Anne Preston v. Board of Appeals for the Town of Hull and Building ...

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
No. 98-P-1266
PLYMOUTH COUNTY
ANNE PRESTON
Plaintiff-Appellant,
v.
BOARD OF APPEALS FOR THE TOWN OF
HULL AND BUILDING INSPECTOR FOR THE
TOWN OF HULL
Defendants-Appellees.
On Appeal from a Judgment of the Superior Court
for Plymouth County
BRIEF OF AMICI CURIAE, THE ABSTRACT CLUB AND THE MASSACHUSETTS
CONVEYANCERS ASSOCIATION, INC.
F. Sydney Smithers
Cain, Hibbard, Myers & Cook, PC
66 West Street
Pittsfield, MA 01201
Tel: (413) 443-4771
Fax (413) 443-7694
BBO#470540
TABLE OF CONTENTS
Table of Authorities . . .. . . . . . . . . . . . .i
Statement of Interest of the Amici Curiae . . . . .1
Question Presented . . . .. . . . . . . . . . . . .3

Statement of the Case . . . . . . . . . . . . . . .4
Prior Proceedings . . . . . . . . . . . . . . 4
Facts . . . . . . . . . . . . . . . . . . . . 4
Summary of Argument. . . . . . . . . . . . . . . .4
Argument . . . . . . . . . . . . . . . . . . . . .5
Conclusion .. . . . . . . . . . . . . . . . . . . .8
TABLE OF AUTHORITIES
CASES PAGES
Adamowicz v. Ipswich, 395 Mass. 757 (1985) 6
Carciofi v. Board of Appeal of Billerica, 7
22 Mass. App. Ct. 926 (1986)
Dowling v. Board of Health of Chilmark, 6
28 Mass. App. Ct. 547 (1990)
STATUTES
G.L. c. 40A, § 6 3, 4, 5, 6, 7, 8, 9
OTHER AUTHORITIES
Bobrowski, Handbook of Massachusetts Land 8
Use and Planning Law (1993 ed. and Supp. 1998)
Schmidt, Land Use Manager, EOCD (Aug. 1986) 8
STATEMENT OF INTEREST OF THE AMICI CURIAE
The Abstract Club is a voluntary association. It has been in existence for over 100
years. It is limited by its by-laws to 100 members. Most of its members practice in
the City of Boston or in the Boston suburbs; a few practice in other cities of the
Commonwealth. Almost all of them practice exclusively, or nearly so, in the area of
real estate. An intimate and thorough knowledge of the zoning law of the
Commonwealth and municipality in which a parcel of real estate is located is vital to
the real estate practitioner's ability to advise a client as to the use to which a parcel
of real estate may be put. Of necessity, real estate practitioners are therefore also
zoning lawyers.
The Massachusetts Conveyancers Association, Inc. ("MCAI") is a non-profit

corporation. It has also been in existence for over 100 years. It has over 2,900
members, who practice in cities and towns throughout the Commonwealth. It is the
largest specialty bar in the Commonwealth. Many of its members practice extensively
in other areas, but all of them practice in the real estate area to such a degree as to
motivate them to belong to MCAI. Through its meetings, educational programs,
publications, and work of its committees , they can keep abreast of developments in
the field of real estate law and practice and share in the effort to improve such
practice.
Both the Abstract Club and MCAI work toward the improvement of real estate law
and practice through their educational programs, the promulgation of title standards,
practice standards, ethical standards, and real estate forms. In the field of
legislation, they draft and sponsor legislation designed to deal with problems which
arise in real estate law and practice and which can be cured or alleviated by
appropriate legislation and they support or oppose legislation drafted and sponsored
by others.
The Amicus Committee is a joint committee of the two organizations. Its members
are currently sixteen real estate and zoning lawyers with many years of experience.
They decide whether cases from trial courts or appellate courts are of enough
significance and interest to the real estate bar to justify the preparation and filing of
amicus briefs. From time to time they also file briefs when requested to do so by the
Appeals Court. All of their briefs, whether assigned to one or two lawyers to prepare,
are reviewed by others of the Committee.
The case at bar presents a fundamental zoning question frequently faced by the
members of the real estate bar and their clients: may two adjacent lots, owned in
common in the circumstances presented here, each now be built upon, or must they
be merged and result in only one building site? The answer to this question, and the
underlying policy informing the answer, is of great concern to the members of both
organizations; it is hoped their views on the question may be of assistance to the
Court.
QUESTION PRESENTED
Whether the plain language of G.L. c. 40A, §6, 4, First Sentence requires that each
of two non-conforming lots not held in common ownership at the time of adoption of
higher zoning requirements but now held in common ownership are now zoning legal
one or two-family residential building lots provided each contains 5,000 square feet
or more of area and has 50 feet or more of frontage?
STATEMENT OF THE CASE
Prior Proceedings
These amici adopt the Appellant's Statement of the Case.
Facts

