Posted by: Patricia Salkin | December 7, 2015

MA Land Court Finds Subject Property was Merged for Zoning Purposes with the Adjoining Parcel and was not Properly Considered by the Board for a Variance

Defendant Joseph Botelho, as trustee of the Botelho Family Real Estate Trust, purchased “two abutting vacant lots” by a deed dated August 3, 2012. The property was described on the deed by a single metes and bounds description, as containing 29,270 square feet more or less, and being Lots numbered 10 and 12, as shown on a plan entitled “Village View Heights”, prepared for John S. Hopp and Alice A. Hopp (the “Hopp Plan”). On May 20, 2013, the Acushnet Town Meeting adopted a change to the Bylaw and the Zoning Map, placing the Botelho property in a newly down-zoned Residential Village, or “RV” zoning district. Viewed as two lots as shown on the 1964 Hopp plan, Lot 12 would be a compliant, buildable lot under the new RV zoning requirements, but Lot 10 would not. In an attempt to attain a building permit, Botelho submitted an Approval Not Required (“ANR”) plan dividing the Botelho property into two lots, designated as Lots 25–U–1 and 25–U–2, with Lot 25–U–1 corresponding essentially to the former Lot 10 and Lot 25–U–2 corresponding essentially to former Lot 12. On October 7, 2013, Botelho applied for, and was granted, a variance from the lot width provision of the Bylaw so that he could obtain a building permit for Lot 25–U–1. In this case, the Board of Selectmen and the building inspector of the Town of Acushnet, dissatisfied with the granting of a dimensional variance by the Town of Acushnet Zoning Board of Appeals appealed pursuant to G.L. c. 40A, § 17, to have the variance annulled.

The court first considered whether the lot merger doctrine barred consideration of the property for the granting of a variance. The record indicated that two lots together were more than large enough to constitute a single conforming building lot, but not quite large enough to constitute two conforming lots under the newly adopted RV district dimensional requirements. Under the common law merger doctrine, when adjacent nonconforming lots come into common ownership, they are normally merged and treated as a single lot for zoning purposes. Moreover, while Massachusetts courts have considered, adopting a rule that would allow commonly owned lots to be exempt from the merger doctrine if they “in some sense retain their separate identities”, these courts have declined to do so. The two lots in question lost their “separate identities” because they were treated as a single lot for conveyancing purposes and conveyed on a single deed with a single metes and bounds description describing both parcels together as one 29,270 square foot lot. Accordingly, the court concluded that Lots 25–U–1 and 25–U–2 were merged for zoning purposes because they were in common ownership at all relevant times. Judgment was therefore entered annulling the Board’s granting of a variance.

Town of Acushnet v Marshall, 2015 WL 7123795 (MA Land Ct. 11/13/2015)

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