Blog Archive

Tuesday, May 15, 2018

A Tale of Two Adjacent Lots

Like most matters, a property owner’s request for enforcement of a municipality’s zoning bylaw is subject to a limitation period.
Recently, in Bruno v. Zoning Bd. of Appeals of Tisbury, 93 Mass. App. Ct. 48 (2018), the Appeals Court had an opportunity to analyze the interplay between the statute of limitations contained in the Zoning Act, G.L. c. 40A, § 7, and the endorsement of an approval not required (ANR) plan showing zoning violations. Specifically, the Appeals Court held that the limitations period begins to run from the date one of the lots on the ANR plan lots is conveyed rather than the date the zoning board approved the ANR plan.

Specifically, the Appeals Court held that the limitations period begins to run from the date one of the lots on the ANR plan lots is conveyed rather than the date the zoning board approved the ANR plan.

The Basics

The Bruno case involves the interaction of fundamental zoning principles and reached a conclusion that is logical based upon these maxims, but which had not yet been explicitly decided in the Commonwealth. These principles include:
• Statute of Limitations. A statute of limitations bars claims after a specified period by establishing a time limit for suing in a civil case, based upon the date when the claim accrued. The Zoning Act, G.L. c. 40A, contains statute of limitations in § 7. While overly simplistic, there are three applicable limitations for enforcement in the Zoning Act: for structures built pursuant to a building permit, 6 years; for structures not built pursuant to a building permit, 10 years (which structures are now deemed to have “grandfathered” status and constitute legally nonconforming buildings); and for uses pursuant to a building permit, 6 years. Notably, there is no limitations period relative to an unauthorized use that is not identified in a building permit, and an action to enforce a violative use may be brought at any time.
• ANR Plan. An ANR plan is a plan showing division of a property that does not require approval under the subdivision control law. The plan is submitted to a municipality’s planning board and, if approval is not required under the subdivision control law, the planning board must endorse the plan. A planning board’s review of such plan is limited to whether the plan shows a subdivision – it does not look at the zoning compliance of the resulting lots as that is beyond the board’s purview. While a planning board’s endorsement of an ANR plan may be appealed, such appeal concerns only whether the planning board’s determination as to whether the plan is entitled to endorsement was proper.
• Doctrine of Merger. The common law doctrine of merger provides that adjacent nonconforming lots held in common ownership shall be treated as “merged” as a single lot for zoning purposes. The underlying objective of the doctrine is to reduce nonconformities. An example may be helpful. A residential zoning district requires lots to have a minimum size of 40,000 sq. ft. I own two adjacent lots, each containing 20,000 sq. ft. For zoning purposes, those lots will be treated as a single, merged lot.

The Case

In Bruno, the defendant property owners and their family owned a parcel in Tisbury on Martha’s Vineyard. In 2001, the property owners obtained endorsement of an ANR plan, which divided the parcel into two adjacent lots – Lot 1 and Lot 2. Lot 1 contains an accessory structure that had been permitted for use as a guest house, and Lot 2 contains the main single-family structure. While the ANR plan proposed to divide the original parcel into two lots, which would result in certain dimensional violations of the zoning bylaw, the owners continued to hold the lots in common ownership. Indeed, after 2001, the property owners figuratively put the endorsed ANR plan in a drawer and took no further action with respect thereto. In 2005, and after the passage of four years, the defendant property owners then sold Lot 2. Subsequent thereto, in or around 2013, the plaintiffs became aware of the zoning violations and sought enforcement. Enforcement was denied, and affirmed by the zoning board of appeals, on the basis that the enforcement was untimely.i

On appeal to the Land Court pursuant to G.L. c. 40A, § 17, the Court considered a novel issue: whether the 10-year statute of limitations for zoning violations shown on an ANR plan commenced running upon endorsement of the ANR plan or upon alienation of one of the lots, resulting in realization of such violation. The Court held that, as the enforcement request was not initiated until 2013 – more than 10 years after the endorsement of the ANR plan – it was time-barred. The Court reached such conclusion on the basis that “in the eyes of the law, there were … violations in existence starting when the ANR plan was endorsed.”

On appeal, the Appeals Court reversed that portion of the Land Court’s decision relating to the 10-year statute of limitations, holding that “the ten-year statute of limitations under G.L. c. 40A, § 7 – which governs actions to compel the removal of a structure because of alleged zoning violations – commenced at the time that the lot containing the primary house was conveyed, rather than at the endorsement of the approval not required (ANR) subdivision plan.” In reaching this conclusion, the Appeals Court relied upon the common law doctrine of merger and determined that “Lot 1 and Lot 2 must therefore be viewed as a single conforming lot until the 2005 conveyance, regardless of the prior ANR subdivision.”

