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140 Hillcrest Zoning Appeal 2013-12-20GREEN MILES LIPTON, LLP ATTORNEYS AT LAW 77 PLEASANT STREET PO BOX 210 NORTHAMPTON, MA 01061-0210 (413) 586-8218 FAX (413) 584-6278 December 20, 2013 Re: Building Permit denial 140 Hillcrest Drive, Florence MA NOTICE ALL OF APPEAL JOHN J. GREEN, JR. HARRY L. MILES ROGER P. LIPTON JOHN M. MCLAUGHLIN" MICHAEL PILL "ADMITTED ALSO IN CT SUSAN MILES JOANNE M. KUZMESKI-JACKSON BRIAN L. BLACKBURN (DEC.) I represent Ms. Linda F. Matson and Robert L. Gould (collectively "my clients") with reference to the Northampton Building Commissioner's denial of a building pennit for a single-family home for my clients' lot at 140 Hillcrest Drive, Florence Massachusetts ("140 Hillcrest") (Denial attached as Exhibit A). My clients' builder applied for the pennit on their behalf. Despite the fact that140 Hillcrest is a lot that confonns with each and every current provision of the Northampton zoning bylaws, the Building Commissioner, denied the pennit, stating "It is my determination that when the two lots came into common ownership, they merged to create a conforming lot. Constructing a dwelling on the Hillcrest Drive lot would make the 44 Kimball Street lot again non-confonning, a violation of the City of Northampton Zoning Ordinance, section 350-4.1 (B)". In an earlier communication, the Building Commissioner cited Preston v. Board of Appeals of Hull 51 Mass.App.Ct. 236, 744 N.E.2d 1126 (Mass.App.Ct., 2001). In essence, it appears that the Building Commissioner is claiming: 1. The 140 Hillcrest property had been owned by the same party that owned the allegedly adjoining 44 Kimball St. Florence, Massachusetts (44 Kimball) property; Telephone (413) 586-8218 Facsimile (413) 584-6278 2. The 44 Kimball property is a non-conforming lot with 20 foot frontage on Kimball Street; 3. The two properties had merged into one lot and the 44 Kimball property was then utilizing the 140 Hillcrest property frontage; and 4. That to grant of a building permit for 140 Hillcrest would make the 44 Kimball property more non-conforming in violation of the Northampton bylaw which bars taking actions which would make a lot more non-conforming. I ask this board to overrule the Building Commissioner based upon grounds including but not limited to the two set forth below and to grant the building permit (as applied for) for the 140 Hillcrest property. 1. The Building Commissioner misconstrued the so-called "merger" doctrine. "Merger" is a shorthand legal term utilized when a permit granting authority is reviewing a claim of grandfathered status for a non-conforming lot. The term "merger" is used where: a. An applicant claims that he is entitled to a building permit for a non-conforming unimproved lot because the lot is grand fathered pursuant to the fourth paragraph of M.O.L. 40A § 6; and b. The permit authority denies the grandfathered status of the non-conforming lot because the applicant or his predecessor in interest owned other land adjoining the non-contorming lot. The two subject lots in this case have always been used as separate properties. While both the courts and municipal authorities have utilized the term "merger," use of the term is inherently confusing. No Massachusetts statute requires combining a non-conforming lot with other adjoining land owned by the same person. No Northampton zoning ordinance requires that two lots be combined into one where those two lots have not already been used as a single lot would customarily be used. Telephone (413) 586-8218 Facsimile (413) 584-6278 Therefore, there has been no actual merger where these two lots would have been melded into one single lot. The tenn "merger" simply means that a non-conforming lot is denied grandfathered rights because the owner also owns adjoining land. Most importantly the "merger" doctrine should never be utilized to deny a building permit for the perfectly good conforming lot. A confonning lot does not need to rely upon any grandfathered rights. A conforming lot cannot be denied grandfathered status through the "merger" doctrine because it does not need grandfathered rights; it is already conforming. The 140 Hillcrest property is a perfectly good conforming lot (See subdivision plan that is attached hereto as Exhibit B, lot 85). It does not need any grandfathered rights and it cannot be denied a permit because of the "merger" doctrine. It is therefore irrelevant that the 140 Hillcrest property may have been adjoining the non- confonning lot at 44 Kimball property while owned by the same party. The 140 Hillcrest property and the 44 Kimball property never "merged" into one lot in the sense that they were combined into one entity. Therefore, by granting a building permit to the perfectly good confonning140 Hillcrest property the building inspector is not making the 44 Kimball property any less non-conforming. The Kimball property is and always has been separate from the Hillcrest property and any permit pertaining to Hillcrest property simply will not affect the Kimball property. 