Posted by: Patricia Salkin | February 27, 2017

MA Appeals Court Holds Nonconforming Use Was Not Extinguished by Common Ownership of Adjacent Lot

As pertinent to this case, Section 8.3.2(c) of the Cohasset zoning by-law specifies that a lot that does not meet the otherwise specified dimensional requirements of the by-law is nonetheless eligible for a building permit if, “Such lot, on or before the effective date of the requirements in question: R-C district in which the minimum lot size is 60,000 square feet.” The current minimum lot size resulted from an increase enacted by amendment to the by-law in 1985, at a time when the Shaws’ lot was held in common ownership with several parcels of adjacent land. The lot therefore met the requirements of the second portion of section 8.3.2(c) as applicable to lots in the R-C district. In this case, plaintiffs appealed from a judgment of the Land Court that affirmed the decision of the defendant zoning board of appeals of Cohasset that the board correctly interpreted the Cohasset zoning by-law to afford grandfather protection to a lot owned by the defendants John and Martha Shaw.

On appeal, plaintiffs contended that the board erroneously interpreted the by-law to afford grandfather protection to the lot by virtue of the common law doctrine of merger. Under the merger doctrine, a lot held in separate ownership at the time an increase in area loses its grandfather protection if it thereafter comes into common ownership with adjoining land. Here, however, the by-law provision specifically protected lots meeting specified criteria, despite being held in common ownership with adjacent land. Accordingly, the court found no cause to disturb the board’s reasonable interpretation of the by-law.

Koines v. Zoning Board of Appeals of Cohasset, 91 Mass. App. Ct. 903 (2/21/2017)

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