-: 13230 Thomas F. Williams, the board appeals of Norwell.
-: Okay, Nguyen.
-: Good morning, your Honor,
it's a pleasure to be before the court.
If it pleases the court I represent attorney
Thomas F. Williams in absence.
I apologize, your Honor, hold on one second.
Zoom, so I represent Mr. Williams.
Mr. Williams applied for billion.
-: Can't, hear you now.
-: I'm sorry can you hear me, your Honor?
-: Can other people hear?
-: Okay.
Mr. Williams applied for a building permit back in 2009,
and that building permit was granted by the town
noble building inspector, after he drove down
Stoney Brook Lane to inspect the site,
that building permit was appealed by the LAUSE,
who are neighbors, utilizes Stoney Brook Lane
as their right of way to get to Main Street.
And upon that appeal to the ZBA, the building permit
was appealed further to the land court,
and the land court's decision was then appealed in 2014,
which established a couple of factors.
One of the factors established was existing right of way
known as Stoney Brook Lane does exist on the ground
and does provide access for Mr. Williams.
And it also established that the 1942 Zoning Bylaw
was applicable bylaw in place and analyze a chapter 40 A
sections six is a division.
-: So you're saying Counsel, you're saying that,
the 1942 bylaw is the one that is appropriate?
-: Yes, it is your Honor.
-: Okay so tell me, and then you also mentioned the right
of way, can you tell me what more needs to be done,
if you don't, if you are not successful,
can you go back to the planning board
or the whoever it is and get that road declared a public way
for your purposes that might change things.
-: It wouldn't be considered a public way for the planning
board, if the court is gonna decide that this matter
the only thing it's a pre Subdivision Control Law plan
that was recorded by Mr. Williams lot.
It was created in 1948, and that was prior to Subdivision
Control Law, so the planning board doesn't really have
much jurisdiction over this matter, except for permit,
except for savaging A and R plan, if it does go before
the planning board again.
-: Well, that's I guess what I'm asking,
is if you are not successful,
is there a route for your client to go back
and become successful?
-: It would more of, I guess it's the answer to that question
is that the planning board will have to establish
the same factors as it is now, that is before the court
that it does not require that planning board's approval
'cause it predates Subdivision Control Law.
-: Okay.
-: And the only thing that can be applied is,
is that is A and R approval, to the Stoney Brook Lane,
and that's in essence where we're at when,
so when the court is asking me if there's another avenue,
I don't believe that there's necessarily any need for that
avenue.
-: Well, I understand Stan, you don't,
I was just trying to understand the consequences
of the appeals court decision,
and just trying to understand the consequences
of where you are right now, if you're not successful this,
but we can move on can you also tell me,
do you agree, or disagree with whether the judge
was judge right in concluding that the 1950 bylaw
would have implications on this in some way?
-: It wouldn't because the 1942 Zoning Bylaw
was what was determined to either applicable Zoning Bylaw.
-: I know, but then we bump into Lincoln, right?
We bump into the land court's case in Lincoln.
So how do you resolve that?
-: Well, the Lincoln case established
it report to invalid 1942 Zoning Bylaw
based on procedural non-compliance
and the courts, SJC your decision has established
that procedural non-compliance minimal ones
are not considered, it has to be looked at very careful
before a court could invalidate that.
Based on that court decision,
this court has the power to determine that the ruling
by the land court back in 1947 was incorrect,
in order to buy the town of Norwell was some guidance
as to its bylaw back in the 1940s.
So what I'm trying to indicate is that that court decision
permits the case option to apply, or the court can apply,
or the court can determine that the land courts decision
back in 1947 was invalid in order to provide term Norwell
for the guidance as to other property uses that back 1940s.
-: So before you explain that in more detail,
if I could just go back and the reason for the question
is very similar to just deciphers initial question
about whether there needs to be a remand here
or order to at least whether there's an avenue for it.
So if the law of the case doesn't apply,
and if the 1942 bylaw was in bail,
and if there was no Zoning Bylaw in 1948,
it seems that there wasn't.
And if the 1955 bylaw does apply,
and this is not a subdivision, is there a vehicle,
is there an argument that you would still win?
-: Under the exemptions of chapter 41 says,
Section F it's probably that are not held in common
ownership or exempt from certain regulations
and the legislatures in both chapter 40 A and chapter 41
provided that exemption for bonafide purchases of lots
that were not held in common ownership for any changes
in Zoning and any regulations that a planning board
would apply.
