33 Mass. App. Ct. 374 | Mass. App. Ct. | 1992
The Seguins, owners of a one-acre lot fronting on a paved public way, seeking to divide the lot into two lots for single-family residences, applied for and were granted a variance from the 100-foot frontage requirement of the Upton zoning by-law. One of the two lots was to have frontage of exactly that length; the other would have a 98.44-foot frontage. Armed with the variance from the zoning board of appeals, the Seguins submitted a plan to the
The board acted correctly in denying the endorsement. In considering an application for an endorsement that its approval is not required, “a planning board’s judgment is confined to determining whether a plan shows a subdivision.” Smalley v. Planning Bd. of Harwich, 10 Mass. App. Ct. 599, 604 (1980). A subdivision is “the division of a tract of land into two or more lots . . . [except where] every lot within the tract so divided has frontage ... of at least such distance as is then required by zoning or other ordinance or by-law if any . . . and if no distance is so required, such frontage shall be of at least twenty feet.” G. L. c. 41, § 81L, “Subdivision,” as amended by St. 1956, c. 282. As one of the lots shown on the plan lacked the zoning by-law’s required frontage of 100 feet, the plan showed a subdivision and thus required approval. Hrenchuk v. Planning Bd. of Walpole, 8 Mass. App. Ct. 949 (1979). The planning board’s approval under the Subdivision Control Law would be independent of the approval of the variance by the board of appeals under the zoning by-law. Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802, 808 (1981). Cf. Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 531 (1990).
The Seguins argue that the words, “frontage ... of at least such distance as is then required by zoning or other ordinance or by-law” (§ 81L, “Subdivision,” emphasis added), should be read as referring to the 98.44-foot frontage allowed by the zoning board’s variance, with the result that each lot
Here, in contrast, the Seguins have been given an unappealed variance to create a lot lacking the frontage required by the zoning by-law. Their plan shows a subdivision and accordingly must be reviewed under the approval procedure with a view to vindicating the concerns of the Subdivision Control Law, which pertain primarily to considerations of access for vehicles and utilities. Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. at 810-811. That the proposed lots appear on the present record to present no problem in
The order denying summary judgment is affirmed.
So ordered.
In the Adams case, the Concord zoning by-law stated that “[ljimited dwelling structures or garden apartments need have only such frontage on public or private ways as may be approved by the [b]oard of [ajppeals.” 356 Mass, at 711. In Haynes v. Grasso, the Needham zoning by-law allowed the board of appeals “to grant permits ... for the erection ... of buildings . . . upon . . . lots, although containing less area or less frontage than is hereby prescribed,” where it found that surrounding development conformed generally to the smaller dimensional requirements of earlier bylaws. 353 Mass, at 732-733. Compare Emond v. Board of Appeals of Uxbridge, 27 Mass. App. Ct. 630, 631-632 (1989).