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0192 PARK AVENUE
5 �!,, y• ,' ,., ,; F, ,c;,y �r ...�_�;. s �._ _;:: .... - N - /�p `"vim© �� .+ : ....,' p+.m !• sr'. •,_ .y .-'Aa r.. ,. . -, a: 1 r .. ,. x. ". -_ ,.[r q.: t ,\+ S+oa.,'C� '>•'7 3 �." �iw! ii r 3s r)�&a .F ! iA .,. ..,. .. •.•._+- y' � ; ,.:;,. -:. + �.;, :� "y ra� x s' t., � `�n :t+.?i i•u.s. i.�.:�v„4 ..�,,,t� �.j; :3h 'f•? 'b a; F+s'z-.'•� __p �,. au.,,:'..3 .. .:.-�__..., ,.M1�, ..'. -•.,._a, :.. _, -. .... `.:. .,rM'•, 1. _,,�•�. k•�• t a �:y .K�,.. .••r. i r ...F" „tti a:: ,.�a s r.4...�e.'n ,. "`� , r tS t .• ,y aY 1 : : , e b: s 111� x q y. y c a , : f MYCOCK, KIEROY, GREEN & FORD, P.C. ATTORNEYS AT LAW P.O. Box 960 BERNARD T. KILROY 171 MAIN STREET SPECIAL COUNSEL ALAN A. GREEN HYANNIS, MASSACHUSETTS 02601 RONALD J.SEIDEL MICHAEL D. FORD TELEPHONE (508) 771-5070 MARK D. CARCHIDI OF COUNSEL EAURIE A. WARREN TELEFAx (508) 790-1954 EDWIN S. MYcocx MARIDETH KING y September 17, 1990 Joseph DaLuz, Building Commissioner Town of Barnstable 367 Main Street Hyannis, MA 02601 RE: Frank Horgan/Paul Bro Cn, A-207-021 Lots 30/31 and 32/33rd d, Centerville Dear Mr . DaLuz, This letter is to indicate to you the position of Mr .. Paul Brown and others regarding the issuance of building permits on the above referenced lots . These lots are not eligible for the exemption granted under section 4 . 4 . 5 of the Barnstable By-laws for the following reasons : 1 . The review of the deeds and transfers of this property from the 1945 deeding in to Mr. Frank Horgan Sr . indicate that lots 29, 30, 31, 32 and 33 have always been in common ownership up until the 1989 deeds . Section 4 .4 . 5 of the Barnstable By-Laws under non-conforming lots when exempted states any lot lawfully laid out . by a plan or deed duly recorded at the time of the adoption of such requirements or increased requirements or while building on such a lot was otherwise permitted, such lot was held in ownership separate from that of adjoining land. A deed duly recorded showing these lots in separate ownership was not made until 1989 . In addition, the by-laws define LOT as a single area of land in one ownership defined by metes and bounds or boundary lines . Lindsay v. Board of Appeals of Milton 284 NE2d. 595 ( 1972) states : "The mere fact that three subsequent deeds, which conveyed property as one lot, referred to an earlier plan which described the property as being two lots was insufficient .to give rise to presumption of intention to preserve the lots, for one of which a building permit was sought under bylaw exception for undersized lots in existence on certain date. " 2 . The merging of substandard lots (as the applicant for the building permits contends happened prior to 1989 making the lots still buildable as they met the requirement of 20, 000 square feet) completely ignores lot 29 . Lot 29 has the multi-family house on it and would have to merge with some of the area of lot 30 in order for it to become conforming . It is not possible for the Horgans to pick and choose which interior lot lines were eliminated in order to "create" buildability of certain remaining lots (30/31 and 32/33) and completely ignore the substandard nonconforming and noncompliance of Lot 29 . The common ownership gave the Horgans adjacent land within their power to merge the substandard lot 29 in order to bring that lot into greater compliance with the zoning by-laws . 3 . Finally, the exemption afforded under Chapter 40 Section 6 paragraph 4 applies specifically to a lot for single and two-family use.. Lot 29 (12 , 600 square feet) has a four family unit on it and therefore can not take advantage of this exemption. In addition, it can not be made more non-conforming and in greater non-compliance by deeding out and severing it from the land of lot 30, 31, 32, 33 . Lot 29 , by the criteria the Horgans are emphasizing ( i .e. that a merger had already taken place that qualifed the lots in question as buildable) and the assessor ' s field card is showing, and because of the lack of exemption protection found in MGL, must be merged with additional area . See Girard v. Board of Appeals of Easton, Mass App. 439 , NE 2d 308 ( 1982) For the three lot exemption, Girard states : "Another, more limited, exemption was added to the fourth paragraph of Sec. 6 by St . 1979 , c . 1066 . In applies only if a plan of the lot in question has been recorded, and as no plan of the lot in issue in this case has been recorded, rights, if any, under Section 6 are unavailable. " (emphasis added) As stated above, no plan of the alleged merged lots qualifying these lots as still buildable in Feb. 1985 was ever recorded. No deed showing these as lots that would meet the definition of LOT(S) as defined in the Barnstable by-law book was recorded prior to the change in zoning in 1985 . Therefore, for all the above reasons, lots 30, 31, 32 and 33 as shown on the 1927 plan are not lots that meet the exemption criteria of the Barnstable By-laws contained in section 4 . 4 . 5 , but rather have merged with Lot 29 . Accordingly, I request that you revoke the building permits previously issued for Lot 300/31 and 32/33 , Yours truly, Michael D. Ford 0150p Enclosures : Girard, Lindsay, 1971 Assessor ' s field card cc : Attorney Nancy Loeb (Parker, Coulter, Daley and White) Paul Brown is RESIDENTIAL PROPERTY' MAP NO. LOT NO. FIRE DISTRICT - SUMMARY- .STREET. Park Ave. Centerville LAND 3ocs., 207 21 OWNER C-0 D BLDGS. 31:T o 0 TOTAL LAND RECORD OF TRANSFER DATE DK PG .. I.R.S. REMARKSLOts:'29,30,31,32 &•Pt.33'. SLOGS. t p )� L� D, 7 l8 Y '602— .. TOTAL _ � LAND Horgan, Frank L.,Jr., Trustee 9-11-7t1 209Lt 301 voc anft 1 ac of SLOGS. _ TOTAL LAND — 1 Q Q' 01. SLOGS. . •r: TOTAL M - _ LAND-- _ BLDGS- - 4 x z 3 7f o TOTAL- Tr{�+i' " R'sa¢'E - V R z $N a ' r LAND Y�x.�� �- BLDGS t 4 - _ TOTAL - 33 LAND : . >. 3 a ray 4 „I. �* y ' ,r•: � . v'« F x �x ;,. _' dr BLD r w,YaT a, .j.•A.'z' iXs. tl~Y� .. .�.r.... ,.+: w. ,. . •.,.x.-a, a, .: a .,.,...,.5.. GS 5L -yLtt t a W- :'�,', "'^'�:.i�7a#'"i F-a'�•.'L K afiu^7b ��«b.,ty fib` ��_w "�?y+� m.. F r z INTERIOR INSPECTED: BLDGS' k DATE: '«'a_-�/., ,. .✓- I c iLpND.