21 BARCELONA AVENUE - BUILDING JACKET 2 COMMONWEALTH OF MASSACHUSETTS
r
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. G. 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 AvenueZ, 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 Renard,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.
2 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.,
While the plaintiffs 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.
3 Pitreau, et al v. Cohen,et al,Civil Action No. 2005-0381.
a Pitreau,et al v; Cohen. et A Civil Action No. 2005-1567.
2
„
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 plaintiffs 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
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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.
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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-1 zoning district was 7,000 square feet.
12. In April of 1977, the minimum required 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 parry 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.
5 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 first address the grounds on which the defendant seeks to dismiss the
plaintiff's complaint, all of which are incorporated into her opposition to plaintiff s motion for
summary judgment. Defendant also filed a separate Motion to Dismiss for Lack of Subject
Matter Jurisdiction subsequent to filing her opposition to plaintiff s 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
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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 plaintiff's motion to strike 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 Newburyport, 421 Mass. 719, 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, §11.6 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
4
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
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must be of a type on which a reasonable person could rely to conclude that the claimed injury
likely will flow from the board's action. Conjecture, 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 plaintiffs 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 aggrievment, 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 plaintiffs 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
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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 Appeals 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 "[a]dministrative [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
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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 partto theproceedin ..,may
bring an appeal to the land court ... by bringing an action within twenty days after the decision
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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 tum 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."Ne. 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 Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors
Corp., 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. Attomev 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,may be rendered
against the moving party."Mass. R. Civ. P. 56(c).
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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 inexistence for more than five years, stating that if all or part of the
lots are nonconformin¢,.the.land,shall be considered an undivided-parcel;and-shall_not be used
,or 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 Aweals 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 his adjacent land 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 conforming-lot-as-servient to the-nonconforming lot,
in-order to achieye complianQe.with-the zoning ordinance—DiCieco v. Berwick, 27 Mass. App. y
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,
Fadjoin ng nonaconforming.paicels.held=in common-ownership-may-avoi8merger if theymaintain
,,a_°separate-identity at=all_relexant_times. Asack, 47 Mass. App. Ct. at 736, quoting Lindsay vv.
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
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." Champiggy 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 hart 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` a_ll 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 plain, 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
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 ATR UE COPY
ATTEST:
RECORDER
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COMMONWEALTH OF MASSACHUSETTS
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 )
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 plaintiff's 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
o :
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
ATRUE COPY
Dated: December 31, 2007 KTTEST
pECORDER
Certificate No: 588-05 Building Permit No.: 588-05
Commonwealth of Massachusetts
City of Salem
Building Electrical Mechanical Permits
This is to Certify that the RESIDENCE located at
Dwelling Type
0021BARCELONA AVENUE in the CITY OF SALEM
- - - ----- - -- ----- - - ----------------------- ---------------------------- - -
Address Town/City Name
IS HEREBY GRANTED A PERMANENT CERTIFICATE OF
OCCUPANCY
OCCUPANCY PERMIT FOR 21 BARCELONA AVENUE
This permit is granted in conformity with the Statutes and ordinances relating thereto, and
expires . . _ . .....-- unless sooner suspended or revoked.
------ - ---------
Expiration Date
Issued On: Wed Jun 10, 2009 -------------------------
GeoTMS®2009 Des Landers Municipal Solutions,Inc. ---------------'--- - -' - -'-- ---------- '-----------------"------------
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V3QVE AD
CITY OF SALEM
BUILDING PERMIT
0021 BARCELONA AVENUE 588-05
Gis# ; 9179° = , , COMMONWEALTH OF MASSACHUSETTS
Map '€"em m t 04 a��t�'� �f+N!�•iu,
I3tock �. to- ti ° CITY OF SALEM
.4' 0029 Q"z: .,
Catist:„ 101 New Single fa`inily
Perrnit# C 'm� 588-051 4. cep BUILDING PERMIT
Project# ,.;" ¢JS-2005 000624 F1-,l i= Y
Est Cost: "$130,000.OO
Fee Charged:' -n,$785.00 k::=.
Balance We' " $.00 +mi i57 9i#` T r PERMISSIONIS HEREBY GRANTED TO:
Const Class: �," lrw ,a.,. ;t;;n Contractor: License: Expires r
Use Gxoup:F is E. ��n r>i,dt t:3? DBA PC SASH CONSTRUCT[O SUPERVISOR-085041
Lot Stge(sq ft) 8433 216'"'1(; pll! 451
Zomn anrlr Owner: CHASSE PATRICK A
Units Gai ed: sa Applicant: Patrick A. Chasse
Units Lost.ti';i AT: 0021 BARCELONA AVENUE
Dig Safe#:X
ISSUED ON: 22-Dec-2004 AMENDED ON: EXPIRES ON: 22-Jul-2005
TO PERFORM THE FOLLOWING WORK:
588-05 NEW SINGLE FAMILY HOME PER PLANS SUBMITTED TJS
POST THIS CARD SO_ IT IS VISIBLE FROM THE STREET ,
Electric Gas Plumbing Building
Underground: Underground: Underground: Excavation:
Servicer: Footings:
Rough: —/J- �/7 I ugh: Rough:Ok-fv C d�//O j• Foundation: /.
Final: Fi Fina ly� � ��/p;/Q Rough.Frame:�Heir
ll6/\ ✓ Fireplace/Chimney:
D.P.W. Fire Health
Meter: Oil:
Insulation:
- r Final: W1 /_41.01777
House# mo ;���/ -� _ �l0 W
`��, a Treasury:
Water:�h""V� �: Assessor
Sewer: d Sprinklers: Final:
THIS PERMIT MAY BE REVOKED BY THE CITY OF SALEM UPO OLATION OF ANY OF ITS
RULES AND REGULATIONS.
✓�/�
Signature: ' L
Fee Type: Receipt No: Date Paid: Check No: Y Amount:
BUILDING BFC-2Z00"5-007 9 22-Dec-04 2451 $785.00
MPQ�. �;a.. vpt+��.wnae.•r +.�.o—wsm., u9�rs:
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CITY OE SALEM
BUILDING PERMIT
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