RCA Dev., Inc. v. Zoning Bd. of Appeals of Brockton

121 N.E.3d 1117, 482 Mass. 156
CourtMassachusetts Supreme Judicial Court
DecidedMay 1, 2019
DocketSJC-12619
StatusPublished
Cited by1 cases

This text of 121 N.E.3d 1117 (RCA Dev., Inc. v. Zoning Bd. of Appeals of Brockton) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RCA Dev., Inc. v. Zoning Bd. of Appeals of Brockton, 121 N.E.3d 1117, 482 Mass. 156 (Mass. 2019).

Opinion

LOWY, J.

**156We 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.

**157Background. 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 *1119that 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 **158adequate 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, § 81O. 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. Therefore, his failure to seek such endorsement did nothing to invalidate the division. See G. L. c. 41, § 81P (no requirement to submit ANR plan if division is not subdivision).3

Discussion. We review the allowance of a motion for summary judgment de novo, considering the facts "in the light most favorable to the party against whom judgment entered." Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372, 376, 116 N.E.3d 17 (2019), quoting 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 699, 964 N.E.2d 318 (2012). Where, as here, the judge's decision is based on undisputed material facts, we will uphold the summary judgment decision so long as "the ruling was correct as a matter of law." Bellalta, supra, quoting M.P.M. Bldrs., LLC v. Dwyer, 442 Mass. 87, 89, 809 N.E.2d 1053 (2004).

The board argues that the Land Court judge erred in determining that the division of lot 46 did not require a subdivision plan, and that references to subdivisions in G. L. c. 41, § 81O, should be read to apply to both divisions and subdivisions. We conclude that the plain language of the underlying statutes and the 1963 Brockton zoning ordinance make clear that the division of lot 46 **159did not constitute a subdivision and therefore was proper despite no plan being submitted to the planning board.

The subdivision control law, enacted in 1953, applies to every municipality in the Commonwealth that accepts it other than Boston. See G. L. c. 41, § 81N ; St. 1953, c. 674, § 7. Under G. L. c. 41, § 81O, "No *1120person shall make a subdivision of any land in any city or town in which the subdivision control law is in effect unless he has first submitted to the planning board of such city or town for its approval of a plan of such proposed subdivision."

Under Section 81L, certain divisions of land are excluded from the definition of "subdivision" including, insofar as relevant here, a division that leaves every resultant lot with sufficient frontage on a public way to satisfy the local zoning ordinance then in place does not constitute a subdivision.4

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Cite This Page — Counsel Stack

Bluebook (online)
121 N.E.3d 1117, 482 Mass. 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rca-dev-inc-v-zoning-bd-of-appeals-of-brockton-mass-2019.