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. Also, note that the subdivision plan for the 140 Hillcrest property is a totally separate and distinct subdivision from the subdivision plan that created the lot for the 44 Kimball property. Telephone (413) 586-8218 Facsimile (413) 584-6278 FACTS 1. In August 1952, Richard and Priscilla Finck purchased. the 44 Kimball property with the lot having 20 feet of frontage on Kimball St. A single residential home was soon constructed. on the property; 2. In March 1977 Richard and Priscilla Finck purchased the 140 Hillcrest property which is located near the 44 Kimball property; 3. In August of 1993, by two separate deeds, Richard and Priscilla Finck conveyed the 140 Hillcrest property and the 44 Kimball property to the Priscilla P. Finck Revocable Indenture of Trust; 4. The 140 Hillcrest lot and the 44 Kimball lot were never used. as a single lot would customarily be used. 5. On December 7,2012 the Priscilla P. Finck Revocable Indenture of Trust sold the 44 Kimball property to Brooke E. Hauser and Addison D. MacDonald; and 6. On December 7, 2012 the Priscilla P. Finck Revocable Indenture of Trust sold 140 Hillcrest to my clients. 7. My clients' builder made an application for a building permit for 140 Hillcrest and it was denied by document dated November 21, 2013. DISCUSSION Northampton does not appear to have a bylaw which specifically and explicitly merges two adjacent properties owned by one party into a single lot, at least where the two lots have never been used as a single lot would customarily used. Apparently, the Building Commissioner is claiming that the 140 Hillcrest and 44 Kimball properties merged into one lot based upon the authority of Massachusetts case law, specifically, Preston v. Board of Appeals of Hull 51 Mass.App.Ct. 236,744 N.E.2d 1126 Telephone (413) 586-8218 Facsimile (413) 584-6278 (Mass.App.Ct.,200 1). He then cites to a provision which bars an individual from taking actions which would make hls/her own lot more non-conforming. Yet, my clients emphatically contend that these two lots were never actually "merged" into one lot and never used as one lot. These two lots were not given one postal address and the building lot 140 Hillcrest was not taxed as useless back land for,.-be 44 Kimball property. The Kimball property never used the Hillcrest property. There is and never has been any driveway across the Hillcrest property to the Kimball property_ Additionally, all of utilities for the Kimball property are located on that property. The Hillcrest property has simply a totally unimproved totally conforming lot that is located near the developed Kimball property. Therefore, for all intents and purposes these two lots have always been two separate and distinct lots that were never truly joine.d into a single lot. The confusion exists because the tenn "Merger" has been used to refer to a legal theory by which non-conforming undeveloped lots are denied grandfathered status pursuant to the fourth paragraph of M.G.L. 40A § 6. That paragraph provides: Any increase in area, frontage. width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, confonned to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. Any increase in area, frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and seventy-six, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownerShip. The provisions of this paragraph shall not be Telephone (413) 586-8218 Facsimile (413) 584-6278 construed to prohibit a lot being built upon, if at the time of the building, building upon such lot is not prohibited by the zoning ordinances or by-laws in effect in a city or town. (emphasis added) TIlls paragraph of the statute sets forth the grandfathered rights for prior non.;.confonning undeveloped building lots. It sets up an important exception to grandfathered rights for the nonconforming lots. The owner of a non-conforming undeveloped lot cannot claim grandfathered status where that same owner also owns adjoining land. Please take note that the statute does not state that the subject lots are "merged". The statute never even uses the word "merger". "Merger" is simply the tenn the courts have utilized when they deny a non-confonning lot grandfathered status because the non- confonning lot is or was owned by the same party who owns adjoining property at the pertinent time as set forth in the statute. Again, the "merger" doctrine has nothing to do with the situation where a party is seeking a permit for a perfectly good confonning lot which does not have to rely on statutory grandfathered rights set forth in the fourth paragraph ofM.G.L. 40A § 6. Indeed, I've been unable to fmd any case where a building permit was denied for a perfectly good conforming lot because the lot was adjacent to a non-confonning lot owned by the same person (the "merger" doctrine). The leading treatise on Massachusetts land use and zoning is written by Mark Bobrowski and it is entitled "Handbook of Massachusetts Land Use and Planning Law" (3rd ed.2011). In that treatise Mr. Bobrowski sets forth the leading appellate cases where applicants have been denied zoning relief based upon "merger" doctrine. Id at 163. In all these cases the applicants were seeking zoning relief or pennits for lots which had a non-conformity. The applicants were usually claiming that they had grandfathered rights to obtain the zoning relief for the subject lots even though the lots were non-conforming but the Courts would not allow the relief or pennits because the applicants or their predecessors in interest also had other land adjoining the non-confonning land; this is the application of the "merger" doctrine". See: Vetter