140 Hillcrest Appeal notes 2013-12-31
My decision to deny a building permit for a single family dwelling at 140 Hillcrest Drive in Florence is
based on a cautious interpretation of the City of Northampton Ordinance Chapter 350 (Zoning), the
Massachusetts Zoning Statute GL Chapter 40A and the common law doctrine of merger. I was
particularly informed by Zoning 350-2.1 definition of lot, Zoning 350-9.3 (C) (2) preexisting
nonconforming lots, GL 40A §6 paragraph 4, Mass Appeals Court 236 Preston v. Hull, 47 Mass Appeals
Court Asack v. Westwood, the Stewart Title Guaranty Company’s commentary on Preston v. Hull, Mark
Bobrowski’s “Handbook of Massachusetts Land Use and Planning Law” and, Massachusetts Department
of Housing and Community Development “Grandfathered Lots & Plan Protections”, November 30, 2009.
Ask to overturn
Notice of Appeal, Page 1, last paragraph:
“The 140 Hillcrest property had been owned by the same party that owned the allegedly adjoining 44
Kimball St. Florence, Massachusetts (44 Kimball) property”
The 140 Hillcrest Dr. property most assuredly adjoins the 44 Kimball St. property, sharing the entire
current rear property line, ~120 feet.
Notice of Appeal, page 3, grounds #2:
“An additional legal ground for this appeal is that there was no merger because these two properties are
not adjoining to each other. There is a proposed Street on the 1946 subdivision plan for the 44 Kimball
property (attached hereto as Exhibit C, lots 31, 32 and 33) and that way separates 44 Kimball from 140
Hillcrest”
The proposed street shown on the subdivision of land for the Kimball St. property was abandoned and
conveyed along with the Kimball St. property by deed in 1952.
Notice of Appeal, page 2, grounds #1:
“The Building Commissioner misconstrued the so-called "merger" doctrine”
I do not believe that I have misconstrued merger doctrine. As stated in the 1st paragraph of page 3 of the
appeal, “the term ‘merger’ simply means that a nonconforming lot is denied grandfathered rights
because the owner also owns adjoining land”. The Kimball St lot was nonconforming, and has been
since Northampton adopted the modern zoning ordinance in 1975. The Hillcrest lot provided sufficient
frontage to make the Kimball St. lot conforming. The lot being denied grandfathered status is the
Kimball St lot, not the Hillcrest Dr lot.
The City of Northampton Ordinance, Chapter 350 (“Zoning”), §2.1, Definitions:
“LOT
A parcel of land held in fee simple ownership designated on a plan or deed filed with the Hampshire
County Registry of Deeds or Land Court; however, contiguous lots in common ownership may not be
divided except in conformance with this chapter. Two or more contiguous lots in common ownership
may be treated as one lot for the purposes of this chapter; provided that the combined lots are used as
a single lot would customarily be used….”
Zoning §9.3 (C) (2):
“C. A preexisting nonconforming lot may be changed, extended or altered:
(2) As-of-right whenever a group of adjoining lots in common ownership is separated or the ownership
of one or more lots changed, if each of the lots will conform to all provisions of this chapter, or if the lots
are residential lots and each lot contained a principal residential structure at the time the adjoining lots
came under common ownership and no changes were made to the structures or lots during the time in
which the lots were commonly owned, in a way that increased the nonconforming nature of these lots”
Notice of Appeal, page