` 4 rt w°x n5 ra F .. .ACREAGE COMPU ATIONS •: : ' ..: ° l i ° SLOGS. a� LAND TYPE SC OF ACRES PRICE: TOTAL DEPR. VALUE _ TOTAL ;,s r f i' xf ";;d '-•x,(4 } tip.rt HOUSE LOT `. I• OOJ I OOO�,. LAND- CLEARED FRONTZ - ..BLDGS _ •r:th_ :.. �a p .: taI6 aY ", -'k`h."6y :� a 'a, •.r; ...., .:,. :.•i,>.s ..nk�!. ,. -.,, �"+ .w..,.:r: . .: •ifi, v„' t} ,..,.,.+s S`.•:; ,.I. za.: :':a; REAR r- ...�.' ., r .. .._..,..,yo,;,.,-*.::.. 5• -s 'I"."A TOTAt., ati.5�� ,f: - t�' f r "x,"'.�t•' SS4,•• WOODS 8 SPROUT FRONT IAND �•, - '•`•F 7ti^La t L..'- $ r.' .s :y'N_ •1 :y g�i u 'w'�,•4". �. ..�Y: "•_,.d.. .e;S ,, ::'... :., ";•, ." :• ......, .b ,.'t.• .BL064: h a ,a::.r�•,, rf �: -L ;. .:- REAR t .;f. .., -•a .:.. .-. tt.'x. -: ,ar_. ., + y,a,a .z. ?n• '# '� r ° : WASTE FRONT :. r, as.. .. :. t -,,�.. „•.. .' •.. t ":n s:.er: TOTAL r:, '�t,w .. }i LAMD REAR •n+. '+� .:L.:-*.nt�'y,., x ,�-•.->' �t _ ,: � •ac r `+:fir T'Iv_te)4'4oh .' p ;�5, �.�= i ,t ,,.�. a'°s ���•' ,$�,:s. :v n, ..e. t •n'��A' 2K�`+'i`b F, '0. ..� •':a' :� t..... r LDGV ,. .._ ::. _ -... ,. C ' yt. .3 :,i« ;c•,-.e:r y..:.>�� ,. .a syv ..cn: a .rl r-*-• :`+ ......�•.. ...- ... . w• <. .„ .., - r T, r.: 1: _ OTAL_ ,r"r x :+4-,TMro '.. "t ...}' ;.>:�y � :'rT..,i�:. ^'!3,...:-..�7.;�r;�n �' 1,,r. .LAUD ~vr .:$; s•3v � �., .s �`- ; L'Srr tv..-...,5•, •L .-;� +r.d .•3 IG 1 �r .7. `' •{a ,y,.k, .d .S m` LOT COMPUTATIONS - -LAND FACTORS'`' '' - TOTAL i T,•. T " ^ �' ,� -'°�,,,y �"�� '�._n 'FRONT...-. ,DEPTH W .STREET PRICE DEPTH 96 FRONT FT,PRICE. ..TOTAL DEPR. COR.IMF. VALUE, *"'' -.." - ..� - � ,. .'Ir r rX+l l.ti{' "1 '.,u'`4;�a+r'a'x 1'*a`" 3 a x• ... HILLY:_ TOWN-SEWER "rr"''.; tt.. ;t I G LAND $ �y. + '4.4'. 6g k BLD69 OL1GH TOWN'.N/ATERa'�- ' a to ...a::£'. ,.- • ..a �.::s, s.';rr-i,.. ,<, 14. HIGH: x c.?i,.; `-' ORA -a• ,e+ ,nX i.10fACs"'" k ,i•,^:5` t,.�'sz�• � F.$ a t -e. VEL=RD a` Hy LOW'' a-'C '.�. -; - •,:; ,:.:- -SWAMPY NO w,aY,� TOrAI' r x �.� � ^'� p ¢•� }�- :'.$ -�. +ia^t: dY•«.5•r,�e4a. .a* '�.x�,r-.: ; �a�t I i. ��� aT at 1�VN:OE_B_w N ABLEr•MAS��z:.�.w._.xi�;;C=,_a: z'� t~�`X-��.,�,uNinD�rPLUIBA ws« DRD CONN«,•� :+7. 'y FOUNDATION BSMT. & ATTIC PLUMBING PRICING LAND COST. - 1 - - Cone.Walb Fin.Bsmt.Area Bath Room Base _• - I - BLDG.COST Cone.Blk.Walls Bsmt.Rec.Room IVLe St.Shower Bath Bsmt. — /G• - - PURCH.DATE Cone.Slab Bsmt.Garage St.Shorer Eat. Walls PURCH-PRICE. Brick Walls Attic Fl.8 Stairs Toilet Room Root - RENT - - - Stone Wails Fin.Attic C/L L Two Fiat.Bath Floors - P,er_ INTERIOR FINISH Lavatory Extra 7Z N'/'C //'�j� �'�'`t• .. - « - Bsmt. F _ '1' 23 Sint v I - h •-rh Plaster Water Cto.Extra Attic EXTERIOR WALLS KnottyPine 11A Water only Double Siding PlywoodI I No Plumbing - Bamt.Fim. .. Single Siding Plasterboard - Int.Fin. 77 ` /6�jQ - -Shingles f ? TILINGG /� /ttwcC•:� T //G - Z'1 p} Conc.Blk. G F P Bath Fl- Heat J- Face Brk.On O.Layout Bath Fl.6 Wains. Auto HL Unit -�- -y' - _ i Veneer Int.Cond. Bath 6 Walls Fireplace Com.Brk.On HEATING Toilet Rm.Fl. Plumbing - olid Co. Brk. Hot Air Toilet Ran.Fl.6 Waios. + 7 S Tiling Steam Toilet Rm.FI.8 Walls Blanket Ins. r Hot Wate n % SL Shower Root Ins. / Air Cond. Tub Area Total - - Floor Fur_ ROOFING - ROOFING ON COMPUTATIONS - _ - ASDh.Shingle Pipeless Fum. - /(e oZ S.F. yJOSt o .a 4 7 s Wood Shingle - No Heat - - S.F. 1 y..•'... fi u, .S':... • 4 Asbs-Shingle' Oil Burner -- ?S.F: : - ,s , +e a "$•-�... s, t :.,,r,, 9 Y� 1a r Slate Coal Stoker S.F. ...-. Tile - Gas - - A F. - OUTBUILDINGS a ROOF TYPE. Electric, - S.F. 1 2 3 4 5 6 71819110 1 2 3 4 5 6 7 8 9tMEAR Cable Flat _ Pier Found. ,Flom .• S`s v t H,p> Mansard iE FIREPLACES S.F. ... '.<C ws wA a a Gambrel - FireDlaw Stack �, ._ WaD Found.,: - o.H.Door „�ate'" ,a '.rwrrys' ,�.P 5, r � � �.FLOORS Fireplace _-S81s Sdg•?a± Roll'Roofing Cone. LIGHTING - " Dble$dg.`Y` Shingle RootNo Elect. ,_ a Shingle WaW Plumbing Hardwood ROOMS , Cement Bak. Electric AspA.'Tile esmt-.,., - lst8 .. TOTAL , ,-, y0'.J 0' 8nd Int Flniah p, , "- �e i;+- ;� P ICED Single 2M 3rd FACTOR - y 0 J�.' 3: : J' ,7? _."/.,. F a. s ,�t��4 ,yam .r <,�5+ : REPLACEMENT Nr:/J .>.J•.:si ..:: .:. ...-. N:• iLy ..h t' -R; t h t{q'..•�'.";.,rh fl, w OCCUPANCY"""'�•� CONSTRUCTION SIZE AREA rLAS AGE REMOD. COND. REPL.VAL. Phy.Dep- PHYS.VALUE Fund.Dep.ACTUAL VAL y r" 3* owLG- b-._r e:: yY2'.. '� .•,, '� • :3 � � is �. .,::.. •r'" :'l'` r, � :.i cc,,.=f~'' a '.,�t+rM *S$ ,r<s<,iete,. .r ,,ee -�z:, s,. :k :k ` �3 rk� � oi 'w, < 1'ts, a m;. r<x+'1„ .t ,✓ ,�"�. k ;:, "rc .s:,. , .+ �?; �t ;r.:..;'�`¢ i:"t.,A r ; 9 ,+,, .-� .. 4 5 r.a$." .•�� { � ! �!F �'F° ''��`rs, iit�5'„��i. FtA r�� z� ��3 •`�'�r„t'a; a 10 r t TOTA4r s s t 'xr1,. $• � ,¢,F. T�r '}ra ..-+:,. . . ..... 4,'�;. ..-:..$... l ., . "Y. :.M- i k.$,w. :yl: e 4 d k. 4 1•,{ P kkI .. .z*,.,: ..:. .a C',..: :�. ',;, .._:. :.-,. it -,,� :t- ,..., r....T- _ .:a,y a:',��. i .:eu' '.r:. s ,4. .7 e'�.">N ..,3K r� ........m.• ..... ^'� .. . .. ,,•.,.-,, r �'#._ ,.. .::.,. ` ..�. .. ,4 .., -. : r..c+ _'t, �-3 S.'- 'r .::•n,. ri 4,:. ,, ...,. >Pr,�..n, +f. :. ..:t t .w�„ -,.a„. :.s. -Mp*J .,. ..: .r, f..r. _"�..... .._:.. ._,.• "x. .,.5'.e >. ,.- -- a C�``e..e .., -`S. '�''1', t°•r.. t. .F, rn. tI'.-•. � �.:;... ; y -�IY.c ....xt.. ._ =.,•• .. ._ :. -.. ..-. 4 ...,.s�+t•.i;r., '� '?r:. w.r..- _.:,. ,,,.:. ..,je. r,;a '. Y i•,n,::'�T�'t'f'r?.�. ';ems•,' w � ,,... -L'- k..�7.. r�c:c., . .�,•�.� .,• .. -, .,b . � -. -�. :rat_: ,� f:, s :x ,.; � '�;:�»,,... - �� .,.;+y'<� ,,,o:;.-,x°� t�.�' '� .i +.ear• 'w,SY +v= •.�.a, � ,. •: .. .. , �,,. ..,^,.� ,.: ram;.._ ..,• .` .,.!-. �,�w na r .., ��tx'Y:..r �k ?a�ys" "�.�4:: j '•� ,py' ,,{ v;.,...q},{,ug`e..LL,.., .$ ,-.-.., :. .. t {_ ,:F, •-t.. NY.*+..,..: .,-kl.�tl� �•r4 ,.A,., C7 4. 7,I'efY.%t ,Y r .: �_=3.. . .,�, -....--.. .: s _ r.,3;.• .P.Y,-�s:�..t" t',:=" •-.._: ,. `{.,. ... . r�s'rt.-�e ,- t�.:<. .. e •t'y'- v.'�. ..si.'Y�,..�� ..= r�,r,,.rd' .� ,.'d-:. . .,r. .,,;.I_44 L•. .. .;..... ..:..... i ..t:,^p ,.- ...e::,,. -.�,+• ,pt �«..3:: ..4�,...:.-Ri ,'t.- ..n.a. {,,...T�'. +`t4'� - .s-:.�tr,k. ': .£.: >„i..< '::F` pt..,:, c.-,;-,:,: �� ,a �-,a, ,q t,rT •y,,, :: 't sf' »� y, - .. ' LINDSAY v. BOARD OF APPEALS OF MILTON Mass. %595 r Mass. 284 NORTH EASTERN REPORTER, 2d SERIES 594 j Cite as 284 N.E.2d 595 ' The instant case, however, is readily dif- ranted, ordinarily recovery can be had for 1 minimum required for single-family dwell- the fair and reasonable value of labor and. 