Creating Thriving Communities Through Land Use And Real Estate Law

Confused About Standing and Merger in Zoning Appeals?

Anyone looking for a refresher course on the topics of standing and merger with regard to zoning appeals is in luck.  Yesterday, the Land Court issued its decision in Pitsick v. Lipsitt, 13 MISC 477862 (May 14, 2015), in which Judge Sands provided a comprehensive overview of both issues.

The case concerned two building permits issued by the Newton ISD for two lots owned by Plaintiff.  The Newton ISD had initially issued the Building Permits, but, after objections by abutters as to the issuance of the Building Permits and the construction which had taken place pursuant to them, the Zoning Board ultimately decided to revoke them.  Naturally, the Plaintiff objected to this.

With a somewhat unusual procedural posture and with prior relevant decisions informing its analysis, the Land Court considered the standing of the abutters which determines their ability to sustain an appeal.  Specifically, the Court analyzed the different standing requirements that apply to a party’s request for enforcement under G.L. c. 40A, § 7, and a party’s appeal of a denial of that request under G.L. c. 40A, § 8, and the relevance to each of the “aggrieved” status of a party.  As the Court stated, any party may request enforcement of the zoning ordinance, without having to demonstrate that they are aggrieved; however to appeal the enforcement decision to the zoning board, a party must demonstrate that they are aggrieved.  Abutters are presumed to be aggrieved, but the presumption is rebuttable.  Here, the Plaintiff successfully rebutted the presumption, and because a number of the abutters could not demonstrate that the proposed development would impact their properties, the Court found they lacked standing.

The rest of the abutters did prove their standing, and the Court proceeded to address the determinative issues: whether the Plaintiff’s lots had merged, and whether any of Plaintiff’s lots had grandfathering protection from increased lot size and frontage requirements of the Town’s zoning ordinance.

Recognizing that G. L. c. 40A, § 6 provides limited protection to certain residential lots from subsequently-enacted zoning regulations that would otherwise have the effect of rendering what was previously a conforming, buildable lot into a non-conforming, non-buildable lot, the Court also emphasized that c. 40A, § 6 is not intended to replace or abrogate the common law doctrine of merger.  Here, two of the Plaintiff’s lots had merged, rendering the revocation of the building permit appropriate in the absence of a variance.  However, the Court declined to order the Zoning Board to issue a tear-down order, because not every zoning violation requires removal of the offending structure, stating “case law recognizes that tear down orders do not necessarily follow every determination of a zoning violation, and that a court may consider equitable factors and the potential availability of money damages as an appropriate alternative remedy.”

Another of Plaintiff’s lots had not merged with the other, and was subject to protection under c. 40A, § 6.  The Court therefore ordered the Zoning Board to reissue the building permit with regard to that lot.  As the Court noted, the “path forward for the parties is now somewhat uncertain,” as the Plaintiff is left with a substantially-completed structure on one of the lots which cannot be completed, as the building permit has been revoked.  The abutters are still unhappy because there is an illegal structure on the lot.  We anticipate further applications to the Town seeking to have the structure torn down, and likely a request from the Plaintiff for a variance to permit the structure to be completed.