These amici adopt the Appellant's Statement of Facts as expanded by the Appellees.
SUMMARY OF ARGUMENT
In light of the Legislature's prior opportunity to legislate the merger of substandard
grandfathered lots if subsequently held in common ownership, and its failure to do
so, the plain words of G.L. c. 40A, §6 require that each of Lots 22 and 24 is now a
separate legal building lot. Policy arguments favoring merger and the elimination of
substandard lots are more appropriately addressed to the Legislature.
ARGUMENT
It is not disputed that prior to 1969 each of Lots 22 and 24 contained in excess of
5,000 square feet of area, had 50 feet of frontage, and conformed to the then
dimensional requirements of the Hull Zoning By-Law. It is not disputed that each lot
was held in separate ownership in 1969 when the Hull Zoning By-Law was amended
to require 6,500 square feet of area and 50 feet of frontage. It is not disputed that
each lot continued to be held in separate ownership in 1978 when the present
dimensional requirements of 12,000 square feet of area and 75 feet of frontage,
respectively, were adopted. Lots 22 and 24 first came into common ownership, in the
Appellant, in 1987.
The plain words of G.L. c. 40A, §6, 4, First Sentence preclude the application of the
higher dimensional requirements to Lot 22 and 24 notwithstanding their present
common ownership.
Other than defining the term "Non-Conforming Lot" as "[a] lot that does not conform
to the regulations prescribed by this by-law for the district in which it is located"
(Appellees' Supplemental Appendix S.A. 11), the Hull Zoning By-Law is silent on the
issue of non-conforming lots and thus sole reliance is to be had to G.L. c. 40A, §6.
G.L. c. 40A, §6, 4, First Sentence provides:
"Any increase in area, frontage . . . requirements of a zoning by-law shall not apply
to a lot for single and two-family residential use which at the time of recording [a
deed of such lot] . . . 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 square feet of area and fifty feet of frontage."
G.L. c. 40, §6 (emphasis added). The purpose of c. 40A, §6 is "to protect a once
valid residential lot from being rendered unbuildable by the enactment of more
stringent zoning requirements." Dowling v. Board of Health of Chilmark, 28 Mass.
App. Ct. 547, 550 (1990).
As it is "the status of the lot immediately prior to the zoning change," which
determines whether the lot was a once valid building lot, the "compliance of a lot
with the common ownership requirement in the relevant sentence of G.L. c. 40A, §6,
is determined by looking at the most recent instrument of record prior to the
effective date of the zoning change from which the exemption is sought." Adamowicz
v. Ipswich, 395 Mass. 757, 762, (1985). Looking at the status of Lots 22 and 24 in
1969 reveals they conformed to then existing zoning requirements, were held in
separate ownership at the time of each adoption of higher requirements and thus,
the higher frontage and area requirements shall not apply. G.L. c. 40A, §6.

