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;
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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.
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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.
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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
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(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
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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);
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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",
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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
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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
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