v. Zoning Bd. of Appeal of Attleboro 330 Mass. 628, 116 N.E.2d 277 (Mass. 1953); Sorenti v. Board of Appeals of Wellesley 345 Mass. 348, 187 N.E.2d 499, 96 A.L.R.2d 1361 (Mass. 1963); Telepbone (413) 586-8218 Facsimile (413) 584-6278 Smigliani v. Board of Appeals of Saugus 348 Mass. 794, 205 N.E.2d 227 (Mass. 1965); Lindsay v. Board of Appeals of Milton 362 Mass. 126, 284 N.E.2d 595 (Mass. 1972); Giovannucci v. Board of Appeals of Plainville 4 Mass.App.Ct. 239, 344 N.E.2d 913(Mass.App. 1976); Raia v. Board of Appeals of North Reading 4 Mass.App.Ct. 318, 347 N.E.2d 694 (Mass.App. 1976); Girard v. Board of Appeals of Easton 14 Mass.App.Ct. 334,439 N.E.2d 308 (Mass.App.,1982); Planning Bd of Nantucket v. Board of Appeals of Nantucket 15 Mass.App.Ct. 733, 448 N.E.2d 778 (Mass.App.,1983); Wright v. Board of Appeals of Falmouth 24 Mass.App.Ct. 409, 509 N.E.2d 923 (Mass.App.Ct., 1987); Planning Bd. of Norwell v. Serena 27 Mass.App.Ct. 689, 542 N.E.2d 314 (Mass.App.Ct.,1989) and Preston v. Board of Appeals of Hull 51 Mass.App.Ct. 236, 744 N.E.2d 1126 (Mass.App.Ct.,2001) (The case relied upon by the Northampton Building Commissioner.). Accordingly, I contend that the "merger" doctrine has nothing to do with the140 Hillcrest property. The 140 Hillcrest property is a perfectly conforming lot for a single-family home. My clients need not claim any type of grandfathered rights which would be measured with reference to the "merger" doctrine. More importantly, the 140 Hillcrest property and the 44 Kimball property never actually merged (combined) into a single lot. By granting a building permit for the 140 Hillcrest property and Building Commissioner we would not be making 44 Kimball more non-conforming because the two lots were never one combined lot. It is also crucial to note that the 44 Kimball property is already fully developed; it is not a vacant undeveloped lot. As such the fourth paragraph of M.G.L. 40A § 6, with its exceptions pertaining to adjoining land owned by the same party (the "merger" doctrine) does not even apply with reference to the grandfathered rights for the 44 Kimball property. See Willard v. Board of Appeals of Orleans 25 Mass.App.Ct. 15, 514 N.E.2d 369 (Mass.App.Ct.,1987). In Willard case the appellate court said with reference to the fourth paragraph of M.G.L. 40A § 6, "There is nothing on the face of the fourth paragraph to suggest that it was intended to apply to anything but vacant land", Telepbone (413) 586-8218 Facsimile (413) 584-6278 Therefore, whatever grandfathered rights the fully developed 44 Kimball property has would be governed by other paragraphs and/or provisions or bylaws. The grandfathered rights of the 44 Kimball property has nothing to do with the 140 Hillcrest property. They are two entirely separate and distinct properties. The lots at 140 Hillcrest and 44 Kimball were never conveyed by the same deed. They have completely separate chains of title in the Hampshire County Registry of Deeds. A title examiner searcbing the title for one lot would not in the regular course discover that the other lot was in the same ownership. This case somewhat resembles the facts in Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266, 897 N.E.2d 607 (2008). There a house was built on a nonconforming grandfathered lot which at the time was not held in common with any adjoining land. In the present case, I do not yet know whether 44 Kimball was nonconforming when a house was built on it decades ago. In Carabetta, a conforming lot came into common ownership with the house lot. The court distinguished this situation from prior cases with these words (73 Mass. App. Ct. at 271-272): Here the Carabettas purchased a lot depicted on an approved 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. 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 confonning lot. In Carabetta, the court did not have to decide the above issue because the lot with the existing house was combined with additional land to make it conform to current zoning requirements. But the last sentence quoted above indicates if that had not occurred, a building permit should have been issued for the vacant conforming lot. An additional legal basis for this appeal is that the ''merger'' doctrine does not apply because the two subject properties are not adjoining. They are on opposite sides of a proposed subdivision street, shown on the subdivision plan for the 44 Kimball property. Where even a proposed street separates two Telephone (413) 586-8218 Fa£simile (413) 584~6278 pCC;lperties in common ownership" they are not considered to be "adjoining" for the purposes of M.G.L. 40A § 6. See Jensen v. Waine 2007 WL 969083 at page 8 (Mass.Land Ct. 2007). For zoning purposes, a lot ends at its front line, which is the sideline of a proposed or constructed subdivision street abutting that lot. One cannot use land within the street sidelines to satisfY zoning area requirements. Yet here the Northampton Building Inspector is ignoring the street and treating the two lots as if they were abutting. Based upon all of the above facts and law, I respectfully request that this Board overrule the Building Commissioner and issue a building permit (as applied for) for the 140 Hillcrest property (a certified list the abutters is attached hereto as EXhibit D). Jo clldo. een Miles Lipton, LLP Telephone (413) 586-8218 Facsimile (413) S84-6278