person could rely to conclude that the claimed injury likelywill flow from the board's action. Conjecture,onjecture, personal opinion, and hypothesis are therefore insufficient."Butler, 63 Mass. App. Ct. at 441. In the present case, the defendant's challenge to the plaintiff s standing lacks evidentiary support. Absent such evidence, the plaintiff s rebuttable presumption of aggrievement is maintained and he is not required to put forth credible evidence to substantiate his claims. The defendant contests the plaintiff's standing on the grounds that he has not alleged any facts which would warrant a finding of aggrievement. This argument, however, is misplaced. A plaintiff enjoys a rebuttable presumption of standing if he/she is a"party in interest" as defined by G.L. c. 40A, §11, regardless of whether he/she has put forth any evidence of aggreivment. In the case at bar, plaintiff is a.party in interest because he is an abutter to the property:at issue, and he therefore enjoys a rebuttable presumption of standing by virtue of this fact. While defendant contends that plaintiff has not alleged any facts that would warrant a finding.of aggreevment,the plaintiff is not required to do so unless and until the defendant offers evidence"warranting a finding.contrary to the presumed fact." Standerwick, 447 Mass. at 34. A mere challenge to the plaintiff's standing is not enough absent an offer of evidence to support the challenge. Bavernik, 33 Mass. App. Ct. at 131-132. While defendant offers her own sworn affidavit to support her challenge, a careful reading of this affidavit reveals that it does nothing more than recite the relevant facts of the case and allege that plaintiff has failed to exhaust all administrative remedies prior to bringing this action. This cannot be considered evidence rebutting the plaintiff's presumption of aggrievement absent a showing of specific evidence, beyond merely raising the issue, that the plaintiff is not aggrieved by the board's decision. As it 10 i stands, the plaintiff maintains his rebuttable presumption of aggreivement and the complaint will not be dismissed on these grounds. Plaintiff Has Properly Brought his Complaint Before this Court In her opposition to plaintiff's motion for summary judgment, defendant also moves to dismiss the complaint, alleging that (1) plaintiff failed to exhaust all of his administrative remedies prior to bringing this action and (2) the appeal was not timely filed with the ZBA. In order to understand the issue before the court, we must first identify exactly what is being appealed pursuant to 40A, § 17. It is important to recognize that a board of appeals "cannot grant unrequested relief." Elio v Zoning Bd. of Appeals of Barnstable 55 Mass. App. Ct. 424, 429 (2002), citing DiGiovanni v Bd. of Anneals of Rockport, 19 Mass. App. Ct. 339, 345 (1985). The administrative appeal, filed by Patricia Pitreau and several other neighbors on Feburary 4, 2005, states in relevant part that it is an"[aldministrative [a]ppeal from the decision of the Building Inspector's ruling on lot 328, 21 Barcelona Avenue is a buildable lot." The building inspector's determination that Lot 328 is a buildable lot was issued on February 27, 2004. The defendant is correct in asserting that nowhere in the administrative appeal of February 4, 2005 do the petitioners make mention of the building permit which was issued on December 22, 2004. However, inherent in this appeal as to whether Lot 328 is a buildable lot is also an appeal as to whether a building permit was properly issued for Lot 328. It follows then, that both issues are appropriately before the court today. The court will next address the fact that the plaintiff himself was not a party to the administrative appeal filed on February 4, 2005. A party aggrieved by an administrative official's decision has the "right to request the officer charged with enforcing local zoning to 11 enforce the by-law under G.L. 40A, § 7, and, if the requesting party is aggrieved by the inspector's decision, a right to seek administrative relief from the board under G.L. c. 40A, §§ 8 and 15, and after exhausting administrative remedies, a right to obtain judicial review pursuant to G.L. c. 40A, § 17." Fitch v. Bd. of Appeals of Concord, 55 Mass. App. Ct. 748, 752 (2002); Vokes v. Avery W. Lovell, Inc., 18 Mass. App. Ct. 471, 482=483 (1984); Neuhaus v. Bldg. Inspector of Marlborough, 11 Mass. App. Ct. 230, 235 (1981). G.L. c. 40A, § 7 provides in relevant part: "if the officer or board charged with enforcement of zoning ordinances or by-laws is requested in writing to enforce such ordinances or by-laws against any person allegedly in violation of the same and such officer or board declines to act, he shall notify, in writing, the party requesting such enforcement of any action or , refusal to act, and the reasons therefore, within fourteen days of receipt of such request...No action, suit or proceeding shall be maintained in any court, nor