So that avenue was still what I'm trying to answer
the question is that I'm trying to get at the point is that
it's a lot, the Stoney Brook Lane is a right of way
that serves the locus.
And that determination was based on plans and deeds
that was reporting 1948.
And that triggers both chapter 40 and 40 A
and at chapter 41 is exemptions to a lot
that were prior created.
-: So I'll be frank, I'm not sure I understand.
Explain to me if you could, how you can use Stoney Brook
Lane to get to the required frontage.
-: By looking at the 1942 definition as to frontage,
that required a hundred feet of fronts in 1942.
-: You talked about the 1942 bylaw?
-: 1942 Bylaw.
-: Yeah, but the predicate of my question was,
that if the 1942 bylaw was invalid.
-: If the 1942 was in invalid, then chapter 48 would apply.
The section six of the fourth paragraph would apply.
That only requires 50 feet of frontage upon away
in the minimum lot size requirement.
It's the application of a circumstance
when zoning, for the enabling act,
for the zoning changes occur, it permits lots
that were not in common ownership to be protected
from any further changes.
And so that is the avenue for which that that Mr. Williams
law would be able to be utilized as to build
a single family resident.
I guess the question that is my understanding
of that grandfather provision, that it sets minimum lot size
requirement, it sets minimum frontage requirement
and Mr. Williams law, it meets those requirement
when there's a circumstances, there's no bylaw in effect,
there was a bylaw in effect, but we're trying
to it's indicate that it was not in effect,
that chapter permits the protection
that allows Mr. Williams to build on his property.
I'm hoping.
-: Well you understand that's the 1950 bylaw
when there's no bylaw.
-: 1945 Bylaw indicates that a right of way has to have some
sort of approval from the planning board.
If the court's considering that substantively changes
the frontage requirement and chapter 40 A would apply.
If the sections the first sentence of the section six
would apply.
I guess my reading of it seems to be
in that regard, is that if there is any zoning changes
that prevents a single lot from being built on a property,
that's not held in common ownership,
if any Zoning Bylaw causes the changes,
the grandfather provision would apply
and protect a lot from being rendered unbillable.
-: But only you have 50 feet of frontage isn't that right?
-: Yes, your Honor.
-: So I thought the question for us was,
how do you define frontage?
And what resources do you use to arrive at that definition?
-: You define frontage in a certain sense
where if there's 1940, not in place,
'cause that this is for the premise of the case
that went before the Appeals Court,
that the 1942 bylaw required a hundred feet of frontage.
And that was what was applied.
And then further bylaws, if the court considered it
to be substantial changes to the 1942 requirement,
then chapter 40 A would apply to protect the lot
from any increase in frontage requirement.
-: Subject to a minimum of 50 feet.
And the 2014 factual findings has already established
that the lot has more than a hundred feet of frontage.
-: Where is that in the 2014 opinion?
-: That 2014 indicate that the Stoney Brook Lane process
locus for more than 100 feet, that would be on the second.
-: And so how does that square with having more than 50 feet
of frontage?
Are you equating the two crossing over the locus
for more than a hundred feet,
is the same as having at least 50 feet of frontage?
-: Yes, your Honor.
-: What is the reasoning behind that?
I'm not challenging your conclusion,
I'm trying to understand why right of way,
crossing through a locus for more than a hundred feet
is the same as having a minimum 50 feet of frontage.
-: And there's why this case has been broken down
to two different sections.
The first 2014 decision went through the analysis
of the 1942 Zoning Bylaw, which requires that a single
family lot have.
-: So assume that we disagree with you
and that law of the case is not gonna apply
for the particular reasons at issue here.
Why does having a locus a right of way that passes
through a locus for more than a hundred feet
satisfy the paragraph four requirements
of having a minimum of 50 feet of frontage?
-: Because I'm trying, I guess.
-: Isn't that the core of the appeal?
-: It is the core of the appeal,
but it is a hundred feet that crosses over
the locus and that is defined as the frontage
for the property.
-: But we have stop there, and tell me why,
what you just said is correct.
-: If you look at the bylaws, even the 2009 bylaw,
it states franchise as a continuous
and uninterrupted portion of a silent of a way.
That's the 2009 definition of frontage.
So the Appeals Court determined that the hundred feet
of frontage in the 1942 bylaw, it met that requirement
and the Appeals Court indicated that,
all the evidence points to the fact is Stoney Brook Lane
process the locus for well over a hundred feet.
So it meets the definition even it meets a 2009
definition of frontage,
a continuous and uninterrupted portion of a sideline
of a way.
