Massachusetts Property Owner Wins on Appeal After Building Permit Denied

Constructing a dwelling on a vacant lot usually involves some legal considerations, as well as approval from the local Massachusetts zoning authority.  Individuals who are denied a building permit may appeal to ensure that the matter was correctly decided under the law.  In a June 3, 2019 Massachusetts property case, the plaintiff brought an appeal before the Land Court after she was denied a building permit to construct a single-family home on her land.  The central issue in the case was whether the doctrine of merger precluded her lot from being treated as a preexisting, nonconforming lot exempt from local zoning ordinances.

The plaintiff’s lot was conveyed to her by her grandfather, who had also conveyed a second lot to the plaintiff’s sister.  The two lots were divided by a private way that continued through the subdivision.  The local zoning board concluded that the two adjacent lots had merged when they were held under common ownership by the plaintiff’s grandfather.  As such, the zoning board determined that the plaintiff’s lot did not meet the requirements of a preexisting, nonconforming lot.  The zoning board therefore denied the permit, finding that the lot was unbuildable under the requirements of the local ordinance and not subject to any exemption as a preexisting, nonconforming lot.  The plaintiff, in turn, asserted that her lot was entitled to grandfathering protections and argued that the private way running between the lots precluded merger.

Massachusetts law protects some preexisting lots from having to comply with increased area, frontage, width, yard and depth requirements of subsequently enacted zoning ordinances in some situations.  To fall within the exemption provided under the statute, however, the lot may not have been held in common ownership with any adjoining land.  In other words, the lot cannot have merged with any other lot, or it may lose its grandfather status.

Under the doctrine of merger, undersized, adjoining lots that are held in common ownership will be treated as a single, merged lot for zoning purposes if doing so would eliminate or minimize the non-conformities.  However, in certain situations, a substantial barrier which prevents the use of the property as a contiguous unit may prevent the merger of two adjacent lots in common ownership.

The Land Court noted that other lot owners within the subdivision were granted the right to pass over the private way.  The court concluded that the nature of the private way sufficiently interrupted the use of the lots at issue, so as to prevent them from being used as one single property.  Accordingly, the court ruled that the merger doctrine did not apply to the plaintiff’s lot.  The court reversed the permit denial and remanded the case back to the zoning board for a determination as to whether the plaintiff’s lot was thus buildable as a preexisting, nonconforming lot.

At Pulgini & Norton, our Massachusetts real estate attorneys can assist individuals in legal matters concerning residential property.  We handle a range of issues, from mortgage financing and purchase and sale agreements, to tax liens and foreclosures.  If you are seeking solutions to maximize the value of your home, discuss your goals with an experienced property lawyer at Pulgini & Norton.  Request an appointment today by calling (781) 843-2200 or contacting us online.

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