01/20/1993 ZONING BOARD OF APPEALS Minutes

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75a • 395 Mass. 757 .Wnaorcr V. Ip,raa. 700 (1981). The Court of Appeals asks us to interpret the first sentence of the fourth paragraph of The Zoning Act, G. L. c. 40A, 9 6 (1984 ed.), which exempts certain lots from in- creased zoning restrictions provided certain conditions are met, including the condition that the lot "at the time of recording or endorsement, whichever occurs sooner was not held in com- mon ownership with any adjoining land." While this case was pending at the Federal District Court leve), the Massachusetts Appeals Court affirmed a Superior Court holding that in the first sentence of the fourth paragraph of G. L. c. 40A, 9 6, the word "recording" refers "to the most recent instrument of record prior to the effective date of the zoning change from which the exemption is sought." Sieber v. Gauthier, Superior Court No. 40548 (Aug. 31, 1981), aff'd pub nom. Sieber v. Zoning Bd. of Appeals of Wellfleel, 16 Mass. App. Ct. 985 (1983). The following facts accompany the request for certification. The plaintiff Adamowicz and others own certain lots in Ipswich (town). These lots are not big enough to allow building under the town's restrictive zoning requirements. Before the enact- ment of The Zoning Act, G. L. c. 40A, by St. 1975, c. 808, 9 3, the plaintiffs could build on their lots because of "grand- father" provisions in the town's zoning by-law and in (1 5A of the older version of G. L. c. 40A (as amended through St. 1961, c. 435, H 1, 3). After Massachusetts enacted the 1975 Zoning Act and the town amended its zoning law in 1977 so as to require larger minimum lot size, the town refused to give one or more of the plaintiffs permission to build houses on their lots. The town assess that the 1975 Zoning Act dep- rived the plaintiffs of their "grandfather„ rights because they do not meet all of the conditions contained in the statutory language. The plaintiffs sued the town in Federal court under42 U.S.C. 9 1983 (1982), claiming that Massachusetts' deprivation of their preexisting building rights "inversely condemned” their reveals that the la sou separately owned• even though a previously recorded sundivisioo plan may reveal that the Iso was At one time pan of land held in corranon ownership? • 395 Mass. 757`' - _ 751) AJuwrkt r. Ip,rrA. . land, entitling them to an injunction or to damages. See Slit! Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621 (198 1) After the Massachusetts Appeals Court's decision in Sieber v. Zoning Bd. of Appeals of Wel yleet, supra, a judge of the Federal District Court concluded that Massachusetts law, as interpreted by Sieber, permitted the plaintiffs to build; thus. they could not assert a Federal claim of "taking," for nothing had been taken.' The plaintiffs' request for a mandatory injunc- tion ordering building permits was denied by the Federal Dis- trict Court judge on the basis of the Sieber decision. The town refused to issue the permits. The plaintiffs appealed. In the appeal to the Court of Appeals, the town stated that its refusal to issue the permits rested on its view that, in Sieber - v. Zoning Bd. ofAppeals of Wellfleel, supra, the Massachusetts Appeals Court incorrectly interpreted the first sentence of the fourth paragraph of G.. L. c. 40A, 16.4 The town contends that the Legislature did not intend to provide broad "grandfather !i t, clause" protection under the relevant sentence of G. L. c. 40A. $ 6. Thus, it claims that the language at issue does not protect owners of lots held in common at the time a deed or a plan on which they were shown was first recorded. The town con- cedes that under its interpretation the statutory language is meaningless because almost every lot in the Commonwealth was, at one time or another, part of a larger parcel of land that was later subdivided as shown on a recorded plan or a recorded deed. ' 'The judge also decided that the town's delay and refusal to follow Massachuscus law requiring issuance of the buildingpermits did not deprive the plaintiffs of any rights protected by 42 U.S.C. f 1983. 'Since the Sieber decision. ft town has refused to issue building permits to the plaintiffs, apparently on the mistaken belief that it is ria governed by decisions of the Appeals Court. "11 goes without saying that Appeal% Court decisions may appropriately be cited as sources of Mossachuwlt% law." Ford v. Flaherty, 364 Mass. 382.388 (1973). "An intermediate coup Is • maker of law in the same sense as the supreme coup." Kaplan. Do Intermediate Appellate Courts Have a Lawmaking Function?. 68 Mas% L. Rev. 10, 12 (1985). A town or any other person affected by an Appeal. Court decision is governed by the Appeals Court decision until and unle%% either that coon or this court declares otherwise..