Palitz v. Zoning Board of Appeals of Tisbury , 470 Mass. 795 ( 2015 )

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SJC-11678
SUZANNE PALITZ, trustee,1 vs. ZONING BOARD OF APPEALS OF
TISBURY & another.2
Suffolk. November 6, 2014. - March 3, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Subdivision Control, Zoning requirements, Approval not required.
Zoning, Nonconforming use or structure, Variance.
Civil action commenced in the Land Court Department on
October 10, 2012.
The case was heard by Karyn F. Scheier, J., on a motion for
summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
Daniel P. Dain for the plaintiff.
Jonathan M. Silverstein (Katherine D. Laughman with him)
for the defendants.
The following submitted briefs for amici curiae:
1
Of the 87 Main Street Nominee Trust.
2
Building inspector and zoning enforcement officer of
Tisbury.
2
Gareth I. Orsmond & Jesse W. Abair for Massachusetts
Association of Regional Planning Agencies & others.
Edward J. DeWitt for Association to Preserve Cape Cod.
Benjamin Fierro, III, for Home Builders and Remodelers
Association of Massachusetts, Inc.
CORDY, J. In this appeal, we must decide whether a
division of land pursuant to the subdivision control law's
existing structures exemption, G. L. c. 41, § 81L (§ 81L),3
entitles the structures on the resulting lots to "grandfather"
protection against new zoning nonconformities created by the
division. As is more fully set forth herein, the plaintiff is
the most recent owner of a lot in the town of Tisbury (town).
The lot was created in 1994 by a division of land pursuant to
the existing structures exemption. On the lot is a structure
built before both the subdivision control law and the Zoning
Act, St. 1975, c. 808, went into effect.
The plaintiff sought a permit to tear down the existing
structure and build a new one, somewhat larger and taller than
the existing structure. The permit was denied on zoning
grounds, and the plaintiff appealed to the Land Court. A judge
in the Land Court concluded that the § 81L division created new
zoning nonconformities that deprived the plaintiff's dwelling of
3
As defined in G. L. c. 41, § 81L (§ 81L), a
"[s]ubdivision" does not include "the division of a tract of
land on which two or more buildings were standing when the
subdivision control law went into effect in the city or town in
which the land lies into separate lots on each of which one of
such buildings remains standing."
3
the grandfather status it might have had under the Zoning Act.
As a result, the plaintiff, who sought to tear down and rebuild
her dwelling approximately ten feet taller, was required to
obtain a variance.
We conclude that an exemption from the subdivision control
law entitles a landowner to an endorsement that planning board
approval is not required for the division of qualifying
properties into separate lots, each with its own structure, but
that such an endorsement has no bearing on each structure's
compliance with zoning bylaws. See Alley v. Building Inspector
of Danvers, 354 Mass. 6, 7-8 (1968). In light of the new zoning
nonconformities created by the division of land in this case, a
variance was required -- and, in fact, was previously granted to
the former owner -- to make the plaintiff's current dwelling
lawful. A variance cannot, however, serve as a launching pad
for the expansion of zoning nonconformities. See Mendes v.
Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 531
(1990). Consequently, we agree with the Land Court judge that,
in order to proceed with her project, which would have
eliminated an abutter's view of Vineyard Haven Harbor, the
plaintiff was required to obtain a new or amended variance.4
4
We acknowledge the amicus briefs submitted by the
Association to Preserve Cape Cod; Home Builders and Remodelers
Association of Massachusetts, Inc.; and the Massachusetts
Association of Regional Planning Agencies, Martha's Vineyard
4
1. Background. We summarize the facts relied on by the
Land Court judge, supplemented where necessary by the undisputed
facts in the record. See 81 Spooner Road, LLC v. Zoning Bd. of
Appeals of Brookline, 461 Mass. 692, 693 (2012). From 1923
until 1994, the parcels of land now known and numbered as 83,
87, and 89 Main Street in the town were held in common ownership
(original tract). Three single-family residential buildings
stood closely clustered on the original tract. The town adopted
a local zoning bylaw in 1959, and the subdivision control law
went into effect in 1974.
In 1994, the owner of the original tract, Michael Putziger,
sought to divide the land into three lots, such that a single
dwelling would stand on each lot, in conformance with the
existing structures exemption from the definition of
"subdivision" in § 81L. Putziger submitted a plan to the town's
planning board and received an "approval not required"
endorsement pursuant to G. L. c. 41, § 81P (§ 81P) (ANR
endorsement). The ANR endorsement stated that it did "not stay
enforcement of zoning violations." The plan depicting the
endorsement and the three newly created lots was duly recorded.
