I am willing to make two predictions at this time regarding coming trends in local residential real estate. First, as more of the “Baby Boomer Generation” approaches retirement age, the Boomers will jettison their maintenance-heavy two-story colonials and seek the relative ease of condominium life (yours truly being an exception), and second, as the market for new buildable lots increases, there will be a renewed interest in attempting to build on existing parcels which may benefit from existing private ways and paper street. I can make the second prediction based upon the questions that are coming across my desk, plus the recent Land Court decision by Justice Cutler in Williams v. Norwell Bd. of Appeals, 10 MISC 419885 JCC, 2013 WL 139534 (Mass. Land Ct. Jan. 11, 2013)
Williams obtained a building permit on an existing 2.076 acre parcel of land, which was overturned by the Norwell Board of Appeals. The local Zoning By-law requires that all lots have frontage on a street or way shown on an approved subdivision plan or being suitable in the opinion of the Planning Board (like the language in MGL Chapter 41, Section 81L). Williams argued that he was exempt from the local requirement because his lot was protected by MGL Chapter 40A, Section 6 which states:
“ Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.” Mass. Gen. Laws Ann. ch. 40A, § 6 (West)
Justice Cutler concluded that Williams almost had a buildable lot, but he was unable to prove that he has the requisite fifty feet of frontage. William’s argument was based primarily on his reference to a “right of way” contained in a deed, but the right of way was not improved on the ground. As Justice Cutler summarized: “…a mere grant of a ‘right-of-way’ across land of others to access a public way, does not necessarily qualify as ‘frontage’ for purposes of § 6, particularly where there is no evidence that it ever existed on the ground, or was used for access to a public way.” Furthermore, “…as long as the Plaintiff is claiming to have frontage on a private way in existence prior to subdivision control in Norwell, he cannot avoid an adequacy determination by the Planning Board, with respect to the statutory 50–foot minimum needed to qualify the Lot for separate lot protections under § 6. And it is undisputed that the Planning Board has not made such a determination with regarding the right-of-way across Lot 62.” Williams v. Norwell Bd. of Appeals, 10 MISC 419885 JCC, 2013 WL 139534 (Mass. Land Ct. Jan. 11, 2013).
Invest in condo development but use caution when attempting to develop land with questionable frontage.
PAUL F. ALPHEN, ESQUIRE
BALAS, ALPHEN & SANTOS, P.C.