ALEXANDER C. KOINES & another
ZONING BOARD OF APPEALS OF COHASSET & others.
Nonconforming use or structure, Lot size, Exemption, Judicial
review. Real Property, Merger.
R. Talerman for the plaintiffs.
Moran Carter for John Shaw and another.
Kimberly M. Saillant for Cohasset Zoning Board of Appeals.
plaintiffs appeal from a judgment of the Land Court that
affirmed a decision of the defendant zoning board of appeals
of Cohasset (board) based on a conclusion that the board
correctly interpreted the Cohasset zoning by-law to afford
grandfather protection to a lot owned by the defendants John
and Martha Shaw. We affirm.
issue in the case is section 8.3.2(c) of the by-law, the
language of which is set out in the margin. The Shaws' lot,
containing approximately 21, 850 square feet, is located in
an R-C district in which the minimum lot size is 60, 000
square feet. The current minimum lot size results from an
increase enacted by amendment to the by-law in 1985, at a
time when the Shaws' lot was held in common ownership
with several parcels of adjacent land. The lot accordingly
plainly meets the literal linguistic requirements of the
second portion of section 8.3.2(c) as applicable to lots in
the R-C district.
plaintiffs nonetheless contend that the board erroneously
interpreted the by-law to afford grandfather protection to
the lot by virtue of the common law doctrine of merger. Under
that doctrine, a lot held in separate ownership at the time
an increase in area renders it nonconforming and thereby
entitled to grandfather protection under the fourth paragraph
of G. L. c. 40A, § 6, loses grandfather protection if it
thereafter comes into common ownership with adjoining land.
See Preston v. Board of Appeals of
Hull, 51 Mass.App.Ct. 236, 243 (2001). As the plaintiffs
observe, this court reached its conclusion in
Preston despite the fact that the lot at issue met
the literal linguistic requirements set forth in the statute,
resting its conclusion on the fact that the Legislature,
though presumptively aware of the preexisting and
well-established merger doctrine at the time it enacted
§ 6, did not evince a clear intent to alter the common
law. See J_d. at 240, 243.
present case stands differently since we are presented with
an enactment of the Cohasset town meeting, construed by the
local zoning board of appeals charged with its
administration.In general, a reviewing court grants
"substantial deference to an interpretation of a statute
by the administrative agency charged with its
administration." Protective Life Ins. Co.
v. Sullivan, 425 Mass. 615, 618 (1997). The
principle of deference to the interpretation by an
administrative agency carries even greater force in the area
of zoning, by reason of "a local zoning board's home
grown knowledge about the history and purpose of its
town's zoning by-law." Duteau v.
Zoning Bd. of Appeals of Gloucester, 47 Mass.App.Ct.
664, 669 (1999) . See Wendy's Old Fashioned
Hamburgers of New York, Inc. v. Board of
Appeal of Billerica, 454 Mass. 374, 381 (2009). The
board's interpretation of section 8.3.2(c) is entirely
consistent with the language of the by-law. Moreover, unlike
the provision of G. L. c. 40A, § 6, at issue in
Preston, supra, the by-law provision in the
present case specifically is directed to protect lots meeting
specified criteria, despite being held in common ownership
with adjacent land that would, under ordinary common law
merger principles, cause the commonly owned lots to merge
together. Accordingly, an interpretation that the Shaws'
lot is entitled to grandfather protection under §
8.3.2(c) of the by-law is faithful to the evident purpose of
the provision -- or at least a reasonable board could so
conclude. In the circumstances, we see no cause to disturb
the board's reasonable interpretation of the by-law it is
charged to administer.
 Stephen J. Crummey.
 John and Martha Shaw.
 Section 8.3.2(c) of the by-law
specifies that a lot that does not meet the otherwise
specified dimensional requirements of the by-law nonetheless