Kimberly M. Saillant

ksaillantc~dwboston.com

                                                                                                                                                   September 1, 2004

Irene Romano, Chairman

Zoning Board of Appeals

Town of Randolph

41 South Main Street

Randolph, MA 02368

Re:       Todd A. Sandier and Evelyn A. Cohen

v.         Town of Randolph, Town of Randolph Zoning Board of Appeals including Nancy Fahey, Irene Romano, Vera McPartlan, Donald McCabe, Sr., Arnold Rosenthal, Marjorie Sarofeen, Richard Brown, Jonathan Moriarty, and Toby Lynne Schwartz in their capacity as members of the Town of Randolph Zoning Board of Appeals and Mary C. McNeil in her capacity as Building Commissioner of the Town of Randolph

Norfolk Superior Court Civil Action No.: 03-00 775

Dear Chairman Romano, Board Members and Building Commissioner McNeil:

Congratulations! Enclosed herein, please find a copy of Judge Donovan’s Memorandum of Decision and Order, together with the Judgment for the Board and the Building Commissioner regarding the recent trial of the above-entitled matter. You will note that the Memorandum of Decision follows the chronological development and disappearance of the grandfather clause in the local by-laws and determines, as a matter of law, that the doctrine of merger applies to the Sandler lot. We see no reason why a similar analysis cannot be brought forward on other commonly owned lots whose owner attempts to secure building permits on the basis of the then-existing 1954 grandfather clause in the local by-laws. In that regard, it was with the invaluable assistance of Building Commissioner McNeil, together with that of the Chairman of this Board, that we were successful at trial and I wish to thank them publicly. We trust you are as pleased with the result as we are.

Should you have any questions or comments regarding the foregoing, please do not

hesitate to contact the undersigned.

DEUTSCH I WILLIAMS I BROOKS I DERENSIS & HOLLMff), P.C. Attorneys at Law

                            COMMONWEALTH OF MASSACHUSETTS

NORFOLK, ss

SUPERIOR COURT C.A. # 2003-775

TODD A. SANDLER and EVELYN A. COHEN

V.

TOWN OF RANDOLPH, THE ZONING BOARD OF APPEALS of the

TOWN OF RANDOLPH and MARY C. MCNEIL, Building Commissioner

JUDGMENT

This action came on for hearing before the court, Donovan, J. presiding, and the issues have been duly heard and findings having been duly rendered; it is ordered and adjudged as follows:

The decision of the Town of Randolph Zoning Board of Appeals is affirmed.

RE: Sandier v Randolph et al

TO: Kimberly M Sailiant, Esquire

Deutsch Williams Brooks DeRensis et al

99 Summer Street

Boston, MA 02110

                                                NOTICE OF DOCKET ENTRY

You are hereby notified that on 08/31/2004 the following entry referenced docket:

was made on the above

MEMORANDUM OF DECISION AND ORDER Including Findings of Fact and Rulings of Law Pursuant to Mass. R. Civ. P. 52 (a) (Elizabeth Bowen Donovan, Associate Justice). Copies mailed

Dated at Dedham, Massachusetts this 31st day of August,

2004.

                                       COMMONWEALTH OF MASSACHUSETTS                 -

NORFOLK, ss.                                                                                  SUPERIOR COURT

TODD A. SANDLER and EVELYN A. COHEN

Plaintiffs

vs.

TOWN OF RANDOLPH, THE ZONING BOARD OF APPEALS OF

TOWN OF RANDOLPH and MARY C. MCNEIL, Building Commissioner,

Defendants

                                     MEMORANDUM OF DECISION AND ORDER

[Including Findings of Fact and Rulings of Law Pursuant to Mass. R. Civ. P. 52(a)]

            The plaintiffs, Todd A. Sandier and Evelyn A. Cohen, appeal the decision of the Zoning Board of Appeals (ZBA) of the town of Randolph denying their application for a building permit. The appeal to the ZBA challenging the Building Commissioner’s denial of the building permit was pursuant to G.L. c. 40A § 8. The plaintiffs file this appeal under G.L. c. 40A § 17.

                                                FACTS

          I find the following the facts based upon the testimony of the witnesses I deemed credible, the exhibits, the stipulations and the reasonable inferences drawn from all of the evidence.

          In October, 1939 Evelyn A. Cohen and her husband became the owners of property at 17 Hill Street, Randolph, Massachusetts. The land is identified as Lots 294B and 295 on a subdivision plan dated March 14,1939. The lots joined together

comprise a parcel with a 75’ frontage and a 100’ depth. In June, 1942 Mr. and Mrs. Cohen purchased land abutting Hill Street identified on the same plan as Lots 313A and 312.  Together these lots have 75’ of frontage on Eugenia Street and 100’ depth. The Hills and Eugenia Street parcels share a common rear yard property line. The Cohens lived in the house which was located on the Hill Street property. When the Cohen bought the properties the town had in place a 1939 Zoning Bylaw which required a lot to have 75’ of frontage and an area of 7500 sq. ft. Thus, in 1942 the Cohens owned two buildable lots; one on Hill Street and one on Eugenia Street.