any administrative or other action taken...except in accordance with the provisions of this section, section eight and section seventeen..." G.L. c 40A, § 8 states in relevant part that "an appeal to the permit granting authority as the zoning ordinance or by-law may provide,may be taken by any person aggrieved by reason of his inability to obtain a permit or enforcement action from any administrative officer under the provisions of this chapter...". It is clear that the plaintiff was not a party to the administrative appeal filed on February 4, 2005 by Pitreau and other neighbors to Lot 328, as illustrated by the absence of plaintiff's signature from the petition. Despite this fact, defendant is incorrect in her assertion that the plaintiff is precluded from bringing this action because he was not a party to the administrative appeal. Quite to the contrary, G.L. c. 40A, § 17 specifically states that"any person aggrieved by a decision of the board of appeals ... whether or not previously a party to the proceeding...may bring an appeal to the land court ... by bringing an action within twenty days after the decision h 12 has been filed in the office of the city or town clerk" (Emphasis Added). Thus, the plaintiff's absence from any proceeding prior to bringing this action is irrelevant because it is not a prerequisite to an appeal brought pursuant to G.L. c. 40A, § 17. The defendant also contends that the appeal was never properly before the ZBA because petitioners failed to exhaust all administrative remedies pursuant to G.L. c. 40A, § 7 prior to bringing the appeal and because it was not brought before the ZBA in a timely manner. The court need not address whether or not the petition for an administrative appeal was properly before the ZBA. The fact is that the ZBA held a hearing on the petition on February 16, 2005 and issued a decision on March 2, 2005 upholding the building inspector's decision that 21 Barcellona Avenue is a buildable lot. The ZBA did not dismiss the petition on procedural grounds but chose to hold a hearing and issue a formal decision, after which the plaintiff became a"person aggrieved." By virtue of this status, plaintiff is within his rights in appealing the ZBA's decision pursuant to G.L. c. 40A, § 17, despite procedural flaws that may have existed when the initial petition was filed on February 4, 2005. The case, therefore, will not be dismissed on these grounds. The court will now turn its attention to the merits of the case and the issues raised in the plaintiff s motion for summary judgment, namely, whether Lot 328 and 19 Barcellona Avenue (comprised of Lots 325, 326 and 327) have merged. Plaintiffs Motion for Summary Judgment Summary judgment is granted when, after reviewing the record taken as a whole, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Cassesso v. Comm'r of Corr., 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes,-369 Mass. 550, 553 (1976). Whether a fact is material or not is 13 determined by the substantive law, and "[a]n adverse party may not manufacture disputes by conclusory factual assertions."Ng. Bros, 436 Mass. 638, 648 (2002). The burden of proving both the absence of a genuinely contested issue of material fact and entitlement to judgment as a matter of law is on the moving party. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). This burden may also be met by submitting affirmative evidence that negates an essential element of the opponent's case, or demonstrating that the opposing party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corn , 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Coro., 410 Mass. 706, 716 (1991). A fact is genuinely in dispute only if"the evidence is such that a reasonable jury could return a verdict for the non-moving party."Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Material facts are those that might affect the outcome of the suit under the governing law. Id. Once facts have been established, the inferences drawn from those facts must be viewed in the light most favorable to the party opposing summary judgment. Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982). When a properly supported summary judgment motion has been made, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits, or as otherwise provided in [Rule 56],must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." Mass. R. Civ. P. 56(e). See also Land Court Rule 4; Pederson, 404 Mass. at 14, 17 (1989). Summary judgment, when appropriate, maybe rendered against the moving party."Mass. R. Civ. P. 56(c). 