Posted by: Patricia Salkin | October 21, 2013

Mass. App. Court Finds Previously Erroneous Variance Determination Did Not Protect Landowner From Subsequent Variance Denial

Nicolas Timperio, as trustee of the Newton Street II Trust, sought a variance and special permit for three lots he obtained in a single deed in December 1994–lots 7, 8, and 9. Each of the lots, created back in 1925, varied in size and frontage, but collectively the three lots contained 48,427 square feet and 285.6 feet of frontage. When the lots were created, lot 7 was sold separately from the others, but lots 8 and 9 have never been in separate ownership from one another, and are merged for zoning purposes. In 1984, the three lots returned to common ownership, and all three were conveyed to Nicolas and Robin Timperio in a single deed in 1994.
The Town of Weston adopted its zoning laws in 1928, when minimum lot size requirements were first imposed. Several amendments later, the requirements in effect at the time of the Timperios variance application were those imposed in 1997, which mandated a minimum street frontage of 250 feet, a 60,000 square foot minimum lot size, and a 50-foot lot width requirement at the street setback line.

On the Timperios’ property was a single-family home, located on Lot 7; lots 8 and 9 remained unimproved. In 1996, the Timperios obtained a variance from some of the Town’s setback requirements for an addition to their home; a variance which applied to lots 7, 8, and 9 as a single parcel. At that time, the Timperios had wanted the variance solely for Lot 7, but decided not to appeal, to record the variance as approved by the Town, or to seek a building permit pursuant to the variance, allowing that opportunity to lapse. Later, in 1997, the Timperios reapplied for a specific finding that Lot 7 had “retained its separate status” from Lots 8 and 9– a determination that the Town ultimately granted, noting that Lot 7 had been “grandfathered” as a nonconforming, “single, protected lot for zoning purposes.” Neither the Town nor the Timperios neighbors appealed this decision.

In 2011, Nicolas Timperio had obtained the property as trustee, and sought to construct a new home on Lots 8 and 9, for which he sought a special permit, a variance from the Town’s sideline and centerline setback requirements, and another determination that lots 8 and 9 retain their status as a preexisting nonconforming lot. The town denied Timperio’s applications on the grounds that Lots 8 and 9 had merged with Lot 7 for zoning purposes when they came under unity of ownership, despite the Town’s previous 1997 ruling, and because, even if considered separately from Lot 7, the lots did not meet variance requirements and issuing a variance would be detrimental to the community. Timperio appealed the decision.

Before the Mass. Land Court, Timperio moved for summary judgment on the basis that the Town’s 1997 decision precluded its 2011 variance denial, and on the merits of his variance applications. The Land Court granted summary judgment in the Town’s favor, finding that a lack of formalities in the 1997 decision, and the fact that the decision concerned the lots’ qualification for a variance, not their buildable status. Timperio here appeals.

On appeal, the Court held that Lots 7, 8, and 9 were merged under the common-law merger doctrine, despite Timperio’s insistence that the 1997 Town determination that Lot 7 had retained it’s separate status as a preexisting nonconforming lot. The court felt that following the Town’s 1997 zoning amendments, made after the 1997 variance decision, the Town acted properly by considering the three lots merged, finding nothing in the 1997 variance that purported to give Lot 7 perpetual status as a separate lot, given that it was under common ownership, and nothing that should have prevented lot 7 from merging with lots 8 and 9. The court pointed out that the Town’s 1997 interpretation of the merger doctrine was erroneous, and held that there was nothing in the law or in statute which required the Town to continue to uphold that error.
For all of those reasons, the Appeals Court affirmed the Land Court’s decision favoring the Town and denying Timperio’s assertion of rights to a variance.

Timperio v. Zoning Board of Appeals of Weston, 993 N.E.2d 1211 (Mass. Apps. Ct. 8/16/13)

The opinion can be accessed at:

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