The new lot at 87 Main Street, as created by the § 81L
plan, did not conform to the town's zoning bylaw regarding
Commission, Massachusetts Association of Planning Directors,
Inc., and Massachusetts Chapter of the American Planning
Association.
5
minimum lot size and frontage requirements. The creation of the
new lot also rendered the dwelling located thereon nonconforming
with respect to its front and southern side yard setbacks.
Putziger sought variances from the zoning board of appeals of
Tisbury (zoning board) to make the lot and dwelling lawful and,
therefore, saleable as such.5 In 1995, the zoning board granted
the variances, finding: "There will be no change in the
appearance or use of the buildings on the . . . properties and
their relation to adjoining . . . properties. Therefore,
desirable relief may be granted without either a substantial
detriment to the public good or substantial derogation from the
intent or purpose of this by-law" (1995 variance). The variance
was recorded, and 87 Main Street was sold soon thereafter.
In 2007, the plaintiff acquired 87 Main Street. In 2012,
she sought a building permit to tear down the existing dwelling
and construct a new dwelling that, while maintaining the same
footprint, would have been approximately ten feet taller and
added a bedroom, a third floor, and a full basement. The zoning
enforcement officer refused to issue the building permit unless
the zoning board amended the 1995 variance. As a result, the
5
The zoning board of appeals of Tisbury (zoning board)
found that the newly created lot at 87 Main Street was
undersized by 3,157 square feet and lacked 110 feet of required
frontage. The zoning board also found, inter alia, that the
structure thereon had a front setback of only four feet, whereas
twenty-five feet were required under the zoning bylaw.
6
plaintiff applied for an amended or new variance, which
application was denied, in part, because the increased height of
the new dwelling -- in conjunction with the nonconforming front
yard setback -- would have eliminated the view of an abutter.6
The plaintiff appealed the zoning board's decision to the
Land Court and moved for summary judgment. The plaintiff argued
that 87 Main Street was entitled to grandfather protection under
the Zoning Act, G. L. c. 40A, § 6,7 because the dwelling predated
the town's zoning bylaw and the lot was created pursuant to the
existing structures exemption from the subdivision control law.
As such, she reasoned that neither the 1995 variance nor an
amended variance was necessary to her project. The judge
disagreed, holding that the ANR endorsement did not establish
6
In addition to the elimination of the abutter's view, the
zoning board found that the plaintiff "did not prove substantial
hardship, financial or otherwise, since many of the
modifications necessary could be done within the existing
dwelling . . . and, further, that with the added bedroom, full
basement and additional third floor, the density of the
neighborhood will be negatively impacted."
7
The grandfather protection afforded under the Zoning Act
can be found in the first paragraph of G. L. c. 40A, § 6, which
provides, in relevant part:
"a zoning ordinance or by-law shall not apply to structures
or uses lawfully in existence or lawfully begun, . . . but
shall apply to any change or substantial extension of such
use, . . . [and] to any reconstruction, extension or
structural change of such structure . . . except where
alteration, reconstruction, extension or structural change
to a single or two-family residential structure does not
increase the nonconforming nature of said structure."
7
zoning compliance and, as a result, 87 Main Street was not
rendered lawful for zoning purposes by the grandfather
protection afforded by § 6. Rather, 87 Main Street was rendered
lawful by the 1995 variance, and consequently, an amendment to
that variance was required for the plaintiff to enlarge her
dwelling. Finding that the denial of the amendment was neither
arbitrary nor capricious, the judge granted summary judgment in
favor of the zoning board. We granted the plaintiff's
application for direct appellate review and now affirm the
judgment of the Land Court.
2. Discussion. a. Analytical framework. We review de
novo a judge's decision granting summary judgment to the zoning
board. 81 Spooner Road, LLC, 461 Mass. at 699. "Summary
judgment is appropriate if there is no genuine issue of any
material fact and the moving party is entitled to a judgment as
a matter of law." Conley v. Massachusetts Bay Transp. Auth.,
405 Mass. 168, 173 (1989). "Summary judgment, when appropriate,
may be rendered against the moving party." Mass. R. Civ. P. 56
(c), as amended, 436 Mass. 1404 (2002). "An order granting or
denying summary judgment will be upheld if the trial judge ruled
on undisputed material facts and [her] ruling was correct as a
matter of law." M.P.M. Bldrs., LLC v. Dwyer, 442 Mass. 87, 89
(2004), quoting Route One Liquors, Inc. v. Secretary of Admin. &
Fin., 439 Mass. 111, 115 (2003).
