This is a bill in equity brought in the Superior Court by an owner of land in Attleboro by way of "appeal” from a deсision of the board of appeal. G. L. (Ter. Ed.) c. 40, § 30, as appearing in St. 1933, c. 269, § 1, and as *629 amended by St. 1935, с. 388, §§ 1 and 2, by St. 1941, c. 198, §§ 1 and 2, by St. 1945, c. 167, and by St. 1951, c. 205. The board upheld the inspector of buildings in his refusal of a building permit to the рlaintiff and declined to grant either a “special exception” or a variance. The Superior Court declined to annul or to modify the decision of the board. The plaintiff appeals.
The zoning ordinance of Attleboro took effect on February 10, 1942. Section 12 of the ordinance, in so far as need be stated for the purposes of this case, read, “In single residence districts . . . there shall be provided for each dwelling house . . . hereafter constructed, аltered or placed, a lot containing not less than . . . twelve thousand square feet . . . and hereafter no dwelling house . . . shall be erected or placed on a lot containing less than suсh minimum area; but nothing contained in this section shall prevent the erection or placing of any building on any lot . . . containing a smaller area, provided such lot on the effective date hеreof does not adjoin other land of the same owner available for use in conneсtion with said lot.”
“No lot on which a dwelling house . . . is situated, whether heretofore or hereafter placed, shall be reduced in area if such lot is smaller than is hereby prescribed, or if by such reduction it would be made smaller than is hereby prescribed . . ..”
There were also provisions for “special exceptions” in certain circumstances which need not be set forth in detail.
At the timе when the ordinance took effect the plaintiff was the owner of a tract of land on the northerly side of Payson Street in an area which was restricted by the ordinance to single dwellings tо be located on lots not smaller than 12,000 square feet. The plaintiff’s tract contained 12,793 squarе feet. It was composed of two so called lots shown as lots 11 and 12 on “New Plat #49 on file at the Assessors’ Office.” Each “lot” contained slightly more than 6,000 square feet. The plaintiff had acquired thеse “lots” at different times from different sources. There was a dwelling house and garage on “lot 11.” Thеre was only a garage *630 on “lot 12.” In 1944 the plaintiff sold “lot 11” with the buildings thereon to one Morris. The plaintiff now desires to build another dwelling house on “lot 12.”
It is plain that any house now built by the plaintiff on “lot 12” would not bе provided with a lot containing not less than 12,000 square feet as required by the ordinance for any dwelling house thereafter erected. But the plaintiff argues that he should have the benefit of the еxception in § 12 of the ordinance that the section shall not prevent the erection of any building on any lot containing a smaller area if such lot on the effective date of the оrdinance did not adjoin other land of the same owner available for use “in connectiоn with said lot.”
The difficulty with this argument is, we think, .that on the effective date of the ordinance the plaintiff’s lоt did not contain a smaller area than 12,000 square feet. His lot was then composed of the two “lots” shown on the assessors’ plan, contained slightly more than 12,000 square feet and had one housе upon it. There is nothing to show that any part of this tract had been physically walled off or seрarated in any way from any other part, if that would make a difference, which we do not decide. The plaintiff’s argument would require us to construe the word lot as used in the exception in § 12 as rеferring to a lot which corresponded with some “lot” shown on a plan in the assessors’ officе rather than to the lot as it actually existed upon the surface of the earth. We find nothing in this record to suggest that lots under the ordinance were to be determined by assessors’ plans or assеssments or according to sources of title. It would seem to us that an attempt to do this might lead tо confusion in the enforcement of the ordinance.
The idea behind the exception in § 12 оf the ordinance, even if obscurely expressed, seems to us to have been to save а person who at the time when the ordinance took effect had a vacant tract оf a total area less than 12,000 square feet from the hardship of not being able to use it at all fоr residence purposes.
The result is that when the ordinance took effect the *631 plaintiff’s land, like other land in the zone not within the exception, bеcame subject to the restriction that he could not build a new dwelling upon it without providing a 12,000 foоt lot for the new dwelling.
There is nothing in the record to show that the plaintiff comes within the class of thоse who may be allowed “ special exceptions” under § 12.
It was for the board to decide whether a variance ought to be granted.. No error appears in its refusal.
Decree affirmed.