Posted by: Patricia Salkin | December 27, 2008

Adjacent Property Owners Are “Persons Aggrieved” for Purposes of Zoning and Appeals Court Finds that Two Lots in Single Ownership Merged for Purposes of Zoning

Gallo owns two adjacent lots which have been held in common ownership since at least 1945. One lot contains a residence (and is approximately 13,418 square feet) and the second lot has never been developed (and is approximately 12,918 square feet).  Since 1956 the zoning regulations require 20,000 square feet and 125 feet of frontage for a buildable lot.  Neither lot meets these requirements. Gallo sought special permits to construct a new house on the undeveloped lot and to remove the existing house on the other lot and replace it with a new house in a different footprint.  His neighbors, the Dwyers, whose property abuts the undeveloped lot, unable to attend the public hearing due to a death in the family, sent a letter in protest to the construction on the lot. The Board voted to grant the special permit, concluding that a variance was not needed since the lot retained non-conforming use status.  The Board also determined that neither a special permit nor variance was needed for the reconstruction on the second lot.  The Dwyers appealed and although Gallo asserted that the Dwyers did not have standing to appeal the zoning decisions, the Superior Court overturned the board’s decisions on the grounds that the lots had merged into one lot for zoning purposes.  Gallo appealed.

                              

The Massachusetts Appeals Court noted that for the Dwyers to have standing, they must show that the zoning relief granted adversely affected them directly and that their injury is related to a cognizable interest protected by the applicable zoning law.  The Court noted that the Dwyers described the close proximity of the lot to their rear sunroom and the loss of privacy that has already resulted from the removal of trees in anticipation of construction as well as a dramatically altered view of wooded trees. The Court found that “…crowding of an abutter’s residential property by violation of the density provisions of the zoning by-law will generally constitute harm sufficiently perceptible and personal to qualify the abutter as aggrieved as thereby confer standing to maintain a zoning appeal.”  Although Gallo claimed that the value of the Dwyer’s property would increase as a result of the proposed construction, the Court said that economic considerations are not determinative, but that density concerns related directly to the zoning scheme are.  

 

With respect to the zoning relief granted by the board, the Appeals Court agreed with the trial court that the two lots had merged for purposes of zoning. The court reiterated the rule in Massachusetts that “[A]djacent lots in common ownership will normally be treated as a single lot for zoning purposes so as to minimize nonconformities.” The Court concluded that the two lots merged many years ago and cannot now support two residential homes.  

 

Dwyer v. Gallo, 2008 WL 5094042 (Mass. App. Ct. 12/5/2008).

 

The opinion can be accessed at: http://www.courthousenews.com/AppellateOpinions/07P1242.doc


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