          In 1954, the town of Randolph voted to amend the Zoning Bylaws to increase the land area in a residential zone to 12,000 sq. ft. with a frontage not less than 100 feet. The article contained the following provision: “The foregoing provision shall not apply to lots recorded as such with Norfolk Deeds or registered as such in the Norfolk Registry District on the effective date of this by law. Notwithstanding the above provisions, where the literal enforcement of this section would substantially diminish the value of the land, because of the confirmation of the land, the shallowness or other irregularity of the lot boundaries.. .or other valid reasons, the owner thereof may apply to the Board of Appeals for relief and the said board shall grant, upon equitable terms and conditions, such relief as will carry out the intent of the bylaw but in no event to reduce the frontage to less than 85 feet.” This provision is referred to as the grandfather clause.

          In March, 1966 the Town Meeting adopted new Zoning Bylaws and eliminated the grandfather provision. On April 11, 1978, the town adopted G.L. c. 40A. In 1980 and 1981, the Town Meeting defeated a provision to re-establish a grandfather clause in the Zoning Bylaw. The 1983 Town Meeting took no action on a similar provision. In

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2001, Article 25 was presented to the Town Meeting which adopted the grandfather -provision. However, when the Zoning Bylaw was submitted to the Attorney General for approval, it was disapproved.

            In May, 1995, Mrs. Cohen sought the opinion of the Building Inspector regarding whether the property on Eugenia Street was a buildable lot. After review, the Building Commissioner informed her it was not a buildable lot. Rather the combined land on Hill and Eugenia Streets constituted one buildable lot.

          Mr. Sandier, a real estate broker, sold the Hill Street property for Mrs. Cohen. He has a purchase and sale agreement on the Eugenia Street property. In April and October, 2002, Mr. Sandier sought the opinion of the building inspector regarding the issuance of a building permit. He was informed that after review of the deeds involving both properties the total land area constituted one lot. The doctrine of merger applied. Mr. Sandier appealed the building inspector’s determination as set forth in a letter dated December 11, 2002. The ZBA held a hearing over two days. It upheld the denial of the building permit by the building inspector. Mr. Sandier and Ms. Cohen appeal the decision of the ZBA pursuant to G.L. c. 40A §17.

DISCUSSION

The plaintiffs’ appeal is based solely on a denial of a building permit. That denial is based on the doctrine of merger and the decision by the Building Commissioner that the grandfather clause set forth in 1954 Zoning Bylaw does: (1) not pertain and (2) is no longer in existence.

          “A basic purpose of the zoning laws is to foster the creation of conforming lots... This purpose... is reflected in the zoning principle that precludes an owner from availing

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(herself) of a nonconforming exemption unless (she) includes (her) adjacent land in order to minimize the nonconformity.” Preston v. The Board of Appeals of Hull, 51 Mass. App. Ct. 236,238(2001). SeeAsackv. The Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 736 (1999) quoting from Murphy v. Kotlik, 34 Mass. App. Ct. 410, 414 n.7 (1993). Normally adjacent lots in common ownership will be treated as a single lot for the purposes of the Zoning Bylaws so as to minimize nonconformities. Seltzerv. The Board of Appeals of Orleans, 24 Mass. App. Ct. 521, 522 (1987). This general rule has been consistently applied, before and after the enactment of our current zoning enabling act, statute. 1975,

c. 808”. Preston, supra at 238. Bobrowski, Massachusetts Use and Planning Law, §5.3.1

As the court said in Preston, the crucial inquiry for grandfathering purposes is the status of the lot immediately prior to the zoning change that rendered the lot

nonconforming. Quoting from Adamowicz v. Ipswich, 395 Mass. 757, 762-763 (1985). Immediately prior to the 1954 zoning change the Cohen lots were held in

common ownership but meet the zoning requirements for two lots. The plaintiffs’ assert the subject land was grandfathered when the town adopted the 1954 Zoning Bylaws which increased the land area to 12,000 square feet and the frontage to no less then 100’. However, Article 54 of the 1954 Zoning Bylaws contained a provision that relief in the nature of grandfathering could not be granted if the frontage was less than 85’.

Clearly, the relief under Article 54 was not available to the Cohens.

Even if one could stretch Article 54 grandfathering to apply to the subject

property Mrs. Cohen waited 42 years from the 1954 change in zoning before inquiring about her right to a building permit. In the interim, the town adopted c. 40A which

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places a limitation upon the development of nonconforming lots and on two occasions the town refused to re-establish the grandfather provision and on a third attempt no action was taken. The final effort resulted in the Attorney General invalidating the provision in 2001. Here, the doctrine of merger controls the development of the property.

ORDER

Judgment shall enter affirming the decision of the Town of Randolph Zoning

Board of Appeals.

Elizabeth Owen Donovan

Justice of the Superior Court

Date:  August 25, 2004

A TRUE COPY

Attest:

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