I have difficulty, sometimes, convincing
people who own abutting lots to convey them into separate ownership to prevent
merger for
A recent Appeals Court decision further
complicates matters, and creates the potential for new unforeseen consequences.
In Burdo
v. Zoning Bd. of Appeals of Chelmsford, 94 Mass. App. Ct. 1109, 113 N.E.3d 934 (2018), the Murphys
purchased two adjoining lots described in the same deed in 1986. Later they
built a home on one of the lots. In 2012 the Murphys planned to construct a
house on the second lot, but because wetlands squeezed the area available for
construction, they applied for a variance from the rear yard set back
requirement. The Chelmsford Board of Appeals granted the variance, and the
abutters appealed.
The Land Court first concluded that the abutter/appellants had
Standing whereas the proposed construction would require a retaining wall and
cutting of trees and roots, which could cause some trees to die, which would
potentially impair the abutters’ privacy, lateral support and result in a
potential fire safety concerns. As unusual as those findings may be, the more interesting
part of the case had to do with the issue of “merger”. The Board of Appeals
found that the lots had not merged, however, on appeal the Land Court found
that because the Zoning Bylaw was amended in 1998 to require 80% of the minimum
lot area to be contiguous non-wetland “upland”, and neither of the lots met
that requirement, that the two lots had merged for zoning purposes. The
contiguous upland requirement is a dimensional zoning requirement, and because
of common ownership of the lots, the lots lost their protected status under MGL
Chapter 40A §6.
On further appeal, the Appeals Court put a nail in the proverbial
coffin when it concluded: “Because the two lots
merged, the judge correctly found that the board exceeded its authority in
granting the variance. Once the lots merged, they could not be separated. Asack v. Board of Appeals of Westwood, (1999). When a landowner has already built one
house on her land, there can be no hardship under G. L. c. 40A, § 10, based on the owner's desire to build a second
structure. See Bruzzese v. Board
of Appeals of Hingham, 343 Mass. 421, 423-424 (1962).” Burdo
v. Zoning Bd. of Appeals of Chelmsford, 94 Mass. App. Ct. 1109, 113 N.E.3d
934 (2018).
Not only does the case create concerns about
infectious invalidity arising from changes in obscure zoning requirements, it
also creates concerns about the potential impact that migrating wetlands may
have on a lot. Consider the situation where an older plan of land shows two
lots that meet the minimum upland requirement; we cannot rely upon that plan
today as it would be necessary to verify the current location of wetlands
before we can assume that the lots are still lawful building lots.
So,
when I get asked what could go wrong that would cause lots to become
non-conforming and automatically merge, here are a few examples:
1.
A zoning change increasing the minimum lot size, or frontage requirements, could
render a lot non-conforming;
2.
A zoning change altering minimum dimensional requirement could render either of
your lots non-conforming, including: a
change to the minimum upland requirement, or the prohibition of irregular lots
and/or the adoption of irregularity co-efficient;
3.
It is not uncommon for a change to the definition of “lot frontage” or “front
lot line” to require new geometric calculations that cause lots to become
non-conforming. Front lot line definitions now often require minimum lot width
to run to the depth of the front building wall;
4.
If one or more of the lots were created by a variance or special permit, if the
rights authorized by a variance are not exercised within a year, the variance
will lapse; and special permits lapse within a specified period, not more than
three years;
5.
Even without a zoning change, a lot may be rendered non-conforming by matters
outside of the landowners control. For example, wetlands areas could migrate
into one of your lots, causing the lot to become non-conforming because of
minimum upland (non-wetlands) requirements; and
6. I’ve also seen local officials change their
interpretation of the definition of “front lot line”, which caused half the
lots in a subdivision to become non-conforming.
Although
not necessarily a merger issue, a zoning change on abutting land could trigger
new setback requirements on your parcel which negatively impact the use of your
parcel. For example, if abutting land were to be re-zoned for residential use
(or just used for residential purposes) some bylaws require a significant 50 or
100 foot buffer between residentially used land and a commercial or industrial
use.
Like
my physicians keep telling me “It’s better to be safe than sorry”. Abutting
lots should not be held in common ownership; especially in the towns that
consider the adoption of zoning amendments a bi-annual ritual.
A former REBA president, Paul Alphen currently
serves on the association’s executive committee and co-chairs the long-range
planning committee. He is also a member
of the Executive Committee of the Abstract Club. He is a partner in the
Westford firm of Alphen &
Santos, P.C. and
concentrates in residential and commercial real estate development, land use
regulation, administrative law, real estate transactional practice and title
examination .As entertaining as he finds the practice of law, Paul enjoys
numerous hobbies, including messing around with his power boats and fulfilling
his bucket list of visiting every Major League ballpark. Paul can be contacted at palphen@alphensantos.com