8
Under the subdivision control law, a person may not
subdivide a tract of land unless he or she has first submitted a
plan of the proposed subdivision for approval by the town's
planning board. G. L. c. 41, § 81O. However, planning board
approval is not required for certain divisions of land that are
specifically exempted from the definition of "subdivision" in
§ 81L. See G. L. c. 41, § 81P. A plan falling within such an
exemption is entitled to an ANR endorsement pursuant to § 81P.
See Citgo Petroleum Corp. v. Planning Bd. of Braintree, 24 Mass.
App. Ct. 425, 426-427 (1987).
An ANR endorsement allows a plan to be recorded and
"creates a 'zoning freeze,' in which the laws applicable to the
lot at the time of endorsement remain applicable for a period of
three years." Marashlian v. Zoning Bd. of Appeals of
Newburyport, 421 Mass. 719, 725 n.9 (1996). An ANR endorsement
does not, however, render a lot compliant with zoning laws.
Alley, 354 Mass. at 7-8. A landowner may nonetheless avoid such
compliance by obtaining a variance or by seeking grandfather
protection for the property under the Zoning Act, G. L. c. 40A,
§ 6. Grandfathered structures and uses may be extended or
altered without obtaining a variance, so long as "(1) the
extensions or changes themselves comply with the ordinance or
by-law, and (2) the structures as extended or changed are found
to be not substantially more detrimental to the neighborhood
9
than the preexisting nonconforming structure or structures."
Rockwood v. Snow Inn Corp., 409 Mass. 361, 364 (1991).
b. Grandfather status of 87 Main Street. The plaintiff's
lot, 87 Main Street, was created through a division of land
pursuant to the existing structures exemption. Prior to that
division, the existing structure's northern side yard setback
was already nonconforming with the town's zoning bylaw. Because
the structure predated the effective date of the bylaw, it
appears to have constituted a preexisting nonconforming
structure entitled to grandfather status under the Zoning Act.8
G. L. c. 40A, § 6.
Although preexisting nonconforming status runs with the
land, Derby Refining Co. v. Chelsea, 407 Mass. 703, 708 (1990),
the "introduction of a new nonconformity to a pre-existing
nonconforming residential structure requires a variance."
Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct.
539, 547, 553 (2014). Zoning violations arising from
nonconformities may be stayed by the doctrine of merger, "which
treats adjacent lots currently in common ownership as a single
lot 'for zoning purposes so as to minimize nonconformities.'"
Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255, 261
8
The Land Court judge did not make a determination as to
whether the original tract and structures thereon were entitled
to grandfather status prior to the § 81L division. The parties
agree that resolution of this issue is not critical to the
disposition of the present appeal.
10
(2003), quoting Preston v. Board of Appeals of Hull, 51 Mass.
App. Ct. 236, 238 (2001). However, absent a variance,
alienation of one of the nonconforming properties will result in
realization of the zoning violations by the new owner. Cf.
Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266,
271 n.10 (2008) (conveyance that "demerged" lots resulted in
purchase of illegally nonconforming lot).
The plaintiff notes that, regardless of any alteration to
87 Main Street's lot, the § 81L division (and the additional
nonconformities it may have created) did not result in a
physical alteration to the preexisting structure thereon. Thus,
according to the plaintiff, the preexisting nonconforming status
of the structure survived the § 81L division. Under this logic,
the 1995 variance was superfluous and the plaintiff should not
have been required to amend it as a condition to her
reconstruction project. We think that the plaintiff
misconceives the relationship between lots, structures, and
uses. See Bransford v. Zoning Bd. of Appeals of Edgartown, 444
Mass. 852, 861 (2005) (Greaney, J., concurring) ("Creating a
distinction in treatment between a nonconforming structure and a
nonconforming lot is one that analytically and practically
should not be made. The two concepts are intertwined and
separating them would permit a landowner to circumvent valid and
useful minimum lot area requirements"); Marblehead v. Deery, 356
11
Mass. 532, 537 (1969) (setback violation created by subdivision
rendered preexisting structure "an unprotected nonconforming
use").
