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0 SUMMIT STREET - LOTS - BUILDING INSPECTION „ anvir,� y. L @ ✓ C KEVIN T. DALY LEONARD F. FEMINO ASSISTANT CITY SOLICITOR ��� ASSISTANT CITY SOLICITOR 93 WASHINGTON STREET R!c1'm�+r 93 WASHINGTON STREET AND CITY OF SALEM - MASSACHUSETTS AND ONE CHURCH STREET ONE SCHOOL STREET MICHAEL E. O'B RIEN SALEM, MA 01970 BEVERLY, MA 01915 745-4311 - CITY SOLICITOR 745-4311 745-0500 93 WASHINGTON STREET 921-1990 AND PLEASE REPLY TO ONE CHURCH STREET SI WASHINGTON STREET PLEASE REPLY TO ONE SCHOOL STREET SALEM, MA 01970 745-4311 744-3363 PLEASE REPLY TO 81 WASHINGTON STREET July 20 , 1988 William H. Munroe, Building Inspector City of Salem One Salem Green Salem, Massachusetts 01970 Re: Application to "Grandfather” Parcel of Land Abutting Summit Court, Shown as Lots 2 , 3 , 4 and 5 , on a "Plan of Land, Summit Street, Salem, Mass. " , prepared for Minerva A. Young Dear Mr. Munroe: You have requested my opinion whether or not the above lot qualifies for the exemption afforded in the first sentence of the fourth paragraph of GLc40A §6 as set out in Section VIII (B) ( 1 ) of our zoning ordinance. Please be advised that I have reviewed the material you supplied me and it is my opinion that the lot is not afforded this protection. You indicated to me that you felt that the four ( 4 ) lots could not be combined to meet the 5, 000 square foot minimum requirement. The Supreme Judicial Court has held that adjoining parcels in common ownership must be considered one lot for zoning purposes . I am enclosing a copy of the case of Vassalotti v Board of Appeals of Sudbury 348 Mass 658 (1965 ) which I believe to be dispositive of this question. Accordingly, I have no difficulty accepting the fact that the parcel in question be considered one lot for meeting the 5 , 000 square foot minimum requirement. However, what leads me to the conclusion that the lot is not "grandfathered" is that it fails to meet the 50 foot minimum frontage on an improved street. What constitutes a "street" for purposes of frontage requirements and what constitutes a "lot" for purposes of the grandfather exemption - 2 - J is based upon the specific definitions contained in the zoning ordinance. Admittedly, under the Salem zoning ordinance definitions section (II ) (B) ( 36 ) the word "street" is defined to be a public or private way . . . " and Summit Court is shown on a 1892 recorded plan. However, it is my opinion that the definition of "street" must be read in relation with the definition of "lot" contained in section ( II ) (B) ( 23 ) . This section defines lot as "Such lot shall have frontage on an improved public street . . . " . While a "private way" may qualify as a "public street" for purposes of the zoning ordinance if it is open for public use, I have been provided with no evidence that Summit Court has been open to public use. To the contrary, the assessor' s maps do not even show Summit Court and even the above entitled plan shows portions of the same being used for private parking of motor vehicle and a private garden. The reference to "recording" in the fourth paragraph OF GLc40A §6 means the most recent instrument of record prior to the effective date of the zoning ordinance of August 27 , 1965 . In the instant case this is the November 29 , 1958 deed recorded with Essex South District Registry of Deeds. It is my opinion that while the lot in question contained the minimum 5 , 000 square foot area it did not have at least 50 feet of frontage on an improved public street at the time of "recording" . ery tryly yours l / ' ichael E. O'Brien City Solicitor MEO/jp cc: Ethan Schaff, Esq. Enclosure f � - i-, 348 Mass. 658 348 Mass. 658 659 vassalotti v. Board of Appeals of Sudbury. Vassalotti v. Board of Appeals of Sudbury. to in the aggregate as the locus),' eachlabout twenty-five feet in width and 100 feet in depth,were conveyed to *one McPhee in 1932 by the common owner of all the lots shown a THOMAS VASSALOTTI vs. BOARD OF APPEALS OF SUDBURY. on the subdivision plan. The deed was recorded. : "Since - 1932, neither . . . McPhee nor . . . [McPheels] sole sue- Middlesex. February 4, 1965.—March 3, 1965. cessor in title : . . [Vassalotti, has] ever owned any . . . Present: WILKINS, C.J., SPALDINu, CUTTER, SPMGEL, & REARDON, JJ. interest',in any lot contiguous to any part of the" locus: Zoning, "Recorded" lot, Variance Vassalotti applied in 1962 to the Sudbury board-of ap- peals for a variance for the locus because it "did not com- A landowner entitled as of.right under the local zoning by-law'and'the ply with the area [40,000 square feet] and-frontage :.