Opinion
No. 13–P–19.
2013-12-23
Robert G. RICE v. Thomas E. POWERS, trustee.
By the Court (GRASSO, BERRY & COHEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Thomas E. Powers, trustee, appeals from a Land Court judgment, entered on summary judgment, in favor of the plaintiff, Robert G. Rice. The judge concluded that two abutting lots (5A and 6A) were in “common ownership” in 1971 during the ownership of Powers's predecessor in title (the Bozemans), such that the doctrine of merger
applied and Lot 5A (the Locus) lost its status as a preexisting nonconforming lot under applicable zoning laws. See G.L. c. 40A, § 6. We discern no error and affirm.
Under the merger doctrine, “contiguous substandard lots under common ownership may lose their separate identity and be treated as a single parcel for purposes of zoning area and frontage requirements and subdivision restrictions.” 3 Ziegler, Rathkopf's Zoning and Planning § 49:13, at 49–20–49–21 (2013).
The thrust of Powers's argument is that the judge erred in concluding that the Bozemans' ownership of the two adjacent nonconforming lots in different ownership capacities (as tenants by the entirety and as trustees of the A & B Realty Trust) constituted sufficient “control” for purposes of zoning merger. We disagree. This case is controlled in all material respects by Planning Bd. of Norwell v. Serena, 27 Mass.App.Ct. 689, 690–691 (1989), S. C., 406 Mass. