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RCA Development, Inc. v. Zoning Board of Appeals of Brockton

Supreme Judicial Court of Massachusetts, Suffolk

May 1, 2019

RCA DEVELOPMENT, INC., & another[1]
v.
ZONING BOARD OF APPEALS OF BROCKTON.

          Heard: January 7, 2019.

         Civil action commenced in the Land Court Department on December 16, 2016. The case was heard by Robert B. Foster, J., on motions for summary judgment.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Mark Bobrowski for the defendant.

          Scott W. Kramer for the plaintiffs.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         We are called upon to determine whether a building permit should have been issued for a lot in Brockton. In 1964, the lot at issue was part of a lot that was divided in half by its owner in two separate conveyances without any plan presented to the local planning board. If a division constitutes a subdivision, there is a statutory requirement that it be approved by the planning board. The questions we must answer are first, whether the 1964 division was a subdivision under the subdivision control law and Brockton's zoning ordinance, and if not, was there a requirement that the division be approved by the planning board nonetheless. Because we agree with the Land Court judge's determination that the division of the lot was not a subdivision and that the owners were not otherwise required to seek any planning board action, we affirm.

         Background.

         We present the undisputed facts found by the Land Court judge.

         In 1937, a plan of land in Brockton that was divided into lots was recorded in the Plymouth registry of deeds. Lot 46 was located south of lot 45 and north of lot 47. In 1964, the owner of lot 46 conveyed the northern half of the lot to the owner of lot 45, and southern half of the lot to the owner of lot 47, which is the property at issue here (the locus). Each half of lot 46 had 57.5 feet of frontage on Braemoor Road, and was approximately 141 feet deep, with a square footage of 8, 132.

         The transfer of the locus was recorded. The next year, lot 47 and the locus were conveyed in a deed that was recorded and differentiated between "[t]he southerly half of lot 46, and all of lot 47." The boundaries of the two lots were described individually. These transfers were subject to the 1963 Brockton zoning ordinance (which was replaced by the current Brockton zoning ordinance in 1968). Houses have been built on lots 45 and 47, with addresses on Braemoor Road.

         The locus, along with lot 47, was conveyed several times between 1965 and 2016, when it was conveyed to plaintiff Michelle Annese. Annese and plaintiff RCA Development, Inc., applied for a permit to construct a house on the locus, which the building inspector denied. The plaintiffs appealed to the zoning board of appeals of Brockton (board), which denied their appeal on the basis that the locus had merged with lot 47 and had therefore lost its "grandfathered" status as buildable under the 1963 zoning ordinance. The plaintiffs appealed from the board's decision to the Land Court, where the plaintiffs argued that the locus resulted from a division that did not constitute a subdivision, and that the legitimacy and buildability of lot 46 should be considered under the 1963 zoning ordinance, which was in effect at the time of the division. The board countered that the lot was unbuildable because the division of the lot did not comply with the subdivision control law, and that the 1963 zoning ordinance should no longer apply because the locus merged with lot 47 due to common ownership.

         The parties submitted a joint statement of agreed-upon facts in the Land Court and filed cross motions for summary judgment. A Land Court judge reversed the decision of the board, determining that, because each lot that resulted from the split of lot 46 had adequate frontage on a public way at the time of the division, [2] it did not constitute a subdivision under G. L. c. 41, § 81L. Therefore, the division of the lot did not require the approval of the planning board under G. L. c. 41, § 810. In addition, the judge determined that although the owner of lot 46 could have sought the planning board's endorsement of the division through an "approval not required" (ANR) plan, the owner was not required to do so. ...


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