Creating Thriving Communities Through Land Use And Real Estate Law

One Lot, Two Lot, Merged Lot, Undevelopable Lot

It used to be two lots, but now it’s one: in a recent the decision, Cain v. Bd. of Appeals of Wilmington, No. 15-P-575 (Mass. App. Ct. Mar. 25, 2016) (1:28 Decision), the Appeals Court has reiterated that, although a local zoning bylaw may provide greater protection to grandfathered lots than that provided by G.L. c. 40A, § 6, the local bylaw may also distinguish between vacant and developed lots such that the grandfather protection does not benefit a property owner.

In the Cain decision, the Appeals Court relied on Dial Away Co. v. Zoning Bd. of Appeals, 41 Mass. App. Ct. 165 (1996), in affirming the Land Court decision below.  The Court found that while the Wilmington Zoning Bylaw expressly overrode the common law doctrine of merger in the Zoning Act, the local grandfathering by-law applied only to vacant land, and not to land on which a structure already exists.  Unfortunately for the Plaintiff, owner of two adjacent lots, a predecessor had applied for and received a permit for construction of a garage on the lot that Plaintiff now wishes to construct a home on.  Because the more lenient grandfather status only applied to unimproved lots, the two improved lots had merged for purposes of zoning and the Plaintiff was not entitled to a building permit for the second lot.

This case serves as a reminder to purchasers and/or developers who own multiple abutting lots to research the title to determine whether the lots of merged for the purposes of zoning, such that each lot is no longer separately developable.