Friday, February 1, 2019

Matters Outside Your Control Can Cause Lots to Become Unbuildable.

I have difficulty, sometimes, convincing people who own abutting lots to convey them into separate ownership to prevent merger for
zoning purposes. Like most things, its all about the money; so I try to make the argument that the potential loss of a valuable house lot far exceeds the costs of placing the lot in separate ownership.

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

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