|Thomas O. Moriarty is a principal in the law firm of Marcus, Errico, Emmer & Brooks, P.C. He is a trial attorney whose practice concentrates in land use, real property, community associations and related matters. His firm represents approximately 1,600 community associations.
Many court battles turn on the precise interpretation of ambiguous and sometimes obscure legal phrases. But sometimes the language of a statute means precisely what it says.
In the recent decision in the matter Marinelli v. Board of Appeals of Stoughton, 440 Mass. 255 (2003), the Massachusetts Supreme Judicial Court found the plain language of General Laws chapter 40A, section 6 to be quite clear in a suit questioning whether a parcel of land was grandfathered and therefore exempt from zoning changes.
The court effectively held, among other things, that the common lot exemption set forth in section 6, which "does not apply to more than three" adjoining lots, is not lost simply because an owner may have owned more than three adjoining lots at the time of the zoning change.
In relevant part, chapter 40A, section 6 provides:
Any increase in area, frontage, width, yard of depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date . . . to a lot for single and two family residential use, provided [that] . . . such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of [Jan. 1, 1976] . . . provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership.
As discussed further below, in answering this question the Marinelli court also endorsed a straightforward and practical method of applying these provisions when more than three lots are in play.
Livio Marinelli owned the contested lot (Lot C) and at least three others, all approximately 25,000 square feet in size, located in a Stoughton subdivision. The zoning rules in place when Marinelli acquired the properties required a minimum lot size of 25,000 square feet for the construction of a single-family home. However, in 1996, the town amended its zoning bylaw to increase the minimum lot size requirement to 40,000 square feet.
Livio transferred Lot C to a realty trust in February 1996, but he was still the owner of record when the new zoning rules took effect as the February 1996 deed had not been recorded. A few months later, Livio's son, Fred, signed a purchase and sale agreement to purchase the lot from the trust, contingent on his ability to obtain a permit to build a single-family home. The Stoughton Building Department denied the permit, claiming the parcel did not meet the new lot-size requirements. The Board of Appeals upheld that decision, but the Land Court reversed, ruling that the lot was entitled to grandfather protection under the zoning law and that the old lot size requirement (25,000 square feet) should apply. The board appealed the Land Court decision and the SJC took the case directly on its own motion to resolve the dispute over how the statutory language should be interpreted.
On appeal, the Board of Appeals argued that because Marinelli owned more than three adjoining lots none were exempt from the zoning change. Land Court Judge Karen Scheier, who heard Marinelli's appeal, concluded that the plain language of the statute should apply, and that language permitted only one interpretation: Where a plan includes more than three commonly owned lots, only three of them are eligible for grandfather protection.
The SJC agreed with that reading. Writing for the court, Justice Robert J. Cordy explained, "By its plain language, the provision does not exclude owners of four or more lots from the protection of Section 6 outright; it merely limits the number of lots for which any owner can obtain such protection."
The board had argued that its more restrictive interpretation reflected a recognition that owners of many lots are better able to configure them to comply with increased lot-size requirements. But the SJC countered that the town's position would produce "irregular and inequitable results - of which this case is a prime example."
Applying the town's reasoning, the court noted if Marinelli had owned four buildable lots originally, he would have had only two buildable lots after the zoning change. But had he owned only three lots initially, all three would have been protected from the new zoning rule. "If the legislature intended such a result, it would have said so with greater clarity," the court concluded.
Although this is a case of first impression, the SJC's decision reflects a straightforward interpretation of the statute that is certainly welcome, but not particularly surprising.
Applying the statute
The board did raise a legitimate issue concerning the application of the statute in determining which of the lots would be among the three exempt. The Land Court answered the question by holding that once three of the commonly held lots receive the benefit of the common-lot protection no additional lots are eligible for protection. That is, a first come, first served approach. The SJC endorsed this approach holding that as the subject lot was "among the first three to seek a building permit" the Land Court judge correctly ruled that the common ownership grandfathered protection of section 6 was applicable.
A question of standing
Among the many arguments the Stoughton Appeals Board advanced in defense of Marinelli's appeal, was the contention that Marinelli lacked standing to appeal the zoning decision. According to the board, Marinelli's purchase and sale agreement was invalid because only one member of the realty trust had signed it. Because he did not own or have a valid interest in the parcel, the board said, Marinelli was not a "person aggrieved" and thus did not have the required standing to bring his suit.
This argument directly raised the question of what amount or nature of evidence is necessary to rebut the presumption of standing. The decision appears to provide the first clear and unequivocal holding by the SJC on the question. The court held that in order to rebut the presumption of a plaintiff's standing, a defendant must offer evidence warranting a finding contrary to the presumed fact.
The SJC found that Marinelli, as an applicant, was entitled to a presumption that he had standing. As Marinelli's standing was premised upon the purchase and sale, the analysis translated into a presumption that Marinelli's purchase and sale agreement was valid and that he had an interest in the subject locus. It was not enough for the board to highlight potential deficiencies in the purchase and sale that supported Marinelli's interest. The board, in order to rebut the presumption, had to offer evidence warranting a finding that he did not have the claimed interest in the subject lot (i.e., that the purchase and sale was invalid).
Therefore, both the nature of the presumption in a zoning case and the evidence necessary to rebut the same have been clarified. The presumption of aggrievement clearly means that the fact or facts upon which a plaintiff relies in support of standing are presumed to be true. To rebut a presumption, a defendant must do more than challenge standing with additional evidence. A defendant must be able to "offer evidence warranting a finding contrary to the presumed fact."
It is interesting to note, however, that the board did not challenge Marinelli's ability (or standing) to act as applicant. The board challenged Marinelli's standing to appeal the board's decision to the Land Court. While Marinelli maintains the outcome would have been identical in this case, it is clear that the analysis would have been significantly different as Marinelli would not have benefitted from any presumption in connection with a challenge to his ability to act as applicant.
Marinelli was a plaintiff applicant in this case. The court's analysis may be limited by this fact. However, there appears to be no reason this analysis regarding the quantum of evidence necessary to rebut the presumption of standing would be different where a plaintiff is an abutter. If so, this unequivocal holding may make it more difficult to effectively rebut the presumption of standing in certain zoning cases.