14 Discussion The"merger doctrine" requires that"adjacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities with the dimensional requirements of the zoning by-law or ordinance." Seltzer v. Bd. of Appeals of Orleans, 24 Mass. App. Ct. 521, 522 (1987). Common ownership is determined by examining the deeds recorded most closely in time prior to the effective date of the zoning change which created the nonconformity. Adamowicz v. Ipswich, 395 Mass. 757, 762 (1985). The doctrine is reflected in G.L. 40A, § 6, which states in relevant part that Any increase in area, frontage, width, yard or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirements but at least five thousand square feet of area and fifty feet of frontage. The language of Salem Zoning Ordinance Article VIII, Section 8-2(1) is nearly identical to the foregoing statute. Article VIII, Section 8-2(3) addresses contiguous lots held in common ownership which have been in existence for more than five gears, stating that if all orpartof the lots are-nonconformine,theland shall be considered an undivided-parcel;and-shall-not be used or sold-i£it does not meet width and area requirements established by the ordinance(Emphasis Added). Each city and town has the right,under G.L. c. 40A, to adopt its own ordinance or bylaw to deal with zoning nonconformities. "[W]hatever harshness might result from a particular town by-law's strict regulation of changes in nonconforming uses is justified by policy considerations which generally favor their eventual elimination." Blasco v Bd. of Appeals of Winchendon, 31 Mass. App. Ct. 32, 39 (1991). "A basic purpose of the zoning laws is to `foster the creation of 15 conforming lots."' Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 736 (1999), quoting Murphy v. Kotlik 34 Mass. App. Ct. 410, 414 n. 7 (1993). It follows, then, that the purpose of the merger doctrine is to "preclude[s] an owner from availing himself of a nonconforming exemption unless he includes P his adjacent and in order to minimize the nonconformity." Asack, 47 Mass, App. Ct. at 736. The rationale behind the doctrine is that such a landowner has the power to comply with zoning requirements by"adding such land to the substandard lot,"thus precluding him from reaping the benefits of the exemption unless he uses such adjacent land to minimize the nonconformity. Sorenti v. Bd of Appeals of Wellesley, 345 Mass. 348, 353 (1963). Conformity, then, is achieved by treating_the.confomi ng-lot-as-servient to themonconforming lot, in-order to achieve_compliance,with-the-zoning-ordinance—DiCicco v. Berwick, 27 Mass. App. Ct. 312, 314 (1989). By-law provisions,however, can prevent the application of the merger doctrine where such provisions are"intended to avoid the application of the [merger doctrine]." Seltzer, 24 Mass. App. Ct. at 522. See Lee v. Bd. of Appeals of Harwich, 11 Mass. App. Ct. 148, 152-153 (1981); Clarke v. Bd. of Appeals ofNahant, 338 Mass. 473, 475-476 (1959). Additionally, adjoining non_confonning-parcels�held in common-ownership-may-avoid mergez'if tlieymaintain ,ma:`s._e_parateidentity�at all_relevant-times. Asack, 47 Mass. App. Cf. at 736, quoting Lindsay v. Bd. of Appeals of Milton, 362 Mass. 126, 132 (1972). Plaintiff contends that G.L. c. 40A, § 6 and Article VIII, Section 8-2(l) and(3) of the Salem Zoning Ordinance prohibit the defendant from constructing a house on Lot 328, a pre- existing nonconforming lot, because said lot has merged with several adjacent lots also owned by the defendant. Plaintiff asserts that Lot 328 and the lots comprising 19 Barcellona Avenue were s, 16 held in common ownership in 1977 when Lot 328 became nonconforming because of a zoning amendment, thereby stripping it of its status as a separate, buildable lot and merging it with the adjoining, conforming lots. The defendant, on the other hand, argues that the merger doctrine applies only where both adjoining lots are nonconforming. She urges the court to look beyond the literal language of the statute and to focus instead on the purpose of the doctrine, which is to prevent a landowner from creating a dimensional nonconformity if he could have used adjoining land to avoid or diminish the nonconformity. Defendant contends that in the present situation, the purpose of the doctrine would not be served by merging the lots in question because Lot 328 cannot"borrow"land from 19 Barcellona Avenue, a previously-developed, conforming lot. Because the interpretation of G.L. c.40A, § 6 is central to deciding the issue presently before the court, a brief recitation of the basic principles of statutory construction is necessary. "The object of all statutory construction is to ascertain the true intent of the Legislature from the words used." Cham�igny v. Commonwealth, 422 Mass. 249, 251 (1996). A fundamental tenet of statutory interpretation is that a statute's plain meaning is honored if its language is clear and unambiguous, unless a"literal construction would yield an absurd or unworkable result." Commonwealth v. Millican, 449 Mass. 298, 301 (2007); Dept of Community Affairs v. Massachusetts State College Bldg. Auth., 378 Mass. 418, 427 (1979). In the present action, the relevant language of G.L. c.40A, § 6,paragraph 4 is clear and unambiguous on its face, as is its nearly identical counterpart, Article VIII Section 8-2(1) of the Salem Zoning Ordinance, which