Prior to the enactment of the Zoning Act in 1975, we
decided Howland v. Acting Supt. of Bldgs. & Inspector of Bldgs.
of Cambridge, 328 Mass. 155 (1951). In that case, the owner of
a single tract of land with three dwellings located thereon
sought to subdivide the tract into three lots with a dwelling on
each. Id. at 158. The proposed division would have created new
zoning nonconformities as to lot size, frontage, and setback.
The plaintiff contended "that since his land and buildings
existed in their present physical condition before any zoning
ordinance had been enacted, he [was] entitled to dispose of his
property as he [saw] fit free from the limitations of the zoning
ordinance."9 Id. at 159. We disagreed, concluding that the
"proposed division of the plaintiff's lot into three separate
lots owned by different persons would change the use of his land
to a different use which would be contrary to the ordinance and
beyond the protection of the previously existing use." Id.
9
The local zoning ordinance included the following
exception for existing buildings: "This ordinance shall not
apply to existing buildings or structures, nor to the existing
use of any building or structure, or of land to the extent to
which it is used at the time of adoption of this ordinance, but
it shall apply to any change of use thereof." Howland v. Acting
Supt. of Bldgs. and Inspector of Bldgs. of Cambridge, 328 Mass.
155, 159 (1951).
12
Accordingly, we held that, absent a variance, the plaintiff did
not have "the right to make what is really a change of use of
his land under the shelter of nonconformity existing when the
ordinance was enacted." Id. at 160.
The Howland case is consistent with our subsequent
interpretation of the Zoning Act's grandfather provision in
Rockwood, 409 Mass. at 364. In the Rockwood case, we explained
that, "in the absence of a variance, any extension or structural
change of a nonconforming structure must comply with the
applicable zoning ordinance or by-law." Id. In other words, a
new nonconformity is not entitled to grandfather protection
under the Zoning Act. Thus, even under the Zoning Act, the new
nonconformities created by the division of land in the Howland
case would have required a variance. See id. See also
Deadrick, 85 Mass. App. Ct. at 547.
In this case, the § 81L division created new zoning
nonconformities as to lot size, frontage, and front yard
setback, among others. Because the Zoning Act only permits
changes to grandfathered structures if the "changes themselves
comply with the ordinance or by-law," the Zoning Act did not
render those new nonconformities lawful. Rockwood, 409 Mass. at
364. Thus, contrary to the plaintiff's position, firmly
entrenched principles of zoning law compel the conclusion that
the 1995 variance was necessary to render the new
13
nonconformities lawful. See id. See also Howland, 328 Mass. at
160; Deadrick, 85 Mass. App. Ct. at 547.
The plaintiff's reliance on Barron Chevrolet, Inc. v.
Danvers, 419 Mass. 404 (1995), is misplaced. In that case, an
automobile dealership obtained setback variances for the
location of signs on its lot. "The variances did not address,
and were not conditioned on, the content or any other feature or
quality of the signs." Id. at 408-409. A subsequent zoning
change rendered the content and size of the signs nonconforming.
When the dealership sought to replace the panels of its signs,
the town insisted it obtain amended variances. We held that the
town was in error, because the proposed replacements had no
bearing on the variance. Id. at 408. Rather, the replacements
related to -- but did not expand -- the nonconformities made
lawful by the signs' grandfather status. Id. at 409-410.
In contrast, here, the plaintiff's proposed reconstructed
dwelling would not have affected the northern side yard setback
nonconformity of 87 Main Street, which preexisted the § 81L
division. Rather, it would have expanded the nonconformities
created by the § 81L division, which were made lawful by the
1995 variance.10 See Bransford, 444 Mass. at 861 (lawful
10
It is of no consequence that the increased height would
have been within the maximum height allowed for residential
structures. The increase in height was objectionable because,
14
increase in size of structure expanded lot size nonconformity).
"It would be anomalous if a variance, by its nature sparingly
granted, functioned as a launching pad for expansion as a
nonconforming use"11 (footnote omitted). Mendes, 28 Mass. App.
Ct. at 531. Because the proposed reconstruction in this case
would have expanded nonconformities permitted by variance, the
plaintiff was required to obtain a new or amended variance to
proceed with her project.
c. Zoning effect of the existing structures exemption.