'ferentiated from the cases cited by both { Bernard C. LINDSAY et al., trustees, ing, conveyed both lots as one parcel, new materials. The party at fault should not the plaintiff and defendant. After the lot had been established and prior under- V. j sized lot had not retained separate identity be permitted to break the contract and yet plaintiff had broken the contract, the de- BOARD OF APPEALS OF MILTON. required to come within zoning bylaw ex- retain the benefit of the contract by way fendant continued to perform, and, in fact, ce tion. ermitting dwellings on.undersized 1 of limiting his damages to the contract submitted bills for work completed after j Supreiue Judicial Court of �Gissaehusetts, P P a i \orfnllc• lots recorded at time of adoption of bylaw. price. Bailey v. Marden, 193 Mass. 277, the breach. The master found that the in 1935. ILG.L.A.c.40A §§ 5A>21• 279, 79 N.E. 257. Philadelphia v. Tripple, amount of work remaining to be done was Argued April 7, 1972. ' i negligible, and that the entire balance on -Al See publication Words and Phrases 230 Pa. 480,488, 79•A. 703. the contract was due. The defendant in Decided .June 14, 1972• for other judicial coustruetions and definitions: The defendant, on the other hand, his counterclaim alleges that he did a "sub- argues that he may recover on quantum stantial portion of the work," ( Plaintiffs appealed from denial by 3. Zoning a385 meruit on.the basis of a line of cases be- and in his brief admits that the construc- board of appeals of building permit for I ginning with Fitzgerald v. Allen, 128 Mass. tion was "substantially complete, with only T Mere fact that three subsequent deeds: single-family dwelling and construction of which conveyed property, as one lot, re- ' 1 232, 234. There it was said: `The result extremely minor finishing and corrections i garage. The Superior Court, Bennett, J., r of the cases is, that, if the special contract to be performed." ferred to earlier plan which described the 6 annulled board's decision, and board ap- property as being two lots.was insufficient ' g I is terminated by any means other than the pealed. The Supreme Judicial Court, Tau- voluntary refusal of the plaintiff to per- The facts of the instant case closely re- to give rise to presumption of intention to,., f ro, C. held that zoning bylaw defining r:f form the same upon his part, and the de- semble the situation facing the court in J'' preserve the lots, for one of which abuild li lot" as "a single area of land in one own- ing permit was sought under bylaw excep- r fendant has actually received benefit from United States for Use and Benefit of Har- ership" laid out by metes and bounds "in a the labor performed. and materials fur- kol, Inc. v. Americo Constr. Co. Inc., 168 tion for undersized lots m existence on recorded deed or on a recorded plan," certain date. 11I.G.L.A. c.40A § 5A. (: nished by the plaintiff, the value of such F.Supp. 760, 761-762 (D.Mass.), where it meant the most recent recorded deed or labor and materials may be recovered.upon was held that a subcontractor could not re plan, and where 1967 deed to plaintiffs, 4. Deeds Cr 93 a count upon a quantion meruit, in which cover on a quantum meruit but was re- who were seeking building permit for por- Every deed.is to be construed, insofar case the actual benefit which the defendant stricted to the contract price. The court receives from the plaintiff is to be paid there rejected the plaintiff subcontractor's tion of property which had been conveyed to established rules to construction permit, . for, independently of the terms of the con- theory of recovery because "it did not as separate lot prior to 1945 and which to give effect to. intent of the parties as �) contained less area than minimum required manifested by the words used. tract. The contract itself is at an end. Its abandon performance, nor did it enter into for single-family dwelling, conveyed both —. stipulations are as if they had not existed." a new contract or,implied contract for the lots as one parcel, new lot had been estab- j _accord, Connolly v. Sullivan, 173 Mass. 1, fair value of its services as the price of lished and prior undersized lot had not re-. Robert D. O'Leary, .Town Counsel, for i}} 33 N.E. 143, and Bailey v.-Marden, 193 not treating defendant's breach .as total. tained separate identity required to come defendant. 4 Mass.-277, 279, 79 N.E. 257. In Dalton v. Even after the job was completed within zoning bylaw exception permitting. iittin ' Richard C:..Driscoll, .Jr.,, Braintree,_ for American Ammonia Co., 236 Mass. 105, plaintiff recognized the contract, and dwellings on undersized lots 'recorded at plaintiffs. } 108, 127 N.E. 501, 505, it was said: "When sought payment thereunder.,, time of adoption of bylaw in 1938. j such a.contract is broken by the defendant Before TAURO, C. J., and SPIEGEL; without the plaintiff's fault, and the latter, We are of opinion that the holding in Reversed. \ the Americo Constr. Co. case is sound REARDO . , BRA1 CHER and;HENNES I disaffirming the contract and considering SEY, JJ. end, sues for the value of the sere- The defendant is limited to recovering the it at.an e I. Zoning G�231 t ices rendered upon a quantum meruit, he amount still due under the contract, plus Zoning bylaws must he construed rea- may recover the full value of his services certain extras. The master found this sonably. TAURO, Chief Justice: �! independent of the contract price, as if the amount to be$6,778.41. i 2. Zoning Ca233,385 agreement no The defendant board appeals from a fi- s special did t exist; and the nal decree of the Superior Court annulling P g The final d i A new de- contract,pace is important only as bearing decree reversed. Zoning bylaw defining "lot" as "a sin- the board's decision which affirmed the de- on the true value of the services rendered." cree is to be entered: (1) on the counter- I le area of land in one ownership" laid out nial of a building permit to the plaintiffs This appears to be consistent with the bal- claim adjudging that the plaintiff is indebt- I)v metes and bounds "in a recorded deed for construction of a single family dwell- ance of judicial opinion in other jurisdic- ed to the defendant in the sum of $6,778.