Posted by: Patricia Salkin | July 11, 2018

MA Appeals Court Holds that Parcel was Not Rendered Unbuildable Pursuant to the Doctrine of Merger

This post was authored by Matthew Loeser, Esq.

An undeveloped parcel of land in the town of Norfolk measured only 7,650 square feet, and therefore did not meet the minimum lot size requirement set forth in the town zoning bylaw. The relevant town officials concluded that the parcel did not enjoy “grandfathered” status, because it was held in common ownership with adjacent lots when the town first adopted a minimum lot size requirement in 1953, and thus the lots had to be treated as one under the doctrine of merger. The Land Court rejected that position, holding that the parcel was not rendered unbuildable based on its being held in common ownership with adjacent land in 1953. Nevertheless, the judge ruled that the parcel was rendered unbuildable under the doctrine of merger based the acquisition of the parcel in 2012, by the Kneer Family Revocable Trust. The parcel then was held by Kneer and Mead as co-trustees.

The record reflected that because Mead possessed broad authority to take actions with respect to trust assets without needing to seek Kneer’s prior approval, the judge ruled that this effectively gave her “legal control” of the parcel. As such, the judge found the parcel was held in common ownership with the adjacent property that Mead owned individually. On appeal, the court noted that this holding failed to account for the fact that Mead’s powers over the parcel necessarily were subject to her fiduciary obligations. Specifically, despite the breadth of the authority that Mead possessed as co-trustee, she still could not lawfully use the parcel to lessen the nonconformity of her own property with the minimum lot size requirement. Accordingly, Mead’s status as co-trustee of the trust that owned the parcel did not, by itself, render the two properties as being held in common ownership.

Next, while the judge found that Mead “in fact has exercised control over the … parcel,” and rejected Kneer’s claim that Mead was leading the effort to develop it “simply to help her mother,” it was uncontested that in seeking to develop the parcel, Kneer was the one in whose name the permits were sought. The court therefore held that the parcel was not rendered unbuildable pursuant to the doctrine of merger. However, since it was possible on this record that facts could be found that would support merger on other grounds, the court remanded the case for further proceedings.

Kneer v Zoning Board of Appeals of Norfolk, 2018 WL 337165 (MA App. 7/11/2018)


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