In Carciofi v. Board of Appeals of Billerica, the Appeals Court held that a
"grandfathered" lot was entitled to a building permit notwithstanding that it had been
subsequently held in common ownership with another substandard lot for a
substantial period of time after by-law amendments making each lot substandard as
to frontage were adopted. Carciofi v. Board of Appeals of Billerica, 22 Mass. App. Ct.
926 (1986).
The plain words of the statute must prevail over the policy considerations urged by
the Appellee and relied upon by the lower court. If the policy of merger of
substandard lots is to become the law of the Commonwealth, that action must be left
to the General Court.
Prior to the adoption of the present G.L. c. 40A, §6 as part of 1975 Mass. Acts 808,
the Department of Community Affairs had urged that:
"Lots held in separate ownership at the time of the zoning change would be subject
to an absolute freeze with respect to residential use, if not subsequently held in
common ownership with that of adjoining land located in the same residential
district."
1972 House Doc. No. 5009, at 42. The foregoing recommendation was consistently
put before the Legislature: 1973 House Doc. No. 6200 at 22; 1973 House Doc. No.
7227 at 19; 1974 House Doc. No. 2522 at 24. Ultimately, however, the merger
requirement for lots subsequently held in common ownership was not included in c.
40A, §6. Bobrowski, Handbook of Massachusetts Land Use and Planning Law, §5.3.1
(1993 ed., Supp. 1998). One commentator has stated:
"It appears that the Legislature considered and rejected language which would have
required the merger of separate lots if subsequently held in common ownership after
the effective date of the by-law."
Schmidt, Land Use Manager, EOCD Vol. 3, Ed. No. 6, Aug. 1986, p 3.
Strong policy arguments can be, and have been, advanced as to why substandard
lots, once "grandfathered" but later held in common ownership, should be merged
(Appellees' Brief at 14, 15-16), but such arguments should be pressed upon the
Legislature which, having once considered and rejected the doctrine of merger, is the
only proper body to effectuate this change in the law.
CONCLUSION
The General Court substantially rewrote the Zoning Enabling Act in adopting 1975
Mass. Acts 808, appearing as G.L. c. 40A. The Legislature considered, but did not
adopt, a recommendation which would have required merger of substandard
adjacent lots subsequently held in common as in this case. In light of such history,
the clear mandate of G.L. c. 40A, §6, 4, First Sentence is that Lots 22 and 24, having
been in separate ownership at the time of adoption of the higher requirements, were
then, and are now, two separate legal building lots. If the perceived planning
benefits of elimination of substandard lots is to be achieved, it is a question for
consideration and enactment by the General Court by a simple change to Section 6.
This case should be remanded to the Hull Board of Appeals with instructions to
further consider Preston's appeal, in light of the Court's decision.

Respectfully Submitted
F. Sydney Smithers
CAIN, HIBBARD, MYERS & COOK, PC
66 West Street
Pittsfield, MA 01201
Tel: (413) 443-4771
Fax: (413) 443-7694
BB0#470540
CERTIFICATE OF SERVICE
I, F. SYDNEY SMITHERS, hereby certify that I have today sent, by first class mail, a
copy of the foregoing motion to counsel for Appellant Ann M. Preston and Appellees
Joseph L. Duffy, Jr., et al:
APPELLANT: Walter L. Sullivan, Esquire
Sullivan & Sullivan, P.C.
80 Washington Street, Suite No.7
Norwell, MA 02061
APPELLEES:
TOWN OF HULL: James Lampke, Esquire
Town Counsel
Town of Hull-Municipal Building
Hull, MA 02045
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
No. 98-P-1266
PLYMOUTH COUNTY
ANNE PRESTON
Plaintiff-Appellant,
v.
BOARD OF APPEALS FOR THE TOWN OF
HULL AND BUILDING INSPECTOR FOR THE
TOWN OF HULL

Defendants-Appellees.
On Appeal from a Judgment of the Superior Court for Plymouth County
BRIEF OF AMICI CURIAE, THE ABSTRACT CLUB AND THE MASSACHUSETTS
CONVEYANCERS ASSOCIATION, INC.
F. Sydney Smithers
Cain, Hibbard, Myers & Cook, PC
66 West Street
Pittsfield, MA 01201
Tel: (413) 443-4771
Fax (413) 443-7694
BBO#470540