- or on a recorded plan," meant the most re- ing and garage upon the locus in Milton. ` bons: :\1cCormick. Damages, § 166. Re- 41, with interest, and ordering the plaintiff cent recorded deed or plan, and where 1967 We have before its the evidence in the case statement: Contracts, § 347, comment c. to pay said sum to the defendant; and (2) deed to plaintiffs, who were seeking build- and the judge's report of material facts. \villiston, Contracts (3d ed.) §§ 1459 and dismissing the bill. ing permit for portion of property which 1485. 98 C.J.S. Work and Labor § 66(4) had been conveyed as separate lot prior to The following pertinent facts appear So ordered. 1945 and which contained less area than from the record: On :April 14, 196i, the .w . 596 Mass. 284 NORTH EASTERN REPORTER, 2d SERIES I LINDSAY v.BOARD OF APPEALS OF MILTON Mass. 597 Cite as 284 N.D.2d 595 :i plaintiffs acquired the locus as a part of as a "straw," executed a deed conveying Subsequently, on July 20, 1967, the board The issue is whether, for zoning purposes,' >_, t affirmed the action of the building com- the plaintiffs, by their deed, acquired sepa- "[a] certain parcel of land" from four the land back to her transferor and six missioner. The plaintiffs appealed to the rate lots or a single lot consisting of two members of the Murdock family by a quit- other Murdocks. This second 1945 deed P PP claim deed recorded at the Norfolk County identified the property, in the manner of Superior Court. G.L. c.40A, §21. former lots 1 and 2. registry of deeds. The deed describes the the 1967 deed, as being "[a] certain parcel The provisions of the Milton zoning by- On this question, the board ruled that parcel as "situated on Canton Avenue in of land" with one metes and bounds de- law involved in this case are as follows:, the execution of the second 1945 deed Milton being Lots 1 and 2 on.a scription and one area.3 Both 1945 deeds The definition of "lot" states: "A `lot' is a served to extinguish lots 1 and 2 and to es- plan dated October, 1903, a copy were duly recorded. A 1947 deed, also single area of land in one ownership tablish a new lot combining the area of the f of which is recorded duly recorded, between members of the [laid out] by metes, bounds .or predecessor lots. The trial judge, after de and bounded and described [by certain Murdock family, contained the same de- boundary lines in a recorded deed or on a novo review under G.L. c. 40A § 21, metes and bounds and with a single area]' scription as the second 1945 deed. The ( recorded.plan. . . . [N]ew lots may reached a different conclusion. He ruled according to said plan." The locus is lot 2 Murdock property was assessed as one lot be established by recording the same or by that "the deeds [executed] subsequent to as shown on'the recorded 1903 plan, and it. beginning in 1933. filing with the Building Commissioner 1938 did not serve to establish a new lot 6i contains a shed but no other building. a i On April 26, 1967, approximately two [a] plan defining the, within the meaning of the [zon- There was a dwelling on lot 1. weeks after acquiring the Murdock proper- lot by metes and bounds." Section VI, A, mg by-law]." upon appeal to this court, that the Lots 1'and 2 as shown on the recorded ty, the plaintiffs applied to the Milton 1, governing minimum area and frontage, the defendant board contends I i 1903 plan first came under the same own- building commissioner for a permit to con provides in part: "[N]o dwelling shall be judge's ruling was legal error. We agree. ership in 1920 when Carrie E. Murdock, struct a single family dwelling and garage erected or maintained except on lots as 1 2 1.. We are of opinion that the 61 the owner of lot 1 since 1910, acquired title on the locus (lot 2 on the recorded 1903 hereinbefore defined, or on lots established [ ] t y P deed b which the plaintiffs acquired the !' to lot 2. The 1910 and 1920 deeds, both plan). The plaintiffs' application was de- after this by-law is adopted, as hereinhe- Y 't duly"recorded, respectively described lots l nied by letter dated May 1, 1967, on the fore provided, containing not less than Murdock property does not entitle them to and 2 by metes and bounds according to ground that the locus did not constitute a 40,000 square feet and a front- have it treated as two lots for zoning p�r- the 1903 plan. On April 27, 1945, Mrs. buildable lot under the town's zoning by poses. - age of not less than 150 feet, and not more "Zoning by-laws must be construed of Murdock transferred title to the two lots to law. While an appeal was pending to the than one dwelling shall be erected on each reasonably." Green v. Board of Appeal e- ' c one. Norwood, Mass., 263 N.E.2d 423.E In de- Gladys P. Leavitt by a single deed which defendant board, the plaintiffs on July 7, such lot except that O fining "lot" as "a single area of land in contained separate metes and bounds de- 1967, deeded the remaining portion of dwelling may be erected on a lot contain- g �? scriptions and separate areas for each lot.2 former Murdock property (lot 1 on the ing less than 40,000 square feet, or having one ownership [laid out] by " On the same day, Leavitt, probably acting recorded 1903 plan) to a. third party.} a frontage of less than 150 feet, if such lot metes [and] bounds in a record- was recorded at the time of the adoption ed deed or on a recorded plan" (emphasis 1 I. "Northwesterly by Canton 'venue, 153.f33 125.57 feet. Containing 19,238 of this by-law [January 29, 1038]" (em- supplied), we believe that the framers of the zoning by-law meant the most recent feet; Northeasterly by land now or for- square feet phasis supplied)5 See G.L. c. 40A, § 5A, g Y Frederick A. whitwell, 208.71 `'The second of said parcels being shown as amended throu h St.1961, c. 435, § I. recorded deed or: plan. This interpretation ff•t merly of Fred g and being bounded confirmed b .the second sentence of the on said clan g is co feet; Southeasterly by land now or for as Lot _ plan, Y merly'of J. Porter Holmes, 144.70 feet; and described as follows: Northwesterly: Since the locus contains substantially less definition which provides for the creation and Southwesterly be a private way lead- by Lot 1 as shown on said plan area (11,335 square feet) than the .mini- of new lots through the recording of deeds 1' ing from Canton Avenue . 