In a recent opinion, the Appeals Court of Massachusetts reviewed a zoning appeal involving the merger of two adjacent lots. In Gallagher v. Zoning Bd. of Appeals of Falmouth (Mass. App. Ct. July 25, 2016), the plaintiff appealed a summary judgment order by the land court, which affirmed a decision of the zoning board of appeals merging the separately maintained lots for zoning purposes. Ultimately, the appeals court affirmed that determination as well.
In Gallagher, the two adjacent lots at issue were included in a subdivision plan and conveyed separately to the plaintiff and the plaintiff’s husband. The plaintiff’s house was located on one of the lots, while the other lot, owned by her husband, contained the carport. In 2000, the plaintiff applied to the city planning board to combine the lots and was granted an endorsement. However, the plan was never recorded. Until that time, the house lot and the carport lot remained in separate ownership by the plaintiff and her husband, respectively. The plaintiff’s husband conveyed the carport lot to the plaintiff before his death later that year. In 2013, the plaintiff requested a zoning determination from the building commissioner that the carport lot was a separate buildable lot, exempt from the increased area requirements of a 1993 zoning amendment. The commissioner found that the lots had merged, a decision that was affirmed by the zoning board of appeals and the land court. Specifically, the land court ruled that when the two lots came into the plaintiff’s common ownership, they lost grandfather protection and merged for zoning purposes.
The sole question for the appeals court was whether the plaintiff’s lots had merged or remained separate under the Massachusetts grandfather protection statute. Generally, adjacent lots in common ownership are normally treated as a single lot for zoning purposes. The appeals court explained that although the plaintiff and her husband separately owned the house lot and the carport lot, respectively, when those lots came into the plaintiff’s common ownership, they merged and thereafter would be treated as a single lot.
The appeals court went on to examine Massachusetts General Law c. 40A, § 6 , which provides grandfather protection from increases in lot area and frontage requirements only to nonconforming lots that are not held in common ownership with any adjoining land. The court found that while the grandfather protection applied to the carport lot at the time it was separately owned by the plaintiff’s husband, that protection was lost when it became held in common with adjoining land, which happened when he transferred ownership to the plaintiff. Accordingly, the appeals court upheld the determination that the grandfather exemption to frontage requirements did not apply to the plaintiff’s lots, which had merged.
If you are uncertain of your legal rights regarding the use or ownership of property, the knowledgeable real estate attorneys at Pulgini & Norton can answer your questions. Our Boston land use lawyers help clients obtain building permits, represent them in administrative and court proceedings, and assist in a variety of other real estate matters. To speak with one of our Massachusetts attorneys, schedule a consultation with Pulgini & Norton by calling (781) 843-2200 or contacting us online.
More Blog Posts:
Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015
Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015