Posted by: Patricia Salkin | February 7, 2012

Massachusetts Land Court Finds Commonly Owned Adjacent Lots Separate Buildable Lots

The two lots at issue in this case—Lot 73 and Lot 112—fell under common ownership in 1921.  Between that date and 2002, the lots remained in common ownership.  During this time, a home was constructed on Lot 112.  In 1967, the city council passed an amendment to the zoning ordinance which resulted in both Lot 73 and Lot 112 becoming nonconforming lots.  The parcels were bought and sold numerous times before ultimately dividing between two owners in 2002.  Seeking a determination, three separate owners, at separate times, submitted Buildable Use Lot Request forms to the building department.  Each received the opinion that Lot 73 was not buildable because it had effectively merged with Lot 112.  Although no other owner pursued the matter, plaintiff in this case appealed.  After the zoning board of appeals (ZBA) upheld the decision by the building department, plaintiff appeals to the Massachusetts Land Court. 

The threshold issue the land court explores is whether the case is barred by res judicata from the prior applications and building department determinations.  The ZBA argues that the plaintiff is barred by the prior opinions of the building department and because those owners failed to appeal the decision, plaintiff is now barred from appeal.  The court finds that a res judicata argument can be sustained only where there is privity between the parties, the cause of action is identical, and there was a final judgment on the merits.  Applying this test, the court determines that there was privity between the prior owner and the plaintiffs and that the cause of action is identical.  Regarding the final factor, however, the court finds that the decision lacks the proper procedure to give a preclusive effect.  Thus, the court finds the plaintiff’s claim is not barred under res judicata.                 

Next, the court examines the actual issue of this case; whether the lots have merged or whether Lot 73 is a separate buildable lot.  To answer this question, the court looks directly at the city ordinance.  First, the court finds that the adjoining lot is not vacant and thus, Lot 73 has fulfilled the first listed requirement.  Next, the court finds it must determine whether Lot 73 was an existing lot at the time the ordinance went into effect.  The court recognizes “existing” is not defined in the statute and, thus, looks to the context to determine its meaning.  First, the court finds that the ordinance, as a whole, exemplifies a strong preference for protecting individual property rights.  Next, the court looks to the Massachusetts General Laws for guidance on the minimum protections provided by the state.  The court finds that the Massachusetts General Laws provides an exemption from any zoning change.  Thus, since the State General Laws should provide a minimum protection, the court finds that the city ordinance must also give a perpetual exemption.  Next, the court sees that the Massachusetts General Law follows up this exemption with a limitation.  Under the ordinance, however, the court finds no limitations.  Thus, the court finds that if Lot 73 was buildable when the ordinance came into effect, it is still protected as a buildable lot. 

The court finally examines the treatment of the land before the ordinance was passed and determines that Lot 73 was treated like a separate lot, different from Lot 112.  Thus, the court holds Lot 73 is buildable and grants summary judgment in favor of the plaintiff.  

Dalkouras v. Eonas, 2012 WL 124548 (Mass. Land Ct. 01/06/2012) 

The opinion can be accessed at:


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