202.44 147.L4 feet; Northeasterly: by land now feet. Area 30.573 square feet of land, or formerly of Frederick S. �Vhitw-ell mum area for new lots and has only about or through the filing of a plan with the more or less." 7S.45 feet; Southeasterly: by half (76.87 feet) the required frontage, a, town building commissioner. Compare land now or formerly of J. Porter Holmes 2. The deed provides in pertinent part na 144.70 feet; and Southwesterly: dwelling cannot be erected thereon unless Miller v. Board of Appeals of Brookline, follows: "I, Carrie E. Murdock, . . . by a private way leading from Canton the plaintiffs can avail themselves of the 356 Mass. 659, 661, 255 N.E.2d 365. The n of th e P. ,.,•; t with feet. (.ontainine n a licable to lots to existence i � . Leavitt 7G.S7 e� exce do plaintiffs' recorded -deed, and n grant to Gladys I Avenue P PP P >I 1 quitclaim obvenants two certain Parcels 11.,3:35 square feet." of land being bounded and 1938. It is conceded that the locus was a recorded 1903 plan, therefore is the proper described as follows c 3. The description is identical to that in lot separate and distinct from lot 1 in 1938. measure of what they purchased from the .t "The first of said parcels being shown the plaintiffs' deed from the Murdocks. I dated See footnote 1, yuprn. Compare with ns Lot 1 on a 'flan' westerly by Canton avenue . i i 1911:3, a copy of which plan the description in the first 1945 deed 5. Exceptions are also made for lots cou- 153.G3 fee[; Northeasterly by Lot 3, as [Wining more than 64.000 square feet, is retarded with Norfolk Deeds (footnote 2). shown on said plan. 130.26 feet; which may be subdivided in accordance and being bounded and described :is fol- Southeasterly by Lot #2, as shown on with the provisions of clauses (n) and (b) lows: Northwesterly: by Canton avenue 4. The property conveyed is described in said Plan. 147.18 feet: and of the by-law (not quoted). 15:3.C:3 feet; Northeasterly: by the deed as "a certain parcel of land Southwesterly by a private way, indicated I:ind formerly of Frederick A. R•hitwell being shown as Lot jfl on a on said plan as 'Right of way' a. \lassAdv.Sh. (1970) 1383, 1387. 1311.26 feet: southeasterly: plan dated 1903 1'_.5.57 feet. Containing 19,2aS by Lut 2 as shown on said plan . . . recorded with the Norfolk Coun- square feet of land according to said 147.18 feet: and Southwesterly; by a ty Registry of Deeds and North- private way lending from Canton avenue bounded and described as follows: North Plan... i u IN RE PAPANASTASSIOU'S CASE Mass. 599 1 EASTERN REPORTER, 2d SERIES 598 . Mass. 284 NORTH Cite as 284:Q.E'.2d 598 ever he judged necessary to assure the suc- ment within standard working hours and, `w. �Iurdocks. Since the deed describes the mg by-law is concerned. The only sensible j cess of his experiments, had authorization in exercise of his professional judgment, in property conveyed as "[a] certain parcel ' construction of the minimum area and I of land" and sets out a metes and bounds frontage requirement is that the, exception ! to conduct work outside his standard work- order to achieve a successful result, decid- of land" a of ,a single area, the effect of relative to undersized lots applies to lots ing hours, on day of accident had not com- ed to return to complete experiment after the deed was to convey one lot as that which not only were in existence in 1938 pleted particular experiment within stand- hours, trip to laboratory was in fulfillment the is used in the zoning by law. See but also have retained a separate identity. and working hours and, in exercise of his of obligations to employer, and chemist's' t rofessional judgment,' in order to achieve death from automobile accident during trip P j g Vassalotti v. Board of :\ppeals of Sudbury, See Vetter v. Zoning Board of Appeal of i a successful result, decided to return to was compensable as arising out of and in 348 l-Iass 638, 661, 204 N.E.2d 924 (similar Attleboro, 330 Mass. 628, 630, 116 N.E.2d 1{ com lete experiment after hours, trip to course of his employment. M.G.L.A. c. result reached even in the absence of an 277. Cf. Vassalotti v. Board of Appeals of t laboratory. was in fulfillment of obligations 152 §§ 1 et seq.,26. express definition of "lot''). Cf. Clarke v. Sudliury, 343 Mass. 658,, 661, 204 N.E.2d to employer, and chemist's death. from Board of Appeals of Nahant, 338 \Mass. 924; Smighani v. Board of Appeals of -� 5. Workmen's Compensation. Sau us,.348 Mass. 794, 203 N.E.2d 227; automobile accident during trip was com- a892,894, 1647 473; -476--477, 155 - of 734. g ensable as arising out of and in course of- -� f Gaudet .�. Building Inspector of .Dracut, I p g Evidence supported recovery by de- [3,4] It is a well known practice in -Mass., 263 N.E.2d 373.'' his employment. 1 pendents of deceased employee, who died !� conveyancing to refer to a recorded plan 3. The final decree is reversed. A de- Decree affirmed. from personal injuries sustained the pre- as a convenient method of showing chain cree is to be entered sustaining the deci- ' vious day, for eye injury, bodily disfigure of title. Davis, Massachusetts Conveyan- lion of the board of appeals. ment, and loss of bodily functions or sense 4� cers' Handbook (2d ed.) § 140. The mere 1. Workmen's Compensation 0a1939 other than hearing and sight, although c� fact that the second 1943.deed, the 1947 So ordered. ppppp{{ On judicial review, decision of review- where functional loss of legs and arms. ' i deed, and the plaintiffs' deed all refer to ing board in workmen's compensation case would have been permanent, compensation the 1903 plan, therefore, is insufficient to W ! must be accepted as final, if supported by therefor should have been awarded under. O E� give rise to a presumption of an intention * the evidence and not tainted by error of section providing for compensation .A. I to preserve the lots designated therein. � law. M.G.L.A. c. 152§ 1 et seq. . permanent incapacity of limbs. M.G.L.A. I Furthermore, since the plaintiffs' deed has .c. 152§ 36(d,h, i,n,q, t). superseded the second 1945 deed and the 2. Workmen's Compensation G-610 1� 1947 deed for purposes of the "lot" defini Zinon PAPANASTASSIOU'S (dependents') CASE. An injury "arises out of employment" tion, the intention of prior owners in caus if it arises out of the nature, conditions, Thomas A. L'Esperance, Jr., Boston, for ing those deeds to he executed cannot in Snprenit Judicial Court of \Massachusetts, obligations or incidents of the employment, insurer. 