The only question is, is that we're trying to argue
what a way is, what a away means today.
And a way means today apparently requires a planning board's
approval that is a way.
-: So does assuming I understand that last answer
of how that gets you to 50 feet of frontage.
The fact that Stony Brook Lane, it's a private way
and hasn't received approval from the planning board.
How's that impact your last answer?
-: It's approval by planning board the town has adopted it
through its Subdivision Control Laws,
a map that depict on Brook Lane as part of the town's
accepted ways.
It's on A and R plans that the planning board
has already endorsed and filed the registry for numerous
properties to utilize Stoney Brook Lane.
So the planning board has accepted Stoney Brook Lane
as a right of way it doesn't have to be a public way.
The town, no permits, private ways and also public ways.
So I guess I'm trying to understand how private way
to serve seven other residences is not considered
a right of way for Ms. Williams law.
When the facts has already been established in 2014,
that Stoney Brook Lane process over the locus,
and there's no other evidence that indicates otherwise
that the right of way in 1948 is Stoney Brook Lane.
So that factual findings permits the court to determine
that Stoney Brook Lane serves as frontage for the property
under the bylaws that is established.
-: One final question for me.
And that is, would that be true regardless of what
that wouldn't be true regardless of what bylaw is applied,
though, you're dependent on that 1942 bylaw.
-: If the whole premise of this case
is a requirement that the plan board somehow
has to determine this private way,
is considered the planning board
lack authority with regards to lots that were predate
the Subdivision Control Law.
The only authority that the planning board has
in this circumstance is to adopt an A and R plan
and have that file because the lot was created
prior to this Subdivision Control Law
and had an existing right of way.
-: So you're saying then if the 1942 bylaw doesn't apply,
that's the route that you go.
-: Yes your Honor.
-: Thank you that I got it now, I understand.
-: Okay thank you very much, Attorney De Lisi.
-: Good morning your Honors.
May I please the court, my name is Attorney Jeff De Lisi
and I represent the Appell Gregory Mar Laro.
In my supplemental memo to the court.
I argued that the land court judge was correct in her ruling
because the 1942 Zoning Bylaw had been invalidated
prior to the recording of the 1948 plan
that created the lot.
And thus that the courts are to look to the meaning
of frontage in the town Zoning Bylaw.
However, in preparation for this argument
and going back to the language again and again
of the statute in reading and rereading the cases of work
V Rothman and the Doenitz versus Itswedge.
I came to the realization that it actually doesn't matter
whether or not the 1942 bylaw wasn't old in 1947.
And because what matters according to the case
is the status of the lot at the time of the most recent
instrument of record, prior to the zoning change
that rendered the lot nonconforming.
In 2009, the decision of the Norwell Zoning board
of appeals, which overturned the issuance of the building
permit did not engage that analysis,
if you look at the decision.
And in 2013, the Appeals Court in remanding the case
also did not engage that analysis.
On remand, the town's decision on remand.
Also, if you read it does not indicate
when the lot was first made to be nonconforming
and does not seek to identify the most recent instrument
of record prior to the zoning change.
So, in order for me to address that issue
for the court today, it is necessary for me to briefly
review the legal framework set forth in the statute.
The first sentence of the fourth paragraph of mass general
law chapter 48, section six, exempts certain lots
from increased zoning restrictions
provided that certain minimal conditions are met.
Those conditions are at the time of recording
or endorsement, whichever first occurs,
the lot had at least 5,000 square feet in area.
And 50 feet of frontage was not held in common ownership
with any adjoining land and conform to the land existing
zoning requirements.
It is well settled law in Donitiz V Rothman
that the phrase at the time of recording or endorsement
means the time of the most recent instrument of record
prior to the effective date of the zoning change.
Now in the second summary, judgment decision,
which is on appeal before this court today,
the land court contained two rulings
that are essential to that analysis.
The first was that the Zoning Bylaw adopted by the town
of Norwell in 1959 was the first bylaw
that rendered the property nonconforming.
Because it required that lots of two acres or more
have at least 40 feet of frontage,
which was defined in that bylaw as frontage
being on a public way or a way approved
by the planning board.
The second essential ruling that the land court made,
in that decision was that the most recent instrument
of record prior to that 1959 zoning change was August,
excuse me, was September 24th of 1957.
That de for the court's reference can be found
in the record, appendix volume four page 28.
Since frontage is not defined in the act,
where to look to the meaning of frontage
used by the municipality and the land court
focused on looking at that meaning
in three critical junctures.