[180 zoning statute to make a certain use of his land was not entitled to a feet] requirements of the,[Sudbury] zoning by-law." The zoning variance allowing such use since he did not need s variance building proposed by Vassalotti would comply with the side therefor. [662] Where it appeared that prior to the.adoption of a-zoning by-law by a yard, setbacki and rear yard-requirements of the by-law.' - town a subdivision plan showing many lots was recorded et the registry The board on August 10, 1962, denied a variance.. Vassar. of deeds and three of the lots, contiguous and,each having an arca of lotti then filed a ,bill inequity (see G. L. c. 40A §.21; as about 2500 square;feet and a street frontage of 'about 25 feet,,were - conveyed by a single:deed;that neither the grantee in such,deed.nor a amended) in the Superior.Court, praying that the board's. subsequent grantee of ,the three- lots ever owned any land adjacent decision be annulled and that theboard�be.,ordered to "af-. .thereto, that the zoning by-law, although requiring for lots in. a,resi- _ - firm the 11se. of the . �[loCns] for a single family. dwell- �1 dential district a:minimnm area of 40,000 square feet and a minimum - ' street frontage of 180 feet,-allowed the erection of a dwellpmg on a lot he ease- facts'-. The trial as eedeclinpo to annul or tmod fof g the having less ares and frontage if the lot was "shown on,a planordeed judge - y recorded" at the registry, and;tha6.tbe subsequent grantee of the three _ board's decisionA final decree was entered accordingly. lots sought to erect one dwelling on the three lots treated as a single lot, -•` he-was entitled as of right so to do under the'eaemption in the zoning Vassalotti appealed. by-law and under-.13. L. a 40A, § 6A, as through St. 1961, Vassalotti seems no longer to seek, if indeed he ever c. 435, §1. [881;882] sought, a variance in the usual sense of that term. ' In- ' Bim IN Fqurry.,filed in the Superior Court on August 29, i On the original exhibit from which the attached sketch plan was prepared, 4 1962- the external boundaries of the locus were shown by a heavier line than.the E other,lot linea. .On the original recorded plan allthe lot lines were,alike. Thea a ealed from a final decree entered after 1! 1)11 2 I 1939,a comprehensive zoning by-law became effective inL Sudbury. Sec-. hearing by Beciudreate,.J, tloa'17,in effect in 196E and`now, reads in part, "Except as hereinafter pro- JL .. Eugene. Jri.. 'r09LgaS for the plaintiff. _ - vided,'no'dwelling house and'accessory building shall be erected in a [atingle r _ [r]esidence [d]istriet unless the'area and street frontage of theJot . . . shall - Alan M. Winsor, Town Counsel, for the defendant, sub- conform to the following requirements: In [r]esidence [stones 'A' 1, 'A' 2, and `A''--3, the minimum area of the lot shall be 40,000 square feet, and the mitted abrief-. .. - - minimum frontage of the lot onany .street or way shall be 180 feet . . .. .of - -[A] A dwelling houseandsay'accessory building may be erected on allot CUTTER, J. A subdivision plan of a substantial tract in any residence district,the arca and street frontage of which is less than land in Sudbury was filed in the registry Of deeds in 1927. that prescribed L provided; that such lot is shown on L a plan or deed A sketch of a part of Block B, one of overtwentyblocks of stree f frontages : , : [in the r]of aretry t [steeds and that the miw re r area and y street`frontages-of said lot are et least equal to those which were required by lots appearing on that subdivision plan,is reproduced here- the provisions of this section in force on the date of the . [recording] of said plan; and that there shall be a full compliance with all theLprovisiom of with (omitting some detailed measurements which do not these . . . [b]y-laws relative to set backs and yards . . ." (emphasis sup- affect the present problem). Lots 11, 12, and 13 (referred plied). The letter [A] inserted in the above quotation is inserted for con, venient reference to the next succeeding sentence. 1, t 660 348 Mass. 658 348 Mass. 658 661 Vassalotti v. Board of Appeals of Sudbury. Vassalotti v. Board of Appeals of Sudbury. as We think that the board incorrectly assumes that the 50 51 52 1*54155 S6 57 8 59 GD 61 �1 v3 G 65 66 - - original lots 11, 12, and 13 must be viewed as separate from one another for the purposes of this case. The statement `! el• +` of agreed facts shows that these three lots were conveyed p to McPhee by a single deed in 1932 and that McPhee and Vassalotti have never owned any adjacent lots. The out- side boundaries of these three lots are determinable from !lr urioljgry�o the 1927 plan. These circumstances, in the aggregate, suf- t ficiently establish the three lots together as a single lot V 20 J9 18 1716 J514 I3 I2 II �a 9 8 7 6 5 - for purposes of-§ 17 of the Sudbury by-law and of G. L. �[/ g c. 40A;§ 5A. Under § 5A, the locus meets the definition of UOSDN a "lot lawfully laid out by plan or deed duly recorded," which under the sua;eeding italicized clause'(1) may be built upon, in the circumstances here presented. :Clause stead, he wishes to obtain, bywhat would be essentially a (2) of § 5A, in the view we take of the locus as a "lot," . form of declaratory: relief, board or court approval of the has no present application. Under § 17 of the by-law, we. :view the locus as a "lot . . : shown on a plan or deed re- locus (consistilig