1 I any event enure to the benefit of the plain- Suffolk• or out of the employment looked at in any tiffs. In 'interpreting a deed, we seek, in Ar ued April -4, 1973. Charles T. Johnson, Boston, for claim- of its aspects. M.G.L.A. c. 152 § 1 et seq. construction _ so far as established rules of co Decided .True a, llli 2. ants.: permit, "to give effect to the intent of the See publication Words and Phrases parties as manifested by the words used." for other judicial constructions and Before TAURO, C, J., and SPIEGEL, Walker o•. Sanderson, 348 Mass. 409, 412, Deceased employee's dependents were- definitions. REARDON, BRAUCHER and HENNES- 204 N.E.2d 108, quoting from Bessey v. awarded workmen's compensation benefits i 3. Workmen's Compensation «713 SEY, JJ. l 011man;242 Mass. 89, 91, 136 N.E. 176. by the Superior Court, Moriarty, J., and Although each case must.be decided on 2. Inasmuch as the plaintiffs acquired insurer appealed. The Supreme Judicial its own facts, where it appears that em- TAU.:O, Chief Justice. j one lot and not t%vo s it is not open for Court, Tauro, C. J., held that where re- ployment impelled employee to make trip, them, in effect, to revive the old lots land search chemist, who was employed to con- risk of trip is hazard of employment and [1.] This is an appeal by the insurer 2 which no longer exist as far as the zon- duct experiments, was required to do what- injuries arising from trio,are compensable. from a final decree of the Superior Court ."v- i = M.G.L.A. c. 152 § 26. awarding compensation to the .deceased 6. I:ceii :il,:,rt front the Icet1 descriptioiis, eten thutiKlt, tuuler :i different ore favor- - - employee's dependents under the Work- the assessnumt practices of the town Kvitlt tint of the roving b'-I:nv, a more favor 4. Workmen's Compensation C�708 r respet•r. n, the �turdot'k property since able use alight he open to the owners. In men's Compensation Act, G.L. c. 152. The vrl?l are some indit'ation of the st:Etua of the instant t e, t�' t b that he prupert} teh,•n :wgtiin•d by tin• plain- nssrsvnu•nt of the pntpererrc ass one lot has Where research chemist, who was em- decree was in accordance with the decision tiffs in April, 1!In7. .�s n,to.d. .Tal,r,i. I"'`'" to tin' 1wriefit of the owzo-rs since ployed to conduct experiments, was re- of the reviewing board which had affirmed he ntKcti assessed rbt• propt•rr> as nne Elio- property'. if treated :is oat• lot with quired to do whatever he judged necessary and adopted the findings and decision of lot .ino e L`I:;;;, \'e said in :vley v. stoil l- n house ❑n1l the hni1'1:'1'1'' lot. wotii'l proh- to assure the success of his experiments, the single member. "On judicial review in;; inspector of D:nnrrs. ::a4 \lass, tt, nblp hoes•been nsveSsed at n higher:ununnt tlt.trt it in fact .:is had authorization to conduct work outside the decision of the board must be accepted N.E.2d ti79. that. w1it n K.no r I,,,t,• bero•ficed lootrti�•niir i sess-❑ his standard working hours, on day of ac- as final, if supported by the evidence and from itent praetice. ..[ill is not nnyust•• to b. �Iass.Adc.ab. llli7ni 1591. cid nent had not completed particular expe not tainted by error of law." Haley's rv•gni.r-• that ❑o "Xisting os,• he utaintaine�l 308 -Mass. 439 NORTH EASTERN REPORTER, 2d SERIES r GIRARD�. BOARD OF APPEALS OF EASTON- Mass. 309 Cite as,Mass.App.,439 N.H.2d 308 1i wiches,qualify the taxpayer as a "person follow the explicit statutory prerequisite 2. Zoning and Planning a251 Martyn H. Lincoln, Town Counsel, North 1 liable to taxation" and, thus, the taxpayer found in § 38, the board did not have juris- Zoning bylaw, which defined "lot" as Easton, for Bd. of Appeals of Easton. l i was required under § 38 to file a return diction over the appeal and the board's deci- id d "a sin le or continuous tract of land held,in d: g William T. Condon, Boston, for Martha because, as it concedes, there is liability for sion must be vacated. the same ownership throughout and defined M. Gomes & another, submitted a brief. taxation on the sale of its sandwiches. So ordered. by bounds or lot lines ascertainable by re- j [2-5], The taxpayer next argues that we corded deed or plan," did not specifically Before HALE, C. J., and PERRETTA ti should overlook the jurisdictional defect define lots in terms of sources of title. and KASS, JJ. ?i and decide the case on the merits, because o s HEYNUMBERSrSTEM 3. Zoning and Planning �235 the board has heard the case and rendered a T For purposes of judging entitlement to KASS, Judge. decision, and. because the failure to file a grandfather rights,it is appropriate to refer Alfred Gomes and Martha Gomes are the return is an "insignificant" step in the to the deed by which the person claiming owners of two adjoining parcels in Easton abatement appeal process. Since the reme- those rights took title, unless the language containing 8,769 square feet and 10,500 dy of abatement is created by statute, the 14 Mass.App.334 of the bylaw unambiguously provides for an square feet,respectively. A dwelling house board has only that jurisdiction conferred Gary A. GIRARD et al.t earlier reference point. is located on the smaller parcel, and the on it by statute, Stilson v. Assessors of larger parcel is vacant. In the aggregate, Gloucester, 385 Mass. 724, 732, 434 N.E.2d V. 4. Zoning and Planning —235 158 (1982). The board "has no jurisdiction BOARD OF APPEALS OF EASTON Vacant lot was not entitled to be treat- let alone separately, the parcels are below the minimum lot size (40,000 square feet) to entertain proceedings for relief by abate- et al? ed as a separate lot under grandfather pro- ment begun at a later time or prosecuted in vision of zoning bylaw, where