01/20/1993 ZONING BOARD OF APPEALS Minutes

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762 395 Mass. 757 Adaw,tr V. trwcx. (2) Does the first sentence of the fourth paragraph of G. L. c. 40A, 16. refer to the most recent instrument of record prior to the effective date of the zoning change from which the \� exemption is sought? The town argues that the common ownership requirement in the sentence at issue applies to the status of the lot as of the date that the first instrument on which the lot is shown is recorded. It maintains that the Sieber v. Gauthier decision was in error in concluding that the common ownership requirement referred to the status of the lot at the time of the most recent instrument of record prior to the effective zoning change. We do not agree. The language used by the Legislature suggests that it is the status of the lot at the time it is recorded which is significant, rather than its status at the time that a plan on which it first appeared was recorded. Because, grammatically, the modifying phrase L"which at the time of recording or en- dorscment"1 must refer to the last antecedent phrase 1"a lot for single family ... residential use'1, see Moulton v. Brookline Bd., 385 Mass. 228, 230-231 (1982); Druzik v. ! t� Rent Control Board of Health of Haverhill, 324 Mass. 129, 133 (1949), the sentence means that the status of the lot immediately prior to the zoning change is controlling. The first recorded instrument on which the separate lot is shown is almost always a subdivi- sion plan and by definition such a plan includes adjoining lots owned by the same person or entity; therefore, any other stat- utory construction would make the statute ineffective. We con- clude that the statute looks to the most recent instrument of record prior to the effective date of the zoning change. k►s bccwAw such a plan by its very nature implies that the lots ereaud shoreoa are all initially in common ownership and then subsequently decdul to individual owners. M nes result of interpreting Section 6 to require separate ownership at the time of recording or endorsement of a subdivision plan Is to attribute a'Cawh•22' menWity to the Legislature's intent. One cannot have separate ownership before the plan because there must be a plan showing the tract of ltd so divided before lots may be separately deeded and owned. Now. ever, if there is such a plan, the separate ownership criteria of Section 6 would never be satisfied, even to subsequent individual lot owners, because tn,tWly all bat shown on the plan were commonly owned." 395 Mass. 757 �• 7h.1 Adawio r. 1pwkb. Our conclusion was prefigured in dicta from other cases. In Sturges v. Chilmark, 380 Mass. 246, 261 (1980), a declaratory judgment was sought as to the effect of the phrase "adjoining land" contained in the exemption provided by G. L. c. 40A, § 6. As in the instant case, all of the Sturges lots were held in common ownership at the time the plan creating the lots was recorded. Although our discussion of the provisions of 16 other than the meaning of "adjoining land" was dictum, we said, "Section 6 is concerned with protecting a once valid lot from being rendered unbuildable for residential purposes, assuming the lot meets modest minimum area ... and frontage ... requirements." Sturges v. Chilmark, supra at 261. Thal language supports the construction that the status of ownership of a lot is determined as of the date of the zoning change.' Other decisions by this court and the Appeals Court also assume this interpretation, but did not base their conclusions on this ground. See Warren v. Zoning Bd. of Appeals of Amherst, 383 Masa. 1, 7-8 (1981); Girard v. Board ofAppeals of Easton, 14 Mass. App. Cf. 334, 336-337 (1982). (3) "Does a lot meet the requirement set forth in the quoted statutory language if the most recent instrument of record prior to a restrictive zoning change reveals that the lot was separately owned, even though a previously recorded subdivision plan may reveal that the lot was at one time part of land held in common ownership?' Because of our previous answers to questions one and two, the answer to question duce is "yes." Our construction of the relevant sentence of O. L. c. 40A, 16. is required not only by logical and reasonable statutory construction but also by Use maxim that statutes aro to be construed so as to avoid on 'There Is other language In Sturges v. Chilmark, supra, however, which the town suggests supports the opposite conclusion: "Rte plaintiffs' lots would mat all the requirements for such an exemption under 16. unless at the time of the recording of the plan, the lou were 'held in common ownership with any adjoining land.' O. L. e. 40A, 16." Id. at 261. In the Sturges case, the circumstances at the time of the recording of the plan and at the time of the zoning change were the same and nothing in that case depended on the issue argued here.