As pointed out by the Court, not only was the decision logical in light of the applicable doctrines, but it also preserves the interests of neighboring property owners. “If we construed the statute of limitations as commencing upon the ANR endorsement, any property owner could obtain an ANR endorsement for a subdivision plan and then wait ten years to separate the lots, thus creating nonconforming lots without any opportunity for the town to enforce its zoning by-law. Our construction, by contrast, allows the town ten years after the lots are separated to enforce its zoning by-law, consistent with the Legislature’s intent.”

i The municipality relied upon the 6-year statute of limitations in § 7, which was indisputably erroneous.

Originally posted April 25, 2017 on

Kim Bielan is an associate in the litigation and zoning and land use departments of the Braintree-based firm of Moriarty, Troyer & Malloy, LLC.  She represents a variety of clients, including condominium associations, developers, and individual homeowners. Kim’s practice focuses primarily on real estate litigation, with an emphasis on zoning and land use matters. She also represents clients on a variety of real estate permitting matters and frequently appears before municipal boards to permit projects and to represent the interests of abutters and neighborhood groups; she can be contacted by email at

Friday, April 20, 2018

A Remembrance: Marvin W. Kushner 1935-2018

The young lawyer was saddled with his first major title problem.  A colleague calling Marvin Kushner.  Marv took the call, listening to
Marvin W. Kushner 1935-2018
an explosion of verbiage from the harried and anxious new lawyer, who was lost for an approach and a solution.  After gleaning the facts, Marv recognized that the lawyer had to start at the registry of deeds.  He calmly began his response with, “Ok.  I understand the issue.  Now tell me, which way is your car pointed…”    

And that was the essence of Marv’s professionalism, personality and character. He was blessed with calm insight and the ability to absorb the fine points of real estate law and practice.  He was a craftsman in the practice.  But his true professionalism came with his willingness to share his knowledge and to assist other lawyers, both new and accomplished.

His participation in REBA, and its predecessor, the Massachusetts Conveyancers Association, helped define the practice of real estate law in Massachusetts at a time when the conveyancing bar was under assault by non-lawyers and out-of-state entities attempting to redefine the practice of real estate law as a function not requiring lawyers.

Those who knew him admired his knowledge of the law, and his mediation and negotiation skills in dealing with colleagues in a time-honored and gracious manner.  Of course, opposing counsel respected Marv, recognizing his fairness and his ability to resolve complex legal problems. Marv was truly a lawyer of the old school. 

A founder of several law firms bearing his name, most recently Kushner Sanders Ravinal LLP, which thrives today, Marv retired from the practice of law in late 2012.  Following his admission to the bar in 1958, he had a long and prestigious career, concentrating his practice in title and conveyancing matters, real estate and business law.

Marvin served as past president of the Massachusetts Association of Bank Counsel, and later on the Massachusetts Conveyancers Association board of directors, and as the founding chair of the Association’s Residential Conveyancing Committee.

Marv remained true to the practice of law until his retirement in 2012.  His death last March concluded a distinguished career, in which he provided our noble profession with the essence of fine workmanship in representing buyers, sellers and lenders. 

       Dick Keshian
                                                                                                                                                                           Chris Kehoe
                                                                                                                                                                           Peter Wittenborg

Thursday, April 19, 2018

Ten Years after Gallivan v. Zoning Bd. of Appeals of Wellesley: A Retrospective

Join Diane C. Tillotson, Esq. of Hemenway & Barnes LLP, and Daniel P. Dain, Esq. of Dain/Torpy for a discussion of the line of judicial decisions that started with Gallivan v. Zoning Bd. of Appeals ofWellesley, 71 Mass. App. Ct. 850(2008), which turns 10 years old this June. In Gallivan, the Appeals Court interpreted the relevant provisions of G. L. c. 40A, §§ 7 & 8 to bar an abutter's challenge to a building permit, where the abutter had notice of the application for the building permit and an appeal to the local zoning board of appeals was not filed within 30 days of the issuance of the permit. A subsequent enforcement action is not available to such an abutter. The Supreme Judicial Court confirmed this rule in Connors v. Annino, and there have been many trial and appellate-level decisions since Gallivan applying its holding to different fact patterns. The discussion, led by Diane and Dan, will address the Gallivan rule itself, the reasoning behind the rule, subsequent decisions and what remains undecided in the 10 years since the Appeals Court first handed down the Gallivan decision in 2008.