neither it nor under the applicable provision of the zoning a different manner than is prescribed by Appeals Court of Massachusetts, the adjoining lot in common ownership was by-law of Easton. The Gomeses desire to use the vacant parcel as a building lot, the statute." Assessors of Boston v- Suf- Bristol. in conformity with the dimensional require folk Law School, 295 Mass. 489, 492, 4 ments of the zoning bylaw at the time of claiming grandfather rights under the Ea Argued May 26, 1982. ston zoning by-law and G.L. c. 40A, § 6, as N.E.2d 342 (1936). Adherence to the statu- the recording of the deed to the lots. tory prerequisites is essential to "effective Decided Aug. 23, 1982. appearing in and received c. ed § o They also 5. Zoning and Planning a254 applied for, and received by operation of application for abatement of taxes and to Vacant lot did not qualify for statutory law(G.L.c.40A,§ 15),a variance to build a prosecution of appeal from refusals to abate . Review was sought of constructively exemption from dimensional requirements, single-family dwelling on the 10,500 square taxes." New Bedford Gas & Edison Light where it was held in common ownership foot lot. Co. v. Assessors of Dartmouth, 368 Mass..- granted variance from dimensional require- 745, 747,335 N.E.2d 897 1975 . It is undis- g ySuperiorwith an adjoining parcel and no plan of the ( ) ments of zoning bylaw. The A judge of the Superior Court ruled that- uted that the taxpayer failed to file aCounty, granted lot had been recorded. M.G.L.A. c. 40A, pCourt, Bristol Hurd, J., anted the vacant lot could be treated as a sepa-' return as required by § 38. Section 38 sets judgment in favor of the property owners, § 6, rate lot for purposes of the grandfather u a clear and precise requirement that a p p Q and plaintiffs appealed: The Appeals 6. Zoning and Planning «585 provisions, that a variance might have been return be filed by a "person liable to taxa- Court, Kass, J., held that: (1) vacant lot Party may seasonably file a complaint .granted if there had been timely action by tion," as a prerequisite to obtaining an was not entitled to be treated as a separate seeking judicial review of a constructively the board, and that,the grant of the vari abatement.- Such an explicit prerequisite lot under grandfather provision of zoning granted variance or special permit before a ance by operation of law was "confirmed." cannotebe considered "trivial" or insignifi- bylaw; (2) vacant lot did not qualify for copy of the decision has been filed with the We reverse. cant as were the much less significant de- statutory exemption from dimensional re- city or town clerk. M.G.L.A. c. 40A, §§ 15, Co. constructively [1] 1. The status of the vacant parcel. & nstru - fects found. in Becton, Dickinson quirements; and (3). the co Y 17• - State Tax Comm'n., 374 Mass. 230, 372 granted variance was without factual sup Adjoining parcels held in common owner- € 571 ship are generally considered one lot for N.E.2d 1254 (1978) (application for abate- port and would be annulled. 7• Zoning and Planning � ment.filed after notice of intent to assess Zoning relief granted constructively is zoning purposes. Heald v. Zoning Bd. of but before actual notice of assessment),and Reversed. not beyond judicial review. M.G.L.A. c. Appeals of Greenfield,7 Mass.App.286,290 in Schulte v. Director of the Div. of Em- 40A, §§ 15, 17. 387 N.E.2d 170 (1979). The. "usual con ployment Security,369 Mass.74,337 N.E.2d 8. Zoning and Planning c3-537 struction of the word 'lot' in a zoning con-- 677 (1975) (failure of petitioner to elect a 1. Zoning and Planning 3-251 Constructively granted variance from text ignores the manner in which the com day for the order of notice to be returnable Adjoining parcels held in common own- dimensional requirements of zoning bylaw ponents of a total given area have been on. the Director of Employment Security). ership are generally considered one lot for Q g Y assembled and concentrates instead on the was without factual support and would be Because of the taxpayer's failure here to zoning purposes. question whether the sum of the compo- annulled. M.G.L.A. c. 40A, §§ 15,47. nents .meets the requirements of the by 1. Anita F. Girard, Herbert V. Anderson, Doris 2. Alfred F. Gomes and Martha Gomes law." Becket v. Building Inspector of lYlar- %1.Anderson.Anthony P.Cardoza, Rita B.Car- doza,and Gunhild J. Rosene,all abutters of the Joseph Graglia, Boston, for Gary A. Gir- blehead, 6 Mass.App. 96,, 104, 373 N.E.2d locus. and & others. . 1195 (1978), 310 Mass. 439 NORTH EASTERN REPORTER, 2d SERIES KANAVOS v. HANCOCK BANK & TRUST CO. Mass. 311 Cite as,Mass.App.,439 N.E2d 311 • -'• Alfred Gomes acquired both board does not take action' q parcels on Neither of the Gomeses' parcels, on that or, if it does, land or structures but not affecting gener- February 4, 1970, and conveyed them to analysis, was in conformity with the dimen- fails to file its decision with .the city or ally the zoning district in which it is locat- himself and his.wife as tenants by the en- sional requirements of the zoning by-law town clerk. ed." G.L. c.40A, § 10, as amended through tiret b a deed dated August 28, 1973. "in effect at the time of recording the deed. Y Y . Now faced with that question, we St.1977, c. 829, § 4B. Nor are there any, [6] That deed described the land as,consisting to such lot or lots." findings b of two parcels. The smaller parcel was have no difficulty concluding that a party Y the judge to that effect. In the 1 described with some precision. The larger, [5] 2. Rights under G.L. c. 40A, § 6. may seasonably file a complaint seeking absence of that fundamental ground for a No grandfather rights accrued under G.L.c. judicialvariance it is n review of a constructively granted of necessary to inquire fur vacant parcel was described as: "The land 40A, § 6, as appearing in St.1975, c. 808, variance or special permit a before a copy of ther. Lewicki v. Board of Appeals of Hav- eadjoining the first parcel and is bounded § 3. The first sentence of the fourth para- the decision has been filed with the city or erhill, 8 Mass.App. 906, 906-907, 394 N.E.2d a` easterly by Seaver Street, southerly by graph of § 6 grants to lots to