of three lots shown oil the 1927 plan) as a girded:" See Vetter v. Zoning Bd. of Appeal of tittle- single lot which may be used for residential building. Ap boro, 330 Masa. 628, 630 (where two lots owned together parently he now contends that the locus comes.within (a) ;were treated as a single lot in the somewhat comparable the sentence beginning at point [A] in the quoted portion, P of §`17 of the zoning by-law (fn. 2) and. (b) the provisio7ne eiremnstances there described): See also Sorenti v. Board of G. L. c 40A; §,5A (as amended through St: 1961; a 435, of Appeals of Wellesley, 345 Mass. 348, 353; Chater v. Boa d of v. Board Milton, lto ' ante, 237, 241-242, 244, 246. " f Appeals of Nahant, 338 Mass. &Section 5A, as than amended, reads in part,"A y lot lawfully Laid out by -.473, 477-480 (dealing with an unusual by-law and an am- - complies li deed duly of.suc'hareco�idig m 'wien'e��;mnm1L1 ' ' . which uitam bignons amendment). Of. also Publico v. Building Inspec- width,-and depth requirementa; if any, of any zoning . by-law'in a ecin . for of.Quincy, 336 Mass. 152, 154-155. We need not eon- the . . . town where-Me land isL situated, notwithstanding the,adoption�or • eider or discuss. what the situation would have been if amendment of provisions of a social; . -. . by-law in such... . town.imposing minimum area, frontage, width, depth, or yard requirements, or :more.than Vassalotti or any predecessor in title at any time since the one meltrequirement,in excess of those in effeet at the time.ot such record. - ing . . . (1J may thereafter be.built upon for residential we if,at the time " adoption of the zoning by-law in 1939 had owned any land of the adoption of such requirements or increased- requireineate, or while adjoining the locus. building en each lot woe otherwise permitted, whichever occurs later, such tot ' was held in ownership separate from that of adjoining land located in the - F: In this court, Vassalotti has proceeded-essentially as if same residential district, or (2) may be built upon for residential use for g the P appeal from proceedings before the board had been an a period Of ave years from the date of such recording . . , if, at the time of . the adoption of such requirements or increased requirements, such lot was held in-common-ownership with that of adjoining land located is the — (b) any proposed structure is to be located on each lot so se to conform with residential district; and further provided, in.eithu instance, at.the time of the minimum requirements of front, side, and rear yard setbacks, if any, in building (a) such lothas an area of five thousand square feet or more and aeffect at the time of such recording , and to all other requirements for frontage of fifty feet or more, is in a district zoned for residential us% and ' such structure in effect at the time of building . . ." (emphasis supplied). yggpq Conforms azoept as to area, frontage, width, and depth with the applicable In a• L a 41, ¢ 81L (inserted by St. 1953, c. 674, § 7'.later amended at L• ''r Provisions of the untag ordinance or bylaw is effect is each . . . town and various times is reapeets sot relevant), "lot" is defined u '`to area d land in one site of one or ors building& ' a as, used' or available for use, as the l h 662 348 Mass. 658 348 Ma Vassalotti v. Board of Appeals of Sudbury. the denial of a building permit. If!under G. L. c. 40A, § 5A, and § 17 of the by-law Vassalotti is entitled to a per- mit, he is not entitled to a variance (if, indeed, his situation. would in all respects meet the requirements for a variance; Devin see Coolidge v. Zoning Bd. of Appeals of Framingham, 343 Mass. 742, 744-746) since he does not need one. See the Publico case, supra, at p. 155, and the Chater case, supra, at pp. 241-243. His application to the board of appeals Present: does not seem to have been treated (either by the board Contract or by the trial judge) as an appeal from the denial of a tion. permit (G. L. c. 40A, § 13; cf. § 15) but rather as a re- Pract; quest that the board either grant a variance or declare that the locus may be regarded as a single lot and be mentioned _ The evid. {', was.m on the town records as a single lot.' . trial j, We thiol: that Vassalotti was entitled to a.building per- § 24; ; mit, so far as.the provisions of § 17 of the zoning by-law ' not ta( col and of § 5A are concerned. We now so state to avoid fur- be ma, ther litigation. See Wellesley..College v. Attorney Gen. 313 666], Mass. 722, 731. The final decree, however; was correct Vacatim: in holding. that Vassalotti was not entitled to a variance. part"` eontel That decree is to be modified (a) to provide simply that the deeree board of:appeals did not exceed its authority.in denying a afford variance, and (b) that the decree is without prejudice to In a su, who any subsequent application for a building permit. As so phi,, modified, the final decree is affirmed. when• So ordered. 4uisbi s" merit. prop,. and 1. dren. in th. Ian. 1959. Fol 390, f Jos plaint Joil i i