Heard: January 7, 2019.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Bobrowski for the defendant.
W. Kramer for the plaintiffs.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
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.
present the undisputed facts found by the Land Court judge.
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
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.
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.
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,  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. ...