states that "[a]ny increase in area frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two family residential use which at the time of recording or endorsement...was not held in common ownership with any adjoining land, conformed to then-existing requirements and had less than the proposed requirement but at least five thousand 17 (5,000) square feet of area and fifty(50) feet of frontage" (Emphasis Added). The foregoing provision lacks ambiguity in articulating that a nonconforming lot "which at the time of recording...was not held in common ownership with any adjoining land"does not reap the protections established by the provision. The rationale behind such a provision codifies the longstanding principle that "a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity." Planning Bd. of Norwell v Serena 27 Mass. App. Ct. 689, 690 (1989). Section 8-2(3) is equally clear in stating that contiguous lots held in common ownership, in existence for more than five years, shall be considered an undivided parcel if all or part of the lots are nonconforming. It is undisputed that Lots 325, 326, 327 and 328 have been held in common ownership by the defendant since 1974 and that since 1977, Lot 328 has been a pre-existing, nonconforming lot with an area of 7,493 square feet. The defendant concedes that a literal reading of the statute and the ordinance would warrant a finding that Lot 328 has merged with her adjoining land. She argues, however, that the purpose of the doctrine is not served by this application because she could not possibly have used her adjoining land to diminish Lot 328's nonconformity, as this parcel is a previously developed, conforming lot, with an area of 17,226 square feet. For this reason, she urges the court to read the statute as applying only to nonconforming lots. This court will adhere to the plain meaning of Article VIII Sections 8-2(1) and(3) in making its decision because the language used is clear, lacks ambiguity, and such a literal construction will not"yield an absurd or unworkable result." Commonwealth, 449 Mass. at 301. One sentence in particular lends insight into the intended meaning of the by-law in stating that it applies to a lot "not held in common ownership with any adjoining land"(Emphasis Added). Article III, Section 8-2(1). This court interprets the phrase "any adjoining land" to mean exactly 18 what it says: any adjoining land, whether it be conforming or nonconforming. While the court is unable to find case law which specifically states that the merger doctrine applies to both conforming and nonconforming lots, a careful reading of the language used by other courts in deciding merger-related issues reveals that only one of the contiguous lots at issue must be nonconforming in order"for the doctrine to apply. For instance, the court in Sorenti7 explains the rationale behind the merger doctrine by stating that a landowner who owns adjacent land "has it within his power, by adding such land to the substandard lot, to comply with the (zoning) requirement..." (Emphasis Added). Sorenti, 345 Mass. at 353. The court specifically refers to "the substandard lot" as separate, and perhaps different from the land that may be added to it. Such a distinction indicates the Sorenti court's interpretation that the doctrine applies where at least one substandard lot exists, thereby enabling a landowner to add"adjacent land"to "the substandard lot". It does not, however,require that all land involved be substandard. Such singular phrasing as "the substandard lot," and use of the . broad word"any" in the by-law itself indicates to this court that the merger doctrine was intended to apply to both conforming and nonconforming lots. If not convinced of the court's interpretation of G.L. c. 40A, § 6, paragraph 4 and Article IIII, Section 8-2(1), our decision is further supported by Article III, Section 8-2(3), which requires the merging of two or more contiguous lots if"all or part of the lots"do not meet the dimensional requirements established by the ordinance. As previously stated, "whatever harshness might result from a particular town by-law's strict regulation of changes in nonconforming uses is justified by policy considerations which generally favor their eventual elimination." Blasco, 31 Mass. App. Ct. at 39. The language of the by-law clearly states that either gall or part of the lots"must be nonconforming for merger to occur., Thus, if only one or 345 Mass. 348 (1963). 