Posted by: Patricia Salkin | February 18, 2020

MA Appeals Court Finds Two Commonly-Owned Lots Merged for Zoning Purposes Upon the Elimination of the Bylaw’s Protection Against Merger

This post was authored by Matthew Loeser, Esq.
In 2000, Plaintiff acquired a lot located at 8 Yale Street in Billerica from Joseph M. DeMinico and Mary DeMinico. The lot was 5,000 square feet in area, and was first rendered nonconforming by an increase in minimum lot size to 7,500 square feet by amendment to the town zoning bylaw in 1945. The DeMinicos owned the lot in common with an adjacent property, 10 Yale Street, from 1972 to 1992. Under G. L. c. 40A, § 6, the two lots would have merged for zoning purposes during that period of common ownership if not for a provision of the Billerica zoning bylaw granting more generous grandfather protection. In 1992, the DeMinicos conveyed 10 Yale Street to Joseph and Mary as trustees of the Joseph M. DeMinico Revocable Trust and the Mary E. DeMinico Revocable Trust, as tenants in common. Both trusts were revocable inter-vivos trusts in which Joseph and Mary, respectively, retained a power of revocation and served as sole trustees. In 1999 Billerica amended its zoning bylaw to eliminate the more generous protection furnished by the anti-merger provision contained in G. L. c. 40A, § 6. The Board concluded that the two lots merged for zoning purposes upon the elimination of the bylaw’s protection against merger.
The court found that the DeMinicos as sole trustees, settlors, and life beneficiaries of their respective trusts, with retained power to revoke the trusts entirely, held complete control over both adjacent properties. Since the DeMinicos owned 8 Yale Street and their revocable trusts held 10 Yale Street, they had the ability to “use the adjoining land to avoid or diminish the nonconformity”. The judgement of the board was therefore affirmed.
Murphy v Board of Appeals of Billerica, 2020 WL 772560 (MA App. 2/18/2020)

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