And it came to the conclusion that the results the same,
no matter which juncture you look at,
that being the present date, that being the language used
in the 1959 bylaw that rendered it nonconforming,
and that being the language in the bylaw
prior to 1959, which was adopted in 1955
prior to the most recent instrument of record.
So what does it all mean?
What it all means is that the lot at the subject lot
in this case was not once buildable
as that term is used in the statute.
Well, not the statute, but it was not once buildable
did not comply with the then existing requirements
because as of 1957 it did not have frontage
on a public road or on a way approved by the planning board.
And so I believe that the land court
analysis on that question was actually spot on.
And when I wrote my memo,
I was so focused and later focused on the issue
of is the 1942 bylaw invalidated, and what does that mean?
That I forgot to look at the most recent instrument
of record prior to the date of the 1959 zoning change.
Once you look at that, it means that the 1942 bylaw,
whether it was valid or not valid is irrelevant
to the analysis.
And I think that that is my entire argument today.
-: Well, is it relevant to the understanding
of what frontage was in 1948 when this lot was created?
-: It doesn't matter.
-: The whole point of this paragraph four
is to render buildable things that were buildable
before the change.
You allow a subsequent redefinition of frontage
and then apply that as the 50 foot of frontage required.
It seems like a big loophole towards the legislative purpose
of allowing buildable lots to remain buildable.
-: But the statute requires that you,
the mass general law up to 48 section six fourth paragraph
first sentence, requires that the analysis on that
begins at the most recent instrument of record.
-: And the most recent instrument of record, what was filed,
what would document is that you're telling us to look at
that and what is that?
-: Yeah, so that is a deed in 1957.
That is the most recent instrument of record
prior to the adoption of the 1959 bylaw
that rendered the law nonconforming.
And that deed is located at the record appendix
volume four page 28.
-: Thanks could you address and my colleagues can go back
if they want to but for me, can you address the law
of the case argument that's been made?
-: Yeah, in speaking with Robert Galvin who's town council,
he said to me, I make no apologies in getting it right.
In this particular case, Mr. Galvin was not participatory
initial trial and town council didn't stipulate
the decision of the zoning board of appeals in 2010,
didn't seek to constru the words 1942 bylaw
weren't even used.
And it only came to be by virtue of a stipulation
at the time of trial between the two private defendants.
And there never was a determination at the land court
on that issue.
When the matter got to the Court of Appeals,
the land court judgment was overturned
on the basis as stated by the court,
that the land court was incorrect in its ruling,
that the land court's ruling was based on incorrect
subsidiary findings was actually the language used.
And that the court said, even though the 1942 bylaw,
doesn't use the word frontage, or doesn't define frontage,
lot width is essentially amount to frontage,
and you could have a proper lot width on a passage,
and that's how it got there so on the issue
of the Court of Appeals initial remand,
the whole concept was that it was based on incorrect
subsidiary findings that the land court decision
was based on incorrect subsidiary findings,
but the court of appeals didn't even actually determine
Appeals Court Mara had told me say, Appeals Court,
not Court of Appeals.
The Appeals Court had not actually determined
that the 1942 bylaws were act, you know,
were the operative bylaw.
It just picked up on the stipulation initially.
And so when you look at the case law concerning this issue,
you're gonna see that there are various justifications
for the circumstance that we're talking about,
which is the law of case and essentially going in
a different direction.
And that is if the matter had not become final,
and in this case it went from the land court
to the Appeals Court, to the land court, to the ZBA,
back to the land court, up to the Appeals Court
and now here, we've never, it never became final.
And in addition the Appeals Court decision
remanded it to the land court to remand back to to the town
for purposes consistent with this decision
is what the language says in the Appeals Court decision.
And that's exactly what the land court did.
And it was only once it got to the ZBA and somebody said,
hey, I think I recall that the 1942 bylaw was an nud.
That was the first time the ZBA even dealt with
the 1942 bylaw in this case.
And they got it right.
So there are good reasons to overrule the law of case
doctrine, if manifest I justice would occur,
if there are new facts that come to light,
if the decision had not become final,
all of those are apparent in this case, in my estimation.
-: Since it was a stipulation,
can you count it as a decision of the Appeals Court.
-: Since it was a stipulation, can you count that
as a decision of the Appeals Court?
-: Except is there a difference between accepting
a stipulation and a court making a decision
or making findings?
-: Well, of course, I think that there is right,
because the court did not rule on that.