The plaintiff contends that, even if new nonconformities created
by a division of land could deprive a structure of grandfather
protection under the Zoning Act, new nonconformities created
pursuant to the subdivision control law's existing structures
exemption should be ignored for zoning purposes. We analyze
§ 81L exemptions "in light of the over-all purpose of the
subdivision control law." Corcoran v. Planning Bd. of Sudbury,
406 Mass. 248, 250 (1989). "[W]e have emphasized repeatedly
that a principal object of the law is to ensure efficient
vehicular access to each lot in a subdivision, for safety,
convenience, and welfare depend critically on that factor."
inter alia, it would have expanded the front yard setback
nonconformity by blocking the view of an abutter.
11
This concern is particularly acute here, as, in further
contrast to the case of Barron Chevrolet, Inc. v. Danvers, 419
Mass. 404 (1995), the grant of the 1995 variance was based, in
part, on the building not being altered.
15
Gifford v. Planning Bd. of Nantucket, 376 Mass. 801, 807 (1978).
See Daley Constr. Co. v. Planning Bd. of Randolph, 340 Mass.
149, 153-154 (1959) (reviewing legislative history). See also
G. L. c. 41, § 81M (legislative purpose statement).
Accordingly, "[w]here our statute relieves certain divisions of
land of regulation and approval by a planning board ('approval .
. . not required'), it is because the vital access is reasonably
guaranteed in another manner." Gifford, 376 Mass. at 807.
In Gifford, supra, we considered a challenge to an ANR
endorsement granted pursuant to the subdivision control law's
frontage-based exemption, for a plan dividing a forty-nine acre
parcel into lots.12 We reasoned that, ordinarily, "lots having
12
The frontage exemption from the definition of
"subdivision" provides, in relevant part:
"the division of a tract of land into two or more lots
shall not be deemed to constitute a subdivision within the
meaning of the subdivision control law if, at the time when
it is made, every lot within the tract so divided has
frontage on (a) a public way or a way which the clerk of
the city or town certifies is maintained and used as a
public way, or (b) a way shown on a plan theretofore
approved and endorsed in accordance with the subdivision
control law, or (c) a way in existence when the subdivision
control law became effective in the city or town in which
the land lies, having, in the opinion of the planning
board, sufficient width, suitable grades and adequate
construction to provide for the needs of vehicular traffic
in relation to the proposed use of the land abutting
thereon or served thereby, and for the installation of
municipal services to serve such land and the buildings
erected or to be erected thereon."
G. L. c. 41, § 81L.
16
[sufficient] frontage are fully accessible, and as the developer
does not contemplate the construction of additional access
routes, there is no need for supervision by the planning board
on that score." Id. Nonetheless, we affirmed the judgment
annulling the ANR endorsement because, despite technically
sufficient frontage for each proposed lot on the parcel, the
lots were laid out in such a way as to prevent sufficient access
to each of them. Id. at 808-809. The Gifford case teaches that
the effect of an § 81L exemption is circumscribed by its
underlying purpose. See Corcoran, 406 Mass. at 251 (guiding
principle of Gifford case is that planning board may withhold
ANR endorsement where access implied by frontage is illusory).
The plaintiff contends, without citation, that the existing
structures exemption contemplates the "traditional New England
family compound." The legislative history of § 81L does not
draw distinctions in purpose between the frontage-based
exemption and the existing structures exemption.13 See Report of
13
The creation of exemptions from "subdivision" under § 81L
and "approval not required" (ANR) endorsements under G. L.
c. 41, § 81P (§ 81P), were among the many revisions made to the
subdivision control law in 1953 as result of the Report of the
Special Commission on Planning and Zoning, 1953 House Doc. No.
2249. See Daley Constr. Co. v. Planning Bd. of Randolph, 340
Mass. 149, 153-154 (1959). The report explained the interaction
of exemptions and ANR endorsements as follows:
"it seemed best to require the person who intends to record
such a plan and who contends that it is not a 'subdivision'
within the meaning of the law, because all of the ways
17
the Special Commission on Planning and Zoning, 1953 House Doc.
