Louis J. Vetter vs. Zoning Board of Appeal of Attleboro

Massachusetts Supreme Judicial Court1953-12-09

330 Mass. 628

Summary · law.co

Holding. The court affirmed the zoning board's decision to uphold the building inspector's refusal of a permit and to decline granting either a special exception or a variance.

A landowner in Attleboro sought to build a dwelling on a parcel that, at the time the zoning ordinance took effect in 1942, consisted of two separate lots totaling approximately 12,793 square feet. The ordinance required all new single-family dwellings to sit on lots of at least 12,000 square feet. The landowner later sold one of the two lots and wanted to construct a house on the remaining lot, which contained only about 6,000 square feet. The landowner argued that an exception in the ordinance should permit construction because his land adjoined other land he owned at the ordinance's effective date. The building inspector denied a permit, and the zoning board upheld that denial while refusing to grant either a special exception or a variance.

The court rejected the landowner's interpretation of the exception. Although the landowner's combined parcels exceeded 12,000 square feet when the ordinance took effect, the exception was designed to protect owners who held a single tract smaller than 12,000 square feet at that time. The court determined that the relevant "lot" under the ordinance referred to the actual physical property as it existed on the effective date, not to the subdivision shown on assessors' plans. Because the landowner's property as it actually existed on the effective date did not qualify for the exception, and no basis appeared for granting a special exception, the board's decision to deny the permit and refuse a variance was proper.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Interpretation of zoning ordinance exception for pre-existing nonconforming lots
Whether lot boundaries are determined by assessors' records or by actual physical configuration
Application of zoning restrictions when property is subdivided after ordinance effective date
Scope of variance and special exception authority

Procedural posture

The landowner appealed from a Superior Court decision that declined to annul or modify the zoning board of appeal's decision.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Qua, C. J.

This is a bill in equity brought in the Superior Court by an owner of land in Attleboro by way of "appeal” from a decision of the board of appeal. G. L. (Ter. Ed.) c. 40, § 30, as appearing in St. 1933, c. 269, § 1, and as amended by St. 1935, c. 388, §§ 1 and 2, by St. 1941, c. 198, §§ 1 and 2, by St. 1945, c. 167, and by St. 1951, c. 205. The board upheld the inspector of buildings in his refusal of a building permit to the plaintiff and declined to grant either a “special exception” or a variance. The Superior Court declined to annul or to modify the decision of the board. The plaintiff appeals.

The zoning ordinance of Attleboro took effect on February 10, 1942. Section 12 of the ordinance, in so far as need be stated for the purposes of this case, read, “In single residence districts . . . there shall be provided for each dwelling house . . . hereafter constructed, altered or placed, a lot containing not less than . . . twelve thousand square feet . . . and hereafter no dwelling house . . . shall be erected or placed on a lot containing less than such minimum area; but nothing contained in this section shall prevent the erection or placing of any building on any lot . . . containing a smaller area, provided such lot on the effective date hereof does not adjoin other land of the same owner available for use in connection with said lot.”

“No lot on which a dwelling house . . . is situated, whether heretofore or hereafter placed, shall be reduced in area if such lot is smaller than is hereby prescribed, or if by such reduction it would be made smaller than is hereby prescribed . . ..”

There were also provisions for “special exceptions” in certain circumstances which need not be set forth in detail.

At the time when the ordinance took effect the plaintiff was the owner of a tract of land on the northerly side of Payson Street in an area which was restricted by the ordinance to single dwellings to be located on lots not smaller than 12,000 square feet. The plaintiff’s tract contained 12,793 square feet. It was composed of two so called lots shown as lots 11 and 12 on “New Plat #49 on file at the Assessors’ Office.” Each “lot” contained slightly more than 6,000 square feet. The plaintiff had acquired these “lots” at different times from different sources. There was a dwelling house and garage on “lot 11.” There was only a garage on “lot 12.” In 1944 the plaintiff sold “lot 11” with the buildings thereon to one Morris. The plaintiff now desires to build another dwelling house on “lot 12.”

It is plain that any house now built by the plaintiff on “lot 12” would not be provided with a lot containing not less than 12,000 square feet as required by the ordinance for any dwelling house thereafter erected. But the plaintiff argues that he should have the benefit of the exception in § 12 of the ordinance that the section shall not prevent the erection of any building on any lot containing a smaller area if such lot on the effective date of the ordinance did not adjoin other land of the same owner available for use “in connection with said lot.”

The difficulty with this argument is, we think, .that on the effective date of the ordinance the plaintiff’s lot did not contain a smaller area than 12,000 square feet. His lot was then composed of the two “lots” shown on the assessors’ plan, contained slightly more than 12,000 square feet and had one house upon it. There is nothing to show that any part of this tract had been physically walled off or separated in any way from any other part, if that would make a difference, which we do not decide. The plaintiff’s argument would require us to construe the word lot as used in the exception in § 12 as referring to a lot which corresponded with some “lot” shown on a plan in the assessors’ office rather than to the lot as it actually existed upon the surface of the earth. We find nothing in this record to suggest that lots under the ordinance were to be determined by assessors’ plans or assessments or according to sources of title. It would seem to us that an attempt to do this might lead to confusion in the enforcement of the ordinance.

The idea behind the exception in § 12 of the ordinance, even if obscurely expressed, seems to us to have been to save a person who at the time when the ordinance took effect had a vacant tract of a total area less than 12,000 square feet from the hardship of not being able to use it at all for residence purposes.

The result is that when the ordinance took effect the plaintiff’s land, like other land in the zone not within the exception, became subject to the restriction that he could not build a new dwelling upon it without providing a 12,000 foot lot for the new dwelling.

There is nothing in the record to show that the plaintiff comes within the class of those who may be allowed “ special exceptions” under § 12.

It was for the board to decide whether a variance ought to be granted.. No error appears in its refusal.

Decree affirmed.