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Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit

In some cases, home owners may need to seek approval from local officials before making significant changes to their properties. In a May 5, 2017 opinion, the Massachusetts Land Court reviewed a zoning board decision rejecting a building permit application filed by the plaintiff.  The key question for the court was whether a vacant, dimensionally non-conforming parcel of land merged for zoning purposes with an adjacent property, therefore rendering the vacant parcel separately unbuildable.construction

The vacant parcel at issue was held in trust, with the plaintiff and her mother as trustees.  The plaintiff also owned, in her individual name, an adjacent property with an existing house. The plaintiff filed a building permit application to construct a single-family home on the vacant parcel, which was denied on the ground that it was under common control with the adjacent parcel.

In Massachusetts, the doctrine of merger provides that adjacent lots in common ownership will normally be treated as a single lot for zoning purposes in order to minimize non-conformities.  Once merger occurs, it cannot be undone.  In other words, a person owning adjoining lots may not artificially divide them in order to restore old record boundaries and obtain a grandfather non-conforming exemption.  Instead, to preserve the grandfather non-conforming exemption, the lots must retain their separate identity.

In reviewing the case, the court observed that ownership of the two properties was nominally different, since the vacant parcel was held in trust and the other individually in the plaintiff’s name.  Nevertheless, common ownership for the purposes of merger is determined not by the form of ownership but by control.  Since the plaintiff’s control over her individual property was not disputed, the relevant inquiry for the court was whether the plaintiff had it within her power or legal control to use the adjoining trust land in order to avoid non-conformity.

The court first looked at the trust document, explaining that the plaintiff’s control over the trust parcel depended on her powers as a trustee.  The court concluded that the trust clearly and unambiguously provided the plaintiff with legal control over all of the trust’s real estate, including the trust’s vacant parcel.  In addition, the court found that the plaintiff in fact exercised legal control over the property by obtaining estimates for the proposed construction, completing and submitting the septic and building permit applications, communicating with town officials regarding the applications and responding to their inquiries, and appealing the decision of the zoning board.  Determining that the plaintiff had legal control over both the trust’s vacant parcel as well as her adjacent individual property, the court ruled that the properties merged for zoning purposes.  As a result, the vacant lot was not separately buildable.

The hardworking land use attorneys at Pulgini & Norton can provide legal advice regarding all aspects of Massachusetts residential real estate.  We have represented individuals involved in home purchases and sales, the building permit process, mortgage re-financing, and more.  To learn more about your options, contact Pulgini & Norton by phone at (781) 843-2200 or online and schedule your consultation.

More Blog Posts:

Massachusetts Homeowners Win Breach of Contract Claim Against Corporation in Property Dispute, Massachusetts Real Estate Lawyer Blog, published September 5, 2016

Massachusetts Property Owners Object to Modification of Subdivision Plan By Developer, Massachusetts Real Estate Lawyer Blog, published November 7, 2016

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