No. 2249, at 10-12, 54-55. Nonetheless, the plaintiff's
hypothesis is consistent with the presumption of access
underlying § 81L exemptions generally. It would have been
reasonable for the Legislature to presume that family compounds
were built to ensure vital access from the road to each dwelling
located on the lot, thereby eliminating the need for planning
board supervision. Cf. Gifford, 376 Mass. at 807. This would
explain why plans depicting such structures are entitled to ANR
endorsements, but it would not explain why a landowner should be
entitled to carve up the land without any regard to zoning
bylaws -- particularly in light of the long-standing 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.
shown on the plan are already existing ways, to submit it
to the planning board, and if the board agrees with his
contention, it can endorse on the plan a statement that
approval is not required, and the plan can be recorded
without much more ado" (emphasis supplied).
1953 House Doc. No. 2249, at 54-55. This explanation suggests
that each of the § 81L exemptions sprang from the same
reasoning: that where the law's underlying purpose of access is
presumably met, planning board oversight is unnecessary. This
was not intended to effect a sea change in the scope of
subdivision controls. Rather, it was intended to clarify the
boundaries of planning board oversight and avoid confusion among
conveyancers as to whether the subdivision control law was
applicable and, if so, whether it had been followed. Id. at 10-
12, 54-55.
18
Serena, 27 Mass. App. Ct. 689, 690 (1989), S.C., 406 Mass. 1008
(1990) (collecting cases).
Although land divided pursuant to the existing structures
exemption is likely done with the goal of alienating the divided
lots, the same may be said of nearly all divisions of land,
including divisions pursuant to the frontage-based exemption
found in § 81L. In Arrigo v. Planning Bd. of Franklin, 12 Mass.
App. Ct. 802, 807-808 (1981), the Appeals Court held that
although a planning board may waive the specific requirements of
§ 81L's frontage-based exemption, see G. L. c. 41, § 81R, that
waiver is only valid to the extent that zoning compliance is
required to qualify for an ANR endorsement. A planning board
has no authority to "preclude a building inspector or board of
appeals from performing their statutory duties of requiring
adherence to the town's zoning by-law." Id.
The Appeals Court's analysis in the Arrigo case is in
accord with the legislative history of the subdivision control
law. One of the reasons for the 1953 revisions was that
"[i]t [was not] sufficiently clear that the application of
the law [was] limited to regulating the design and
construction of ways in subdivisions, and some well-
intentioned but overzealous planning boards ha[d] attempted
to use their power of approving or disapproving plans of
proposed subdivisions to enforce conditions doubtless
intended for the good of the public, but not relating to
the design and construction of ways within subdivisions;
and it [was] said that some town counsels ha[d] approved
this usurpation of power."
19
1953 House Doc. No. 2249, at 10. The drafters were clearly
concerned that the subdivision control law might be manipulated
to encroach on other land use authorities. Consistent with
these concerns, the Arrigo court explained that landowners
"seeking to make two building lots from a parcel lacking
adequate frontage . . . are required to obtain two independent
approvals: one from the planning board, which may in its
discretion waive the frontage requirement under the criteria for
waiver set out in G. L. c. 41, § 81R, and one from the board of
appeals, which may vary the frontage requirement only under the
highly restrictive criteria of G. L. c. 40A, § 10."14 Arrigo, 12
Mass. App. Ct. at 808.
This dual approval requirement protects zoning bylaws as a
distinct regulatory regime independent from subdivision rules
and regulations. See Beale v. Planning Bd. of Rockland, 423
Mass. 690, 697 & n.10 (1996). The independence of these two
14
General Laws c. 40A, § 10, provides that the grant of a
variance shall be premised on a specific finding that
"owing to circumstances relating to the soil conditions,
shape, or topography of such land or structures and
especially affecting such land or structures but not
affecting generally the zoning district in which it is
located, a literal enforcement of the provisions of the
ordinance or by-law would involve substantial hardship,
financial or otherwise, to the petitioner or appellant, and
that desirable relief may be granted without substantial
detriment to the public good and without nullifying or
substantially derogating from the intent or purpose of such
ordinance or by-law."
20
regimes "is acknowledged, not only in G.L. c. 41, § 81M, but
also implicitly in § 81Q, which restricts subdivision rules and
regulations that might address matters within the scope of
zoning regulations." Id. at 697. In consequence, we have
cautioned that landowners "are deemed to be on notice of zoning
requirements, and are governed by them, without any need for
independent reference to the requirements in the subdivision
rules and regulations" (emphasis supplied). Id.