be used for town clerk. This is because when statutes 1129 1979 . The judgment Reynolds Street, westerly by land now or ( ) ] gment is reversed. As single-and two-family houses an exemption fix a certain time after a procedural event. to the variance, a new judgment is to enter formerly of Simon Anderson and northerly by land now or formerly of Frank Pierson. from dimensional requirements in certain for taking action, the action may be taken that the variance granted by operation of circumstances if "at the time of recording„ before the event. Tanzilli v. Casassa; 324 law was without factual support and,had it [2] At the date of the 1973 deed the the lot "was not held in common ownership Mass. 113, 115, 85 N.E.2d 220 (1949), and been granted by a timely decision, would zoning by-law (a comprehensive revision with any adjoining land." The vacant par- cases cited. McDermott v. Jamula, 338 have been beyond the authority of the having become effective as of March 27, eel here in issue has since 1904 been held in Mass. 236, 241, 154 N.E.2d 595 (1958), cert. board; accordingly, the variance is an- 1973) defined "lot" as: "A single or contin- common ownership with the adjoining par- denied, 359 U.S. 968, 79 S.Ct. 879,3 L.Ed.2d nulled. uous tract of land held in the same owner- eel and, therefore, does not qualify for the 835 (1959). Early action when the underly- So ordered ship throughout and defined by.bounds or exemption. Another, more limited, exemp- ing facts giving ground to the action are lot lines ascertainable by recorded deed or tion was added to the fourth paragraph of, known works no prejudice to the adverse plan." We do not read this definition as § 6 by St.1979, c. 106. It applies only if a party and is different from premature ac- o E one which specifically defines lots in terms plan of the lot in question has been record- p s KernuMetesrsTtM lion, where the basis of a cause of action is r - of sources of title. Compare Vetter v. Zon- ed, and as no plan of the lot in issue in this still uncertain. "[I]t is a general policy of ing Bd. of Appeal of Attleboro, 330 Mass. case has been recorded,rights,if any, under the law to prevent loss of valuable rights.628, 630, 116 N.E.2d 277 (1953); Lindsay v. § 6 are unavailable. because [something] wxs done too r 14 Mass.App.326 Board of Appeals of Milton, 362 Mass. 126, 3. The variance. As an alternative to soon." Becton, Dickinson & Co. v. State Harold J. KAuNAVOS 130-131, 284 N.E.2d 595 (1972). their grandfather rights, the Gomeses, on Tax Commn., 374 Mass.230,234,372 N.E.2d _ V. [3,4] When on August 30, 1973, the September 17, 1979, petitioned for a vari- 1254 (1978). HANCOCK BANK & TRUST deed to the Gomeses was recorded, the zon- ance. The board held a hearing on October COMPANY. ing by-law of Easton, in § 6-3, specified a 25, 1979, but failed to issue a decision with- [7] Zoning relief granted constructively. minimum lot size of 40,000 square feet and in seventy-five days after the filing of that is not beyond judicial review. The relief so Appeals Court of Massachusetts, a minimum frontage of 150 feet. The petition.3 Pursuant to G.L. c. 40A, § 15,' granted may be tested on appeal under G.L. Suffolk. grandfather provision in the by-law; § 4-7, within seventy-five days after the applica- C. 40A, § 17, to determine whether facts spoke in terms of conformity "to the area, lion for relief is filed, a board is required to exist which would have enabled the board Argued May 12, .1982.to grant the relief. Were it otherwise a Decided Aug. 23, 1982. " width and yard space or building coverage render a decision on pain that the relief will provisions in effect at the time of recording be deemed to be granted. See Noe v. Board board of appeals could, through non-action, Further Appellate Review Denied the deed to such lot or lots." For purposes ur of A put flagrantly unlawful zoning relief be- Sept. 30, 1982. p p Appeals of Hingham, 13 Mass.App. 103, yond review. of judging entitlement to grandfather 104-107, 430 N.E.2d 853 (1982). Recogniz- Borrower brought action against bank. rights it is appropriate to refer to the deed ing.that the board had constructively grant- (8] In the record before us there is scant to recover under agreement under which by which the person claiming those rights ed a variance to the Gomeses, the plaintiffs evidence to support a finding that there are borrower's option to repurchase .property took title, unless the language of the by-law brought an action on December 21, 1979, circumstances relating to the "soil condi- from bank at certain price was amended so'- unambiguously provides for an earlier ref- under G.L. c. 40A, § 17, as amended by tions, shape, or topography of [the] land or as to provide for right of last refusal or a erence point. See Lindsay v. Board of Ap- St.1978,c.478, § 32. On the date the plain- structures and especially affecting such cash payment if the property. were sold to peals of Milton, 362 Mass. at 131, 284 tiffs' action was filed no copy,of a decision 4. Eventually' the board did act. The record 5. As to time within which action must be N.E.2d 595. The Easton by-law provision, had been filed with the town clerk. In Noe discloses discloses a decision favorable to the Gomeses taken on applications for special permits, see § 4-7, did not refer to the first deed in v. Board of Appeals of Hingham, supra at dated December 10, 1979, but it appears that G.L. c. 40A, § 9, seventh par., as amended which the description for the vacant lot was 110, 430 N.E.2d 853, we left open how and the decision was not signed by all the members through St.1977, c. 829, § 3F, and Building In- . used (a deed, incidentally, recorded in 1904). when review can be had in a case in which a of the board on that date, and, in anv event. Spector of Attleboro v. Attleboro Landfill, Inc., when counsel for the plaintiffs inquired with - Mass. -, Mass.Adv.Sh. (1981) 1653, 3. The seventy-fifth day fell on December 1, effective deadline became December 3. 1979. the town clerk on December 19, 1979, about 1655, 423 N.E.2d 1009. See also G.L.-c. 40A, 1979, but that was a Saturday, so that the the status of the case,no decision had vet been § 15, as appearing in St.1975, c. 808. § 3. filed.