Massachusetts Real Estate Lawyer Blog
Before making changes to an existing building or constructing a new one, property owners may have to obtain approval from the local government. In a May 30, 2017 case, the Massachusetts Land Court reviewed a zoning board decision granting a variance to the defendants for the construction of a new house on their vacant lot. The plaintiffs appealed the variance, which would allow the defendants’ house to be 15 feet closer to the plaintiffs’ property than permitted by the setback.
The defendants in the case owned two lots that were conveyed to them by a single deed in 1986. The defendants had built a house on one of the lots, while the other lot remained undeveloped. The plaintiffs in the case resided in a house located next to the defendants’ vacant lot. The vacant lot was oddly configured, making improvement of the property difficult due to its unique shape and the presence of wetlands. The zoning board ultimately granted the variance, finding that these factors created a hardship to the defendants that justified relief in order for them to develop the property. On appeal, the plaintiffs claimed that the proper requirements for issuing a variance were not met, and as a result of the variance, they would suffer from increased density, reduction in privacy, loss of view, decrease in property value, safety infringements, and instability to their property.
The primary issue for the land court was whether the two lots owned by the defendants had merged for the purposes of zoning, which would result in the loss of grandfathered status and subject the property to the contiguous upland requirement in order to be buildable. The merger doctrine provides that adjoining land in common ownership must be added to nonconforming land in order to bring it into conformity or reduce the nonconformity. The grandfather provision at issue in the case exempted certain lots from increases in lot area, frontage, width, yard, or depth requirements, protecting owners whose lots previously conformed with zoning requirements. However, the exception was not available to lots held in common ownership with an adjoining lot, which may be combined, or merged, to reduce or eliminate the nonconformity. The bylaw provided that lots held in common ownership are entitled to grandfathering for five years after the effective date of a zoning change, if certain requirements are met, after which the lots are combined or merged to reduce nonconformity.
The defendants argued that the contiguous upland requirement is not a dimensional requirement but a restriction on the land different from an increase in area, frontage, width, yard, or depth, and as a result, the merger doctrine does not apply. The land court, however, held that previous case law indicated that the contiguous upland requirement at issue was a dimensional change, as an increase to the lot area requirement in the bylaw, and accordingly, it was subject to the merger doctrine. The land court went on to find that the defendants’ vacant, nonconforming lot had merged with the defendants’ adjoining conforming lot to constitute one conforming lot. Since the vacant lot was no longer a separate buildable lot that could be the subject of a variance such as the one granted by the zoning board, the decision was reversed.
The Massachusetts firm of Pulgini & Norton can advise individuals in all matters regarding residential real estate. To discuss your property needs with one of our experienced land use attorneys, schedule an appointment by phone at (781) 843-2200 or submit our contact form online.
More Blog Posts:
Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016
Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit, Massachusetts Real Estate Lawyer Blog, published May 15, 2017