140 Hillcrest Building Commissioner 2014-02-11TO: Zoning Board of Appeals
FROM: Louis Hasbrouck, Building Commissioner
RE: 140 Hillcrest Drive, Florence
February 11, 2014
Dear Board Members,
The Planning and Sustainability staff report accurately presents many of the factors that influenced my decision to deny a permit to build a single family house on the lot at 140 Hillcrest
Drive in Florence. I relied primarily on the City of Northampton Zoning Ordinance (Chapter 350 sections 2.1, 4.1, 4.2, 9.3 and 9.4). I also considered other court decisions in addition
to those in the staff report.
Current Land Court Associate Justice Robert B. Foster, writing for Mass Land Use Monitor in 2010, commented on the Supreme Judicial Court decision in Spooner v Brookline, 461 Mass. 692,
upholding the Land Court’s decision to uphold the Zoning Appeals Board’s determination that two lots had merged. Justice Foster stated that “....infectious invalidity... At its simplest,
this land use doctrine holds that an owner of an existing lot that is legally non-conforming with zoning (say, because it doesn't meet increased lot area requirements) who also owns
adjoining land cannot lawfully create a new, fully-conforming parcel without first "curing" the non-conformity by using some of the adjoining land. If there is not enough "extra" land
to cure the non-conformity, the new lot is deemed "infected" – and non-buildable – even if it ostensibly conforms with all current requirements...”
Seltzer v. Orleans, 24 Mass. App. Ct. 521, 1987, referring to a provision of Orleans’s zoning ordinance protecting the right to construct a single or two family dwelling on any lot regardless
of common ownership: “Provisions of this type are obviously intended to avoid the application of the general principle that adjacent lots in common ownership will normally be treated
as a single lot for zoning purposes so as to minimize nonconformities with the dimensional requirements of the zoning by-law or ordinance”
Vetter v. Attleboro, 330 Mass. 628, 1953; the merger doctrine does not apply only to vacant lots. “His lot was then composed of the two "lots" shown on the assessors' plan, contained
slightly more than 12,000 square feet and had one house upon it”. The court upheld the Board of Appeals determination that the lots had merged irrespective of the fact that one lot
had a house on it.
Heald v. Greenfield, 7 Mass. App. Ct. 286, 1979; the court held that the word lot “should mean contiguous lots held in common ownership” and further, “In the absence of specific zoning
code provisions defining a "lot" in terms of sources of title or assessors' plans, the Supreme Judicial Court has consistently held that adjoining parcels may and, indeed, in certain
instances, must be considered one lot for zoning purposes”
Hoffman v. Cambridge, 74 Mass. App. Ct 2009; “it is within the legislative power of the city to override the effects of the common-law merger doctrine and allow adjacent nonconforming
lots that come into common ownership to be treated as separate lots for zoning purposes”. Northampton has not done so.
Respectfully,
Louis Hasbrouck
City of Northampton Building Commissioner