19 "part" of the lots is nonconforming, as is true in the present case, all contiguous lots are to be considered an undivided parcel. While the defendant asserts that the purpose of the merger doctrine cannot be achieved by such an application, we cannot ignore the plairi, unambiguous meaning of the relevant portions of the Salem Zoning Ordinance or G.L. C. 40A, § 6,paragraph 4. The court, therefore, finds that Lot 328 has merged with the defendant's adjoining land pursuant to G.L. c. 40A, § 6,paragraph 4 and the Salem Zoning Ordinance Article VIII, Section 8-2(1) and(3). Conclusion In accordance with the above, the court finds and rules that the Salem ZBA erred in its March 2, 2005 decision upholding the Building Commissioner's decision that Lot 328 is a buildable lot and his subsequent issuance of a building permit. The court finds that Lot 328 merged with the defendant's adjoining land pursuant to G.L. c. 40A, § 6, paragraph 4 and the Salem Zoning Ordinance Article VIII, Section 8-2(1) and (3) because said land was held in common ownership by the defendant at the time the zoning ordinance was amended in 1977. Given this finding, Lot 328 is not a buildable lot and a building permit should not have issued for the construction of a house on this lot. In accordance with the above, it is hereby ORDERED that Defendant's Motion to Dismiss is DENIED; it is further a ORDERED that Plaintiff's Motion for Summary Judgment is GRANTED. The court hereby remands the ZBA's March 2, 2005 decision to the ZBA with instructions to direct the building inspector to revoke the building permit issued for the construction of a single family house on Lot 328. 20 Judgment to enter accordingly. By the court. (Trombly, J.) L/ Attest: Deborah J. Patterson Recorder Dated: December 31, 2007 ATRUE COPY ATTEST' RECORDER G y 21 80 Mush N59 ';o� .SHEET 2 ;. E. - 361 4Fo � ' i Ch6 Nei� .92_4 0D M. 0 p 6oPo.N , 46 _ D9 N X on � c 0.00 SD.00 Som S0.00 8 k RAVENNA �2J6 �O DnU n&'DD SD"E Aj. Hole 30.00 30oo3 //3/Z8 330. ri e. ,Do i 8"ttl s e`o� 3 328 W _ v JV D 55g rro' �j s 110.86 _,�m C vY N4 - 6�'r \.3 n �00 D9 DDE •' P� uee EET - c; g 99.70x' N S1R b B 44,6- 15211 4D-13246 Ol �lp I i i6 COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT ESSEX, ss. MISCELLANEOUS CASE NO. 307759 (CWT) VICTOR L'ESPERANCE, ) Plaintiff ) NINA COHEN, RICHARD DIONNE, ) BONNIE BELAIR, EDWARD ) MORIARTY and NICHOLAS HELIDES, ) as they are members of the City of Salem ) Board of Appeals, and BLANCHE E. ) FRANCULLO, ) Defendants ) JUDGMENT This case, filed on March 22, 2005 by plaintiff Victor L'Esperance (the"plaintiff'),' is an appeal pursuant to G.L. c. 40A, § 17 from an administrative decision of the City of Salem Board of Appeals (the"ZBA) upholding the building inspector's decision that 21 Barcellona Avenue, owned by Blanche E. Francullo (the"defendant"), is a non-conforming,buildable lot and that a building permit should issue for the construction of a house thereon. Plaintiff filed a Motion for Summary Judgment on September 25, 2006, arguing that the ZBA erred in upholding the building inspector's decision because,pursuant to G.L. c. 40A, § 6 and the corresponding sections of the Salem Zoning Ordinance, Article VIII, Section 8-2(1) and If not specifically defined herein,each term carries the same definition employed in the Decision. (3), Lot 328 merged with 19 Barcellona Avenue, also owned by the defendant, which is a conforming lot consisting of Lots 325, 326 and 327. Plaintiff contends that Lot 328 merged with the adjacent land because all four lots were held in common ownership by the defendant in 1977 when Lot 328 became non-conforming due to a zoning amendment increasing minimum lot size. Defendant, on the other hand, contends that the merger doctrine applies only where both adjoining lots are nonconforming. In her opposition to plaintiff's motion for summary judgment and in a separately filed Motion to Dismiss, the defendant sought to dismiss the action on the grounds that(1)the plaintiff lacks standing, (2) the plaintiff failed to exhaust all administrative remedies prior to bringing this action, and (3)the petition requesting an administrative appeal was not filed in a timely manner. On December 31, 2007, the court(Trombly, J.) issued an Order denying defendant's motion to dismiss and allowing plaintiffs motion for summary judgment, finding and ruling that Lot 328 had merged with 19 Barcellona Avenue,thus rendering it an unbuildable lot. The court, therefore, found that the ZBA erred in upholding the building inspector's decision that Lot 328 is a buildable lot and that the building permit was properly issued. In accordance with the above, it is ORDERED, ADJUDGED and DECLARED that the ZBA erred in its March 2, 2005 decision when it upheld the building inspector's decision that Lot 328 is a buildable lot and that a building permit could issue for construction of a house thereon. It is further ORDERED,ADJUDGED and DECLARED that Lot 328 merged with defendant's adjacent lots, making it unbuildable and precluding the issuance of a building permit for construction of a structure thereon. It is further r. ORDERED, ADJUDGED and DECLARED that the matter is hereby remanded to the ZBA with instructions to direct the building inspector to revoke the building permit issued for the construction of a single family house on Lot 328. By the court. (Trombly, J.) Attest Deborah J. Patterson Recorder ATRU E COPY Dated: December 31, 2007 KTTEST. pECORBE.R