The notion, therefore, that a division of land would bestow
immunity from zoning compliance simply because it was exempted
from planning board oversight strikes us as abrasive to the
independent character of these regulatory regimes. See Alley,
354 Mass. at 7-8; 1953 House Doc. No. 2249, at 11-12 ("The
purpose of the bill as now drawn [is] . . . [t]o clarify the
language of the act, especially in some particulars where
overzealous city planners have attempted to extend their
authority to an extent greater than was intended by the framers
of the law"). Indeed, when the Legislature has sought to modify
zoning requirements as a result of the subdivision control law,
it has done so explicitly. Compare G. L. c. 40A, § 6 (zoning
freeze for ANR plans), with G. L. c. 41, § 81Q ("Except in so
far as it may require compliance with the requirements of
existing zoning ordinances or by-laws, no rule or regulation
shall relate to the size, shape, width, frontage or use of lots
21
within a subdivision, or to the buildings which may be
constructed thereon . . .").
Notably, the Zoning Act's grandfather provision
incorporates neither § 81L nor § 81P of the subdivision control
law. Yet, under the plaintiff's proposed rule, an ANR
endorsement pursuant to the existing structures exemption would
be tantamount to the grant of a variance. Such a result is
contrary to established precedent. See Alley, 354 Mass. at 7-8
(planning board endorsement under § 81P gave lot no standing
under zoning bylaw); Citgo Petroleum Corp., 24 Mass. App. Ct. at
427 ("just because a lot can be divided under [the existing
structures] exception does not mean that the resulting lots will
be buildable under the zoning ordinance"); Arrigo, 12 Mass. App.
Ct. at 807 ("It does not follow that the planning board is
authorized . . . to grant a variance").
We are persuaded that, unless otherwise provided in the
Zoning Act, the consequences of an § 81L division should be
confined to the regulatory regime of the subdivision control
law. Under that regime, an § 81L division qualifies a plan for
an ANR endorsement. See Citgo Petroleum Corp., 24 Mass. App.
Ct. at 427. We have explained that an "ANR indorsement serves
merely to permit the plan to be recorded . . . and is not an
attestation of compliance with zoning requirements." Cornell v.
Board of Appeals of Dracut, 453 Mass. 888, 892 (2009). It
22
follows, then, that the mere fact that the new nonconformities
in this case arose pursuant to an § 81L division did not mean
that those nonconformities were entitled to grandfather
protection under the Zoning Act or otherwise were excused from
complying with the town's zoning bylaw. See Citgo Petroleum
Corp., 24 Mass. App. Ct. at 427. As in Arrigo, 12 Mass. App.
Ct. at 808, the owner of the original tract was required to
obtain two independent assents to his project: an ANR
endorsement from the planning board and a variance from the
zoning board.
This interpretation does not render the existing structures
exemption meaningless. Qualification for the exemption entitles
a landowner to an ANR endorsement and a concomitant three-year
zoning freeze. See Marashlian, 421 Mass. at 725 n.9. See also
G. L. c. 40A, § 6. Moreover, the recording of a plan with
zoning violations "may be preliminary to an attempt to obtain a
variance, or to buy abutting land which would bring the lot into
compliance, or even to sell the nonconforming lot to an abutter
and in that way bring it into compliance." Smalley v. Planning
Bd. of Harwich, 10 Mass. App. Ct. 599, 604 (1980). Although the
plaintiff casts such variances as "usually unobtainable," she
enjoys the benefit of one in this very case.
As explained by the Land Court judge, the new
nonconformities arising from the creation of 87 Main Street were
23
rendered lawful by the 1995 variance -- not by the subdivision
control law's existing structures exemption or the Zoning Act's
grandfather provision. The proposed reconstruction of the
dwelling thereon would have expanded those nonconformities and,
consequently, required a new or amended variance from the town's
zoning bylaw. See Mendes, 28 Mass. App. Ct. at 531-532 ("In
view of the different approaches to the grant of a variance and
a special permit, the former grudging and restricted, the latter
anticipated and flexible, we do not think the Legislature
intended in G. L. c. 40A, § 6, to authorize the expansion of
uses having their genesis in a variance pursuant to the more
generous standard applicable to a special permit" [footnote
omitted]). See also Rockwood, 409 Mass. at 364; Deadrick, 85
Mass. App. Ct. at 547. Because the plaintiff does not appeal
the grounds on which that variance was denied, we need not go
further.
Judgment affirmed.