24 Mass. App. Ct. 425 | Mass. App. Ct. | 1987
The general revision of the Subdivision Control Law effected by St. 1953, c. 674, § 7, inserted into G. L. c. 41, § 81L, which defines “subdivision”, a new exclusion: namely, “[T]he division of a tract of land on which two or more buildings were standing when, the subdivision control law went into effect in the city or town in which the land lies into separate lots on each of which one of such buildings remains standing . . . .” Perhaps the existence of the exclusion is not widely known; perhaps it is so clear as not to require interpretation. For whatever reason, we find no reported case in which the effect of the exclusion has been determined.
Citgo prepared a plan dividing the parcel into two lots, one to be sold and the other to be retained. This Citgo submitted to the planning board for an endorsement, under G. L. c. 41, § 8IP, that approval was not required because the plan was not a subdivision. Citgo’s contention, undisputed below,
As applied to this case, the text of the statutory exclusion is unambiguous, and Citgo falls within it. The exclusion for lots with two or moré buildings is distinct from the more commonly used exception, also in § 81L, for plans where every lot has the requisite frontage on a public way or other suitable way as defined in the statute. Thus, the board’s argument that the lot to be sold to Clean Harbors lacks adequate frontage misses the point. If plans under the provision in question must also qualify under the frontage exception, then the provision in question is surplusage.
The defendants argue that a literal reading of this exception would completely undercut the purposes of the Subdivision Control Law, as set out in G. L. c. 41, § 81M, by allowing a homeowner to use any detached garage, shed, or other out
Judgment affirmed.
The planning board’s claim upon appeal, that two affidavits are hearsay, was not raised below, and the grounds raised below for excluding them are not now argued. Thus, neither will be considered. Thibeault v. Massachusetts Elec. Co., 2 Mass. App. Ct. 24, 28 (1974). Liacos, Massachusetts Evidence 73 (5th ed. 1981).
The decision in Howland v. Acting Supt. of Bldgs. & Insp. of Bldgs. of Cambridge, 328 Mass. 155 (1951), suggests that the board could be correct in hypothesizing that the 1953 provision may have been inserted to deal with lots where a house was built in the back yard of another house, with no street frontage. The statutory language, however, is not nearly so narrow.