If the court ruled on that and actually looked and said,
okay, here we have a case,
the most recent instrument of record is 1948,
which that's not the case, and at the time the frontage
requirement was 1942 bylaw, there was no ruling on that.
And so I do think that there's a difference between
stipulation in one instance and a ruling on the other.
-: Can I follow up on that?
-: No, go ahead.
-: So you say there was no ruling,
but I thought the stipulation was based on the land court's
ruling to the effect that the 1942 bylaw was controlling.
-: No, I don't.
-: So the appeals court didn't rule on it one way
or the other, but the land court did in the first instance.
-: I think your Honor, the distinction there might be
that the Appeals Court was construing the language
of the land court, which was looking at the 1942 bylaw.
But I don't think that the land court and the judge
one of the two summary judgment decisions
actually said it.
-: Well here, let me just quote what the Appeals Court
said in 2014, and you tell me why I'm wrong.
It says the judge found, and the parties agree
that the 1942 Zoning Bylaw was in effect in 1948.
So it's not just the parties agree, it's the judge found.
-: Yeah but the judge found based on the stipulation,
and if you read the decision of the land court,
the decision of the land court uses the word stipulation.
-: Okay, okay thank you, I got that,
-: But it's irrelevant anyway, for the reasons about.
-: There's also case law, you know, stipulating to erroneous
legal rulings, I don't know if that, you know,
that has any finding effect.
I mean, there's some Appeal Court case law
about that kind of stipulation not being valid,
but it's not cited by either party,
but I have a pretty good recollection
that we've written on that the Appeals Court wrote
on that subject, I think I wrote it.
-: Can I ask you another, oh, sorry, go ahead.
-: No, no, go ahead.
-: You said the 1959 Zoning Bylaw defines frontage
as a public way or a way approved by the planning board,
is that in the record somewhere, that definition?
-: Yeah, go ahead.
-: It is I could find it if you'd like.
-: Like, I know the Zoning Bylaws volume three page 16,
if that helps you locate the definition of frontage.
-: So if I can find it, it's like that show name, that tune.
I can find it in 30 seconds here.
-: Oh, that's okay, we don't need to take up time
doing I just.
-: So the 1959 Zoning Bylaws in various locations
in the pleadings, but it's page 45 of my most recent
supplemental document.
And when you look at that page, that page 45,
what you're gonna see is Aden me,
and then it's actually on page 47.
Of course I put the whole bylaw, so it it's in there.
And what it says is that what it literally is,
in the exact paragraph that I quoted your Honor.
And it says, it actually says the word frontage
is used in this section shall mean a frontage
on a public street or on a way approved by the planning
board.
And then it goes on to say that properties of two acres
or more shall have frontage for a distance of 40 feet,
which is less than the zoning statute of 50 feet.
-: And I guess that was my question is,
like given that this change rendered it nonconforming,
and the point of paragraph four is to preserve buildability
when one thing was buildable already I just, it doesn't.
Does that make sense to use this definition of frontage?
-: It does number one because the statute requires it
and then the case law requires it.
But if you look at it, the language of the statute
actually requires that you engage in analysis
as to whether it was once buildable,
by going back to the Zoning Bylaw
and effect at the time, and looking to see,
did it meet of then existing requirements.
And so the then existing requirements
then existing before they even imposed the frontage
requirement for the first time on the lot,
had already defined the word frontage.
And the zoning act doesn't define frontage,
which is a bit of a confused issue.
But clearly with all your case law,
you look at the municipality definition, of course,
you're gonna do that, and it would be in the interest
of the act to do that under the purposes of the act,
which is to ensure safety, right?
How can you have a lot here that has frontage
on a right of way that goes through it for the benefit
of another lot.
And the plan doesn't show the minimum width,
doesn't show the bounds of it,
doesn't speak of the grade or the slope,
or the materials, of course, the zoning act
or the Zoning By law, and the town of Norwell
is going to require that the planning board weighing
whether the town can get safe access to the lot
for purposes of safety.
The whole concept, and that's why the 81 FF argument
doesn't even work, because by allowing the 81 FF
exemption, even if that is correct, in this case,
it allows a property owner to subvert the language
of the bylaw, which is there to ensure safety.
And that's why I think if we're gonna make an argument
as to why frontage isn't defined in the act,
it's because the legislature has left that up to the town
to determine, and at the time frontage as determined
by the town was to be on a street or a way approved
by the planning board, which is the other, you know,
I mean, to me, that's the answer.