Excerpt from Truro caseFinally, the judge pointed to the inequity in preventing the Carabettas, who engaged in no zoning misbehavior, from building on a lot that complies with all of the zoning requirements
while affording the O'Briens, who purchased an illegally nonconforming lot, permanent protection from enforcement of the zoning by-law. 10 Our review of the record reveals that we have
applied the general rule against recreating old lots that resurrect a nonconformity even to subsequent owners. See Smigliani v. Board of Appeals of Saugus, 348 Mass. 794, 205 N.E.2d
227 (1965); Giovannucci v. Board of Appeals of Plainville, 4 Mass. App. Ct. 239, 344 N.E.2d 913 (1976); Raia v. Board of Appeals of N. Reading, 4 Mass. App. Ct. 318, 322, 347 N.E.2d
694 (1976); [***11] Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139, 765 N.E.2d 768 (2002); Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726, 735, 864
N.E.2d 586 (2007). In each of those cases, however, the subsequent owner purchased a lot that did not comply with current zoning requirements or participated in the creation of an abutting [**612]
lot that did not comply with zoning requirements and most were seeking zoning relief. Here, the Carabettas purchased a lot depicted on an approved [*272] subdivision plan that complied
with all current zoning requirements and required no zoning relief, and the record reveals nothing that would have put them on notice that their rear property line abutted a nonconforming
lot that was once held in common ownership with the lot they purchased. 11 The town points to no case where a similarly situated plaintiff was denied a building permit. In these circumstances,
it very well may be that the Carabettas should not be barred from constructing on their fully conforming lot.” Carabetta v. ZBA Truro, 73 Mass.App.Ct. 266, 272 (2008)
Once again, we are asked to address the longstanding rule that considers adjoining undersized lots held in common ownership as one lot for zoning purposes, in the context of a local
zoning ordinance that has been interpreted to provide protection against such merger. [emphasis added] Mauri v. ZBA of Newton, 83 Mass. App. Ct. 336, 343 (2012) [emphasis added]
"A basic purpose of the zoning laws is 'to foster the creation of conforming lots.'" Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 736 (1999), quoting from Murphy v.
Kotlik, 34 Mass. App. Ct. 410, 414 n.7 (1993). Thus, when adjacent undersized lots are held in common ownership, they "will normally be treated as a single lot for zoning purposes so
as to minimize nonconformities. Carabetta at 268.” Mauri at 343. [emphasis added]