Mass. High Court Says Not All Divisions of Land Require Planning Board Approval, Dismisses Prospect of “Wild Deeds”

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In its recent decision in RCA Development, Inc. v. Zoning Board of Appeals of Brockton (pdf), Massachusetts’ Supreme Judicial Court (SJC) considered whether a division of land into two lots accomplished solely by deeds describing the new lots, with no plan having been drawn or approved by the local planning board, is valid. Without hesitation the SJC held that it is.

In 1964 the owner of a lot in Brockton conveyed the northern half of the lot to the owner of a northerly abutting lot, and the southern half of the lot (the locus) to the owner of a southerly abutting lot. Each half of the original lot independently complied with the then-existing frontage, lot-depth, and area requirements. Going forward, the locus and the southerly abutting lot were conveyed together but continued to be separately described. At some point a house was built on the southerly abutting lot but the locus remained vacant.

In 2016 the plaintiff applied for a permit to build a house on the locus, taking the position that the locus was grandfathered and the applicable zoning requirements were those in effect in 1964. The building inspector denied the permit and the plaintiff appealed to the zoning board. The board upheld the building inspector’s decision on the ground that the locus and the southerly abutting lot had been owned in common and therefore had merged into one lot for zoning purposes, wiping out any grandfather protection for the locus. The plaintiff appealed that decision to the Land Court.

On the question of merger, the Land Court looked at the version of the Brockton zoning ordinance in effect in 1964 and determined that the locus fully complied with all requirements and that, based on certain “forgiving” language in the ordinance, common ownership of the locus and the southerly abutting lot did not result in a merger. But the board had two more arguments: first, that the original 1964 division of land was a subdivision that required approval by the Brockton planning board; and second, that even if the original division was not a subdivision, the owner still was required to prepare a plan and obtain from the planning board a so-called “Approval Not Required” (ANR) endorsement. The Land Court rejected both arguments, reversed the zoning board’s decision, and entered judgment for the plaintiff.

On the zoning board’s further appeal, the SJC emphatically affirmed the Land Court’s judgment on both subdivision issues (the board did not appeal the merger ruling).  As to whether subdivision approval was required, the SJC considered the definition of “subdivision” in the Subdivision Control Law, M.G.L. c. 41, § 81L. The court noted that this definition expressly excludes a division of land where each resulting lot has frontage on a public way sufficient to satisfy the then-existing frontage requirement. It was undisputed that both halves of the original lot (one of which was the locus) had more than the then-required 50 feet of frontage on a public way.  Because the original division wasn’t a subdivision, it didn’t require subdivision approval from the planning  board. Turning to the zoning board’s last hope – its argument that an ANR endorsement was nevertheless required – the SJC reviewed the language of M.G.L. c. 41, § 81P, which sets out the procedure for obtaining such endorsements.  The statute states that “[a]ny person wishing” to record a plan, who believes his plan does not require approval under the subdivision control law, “may submit his plan to the planning board” for an ANR endorsement.  The court zeroed in on this permissive language and concluded that preparing a plan and obtaining an ANR endorsement is not required for a division of land to be valid. The court was unmoved by the zoning board’s argument that all divisions of land should be reviewed and approved by a planning board to prevent what the board colorfully characterized as “wild deeds.”  In response, the court matter-of-factly observed that “where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent.”

RCA Development is a useful decision for owners of nonconforming lots created solely by deed and not shown on any plan.  It’s now clear that such lots are just as valid as lots shown on approved subdivision or ANR plans and, assuming they otherwise qualify, they are equally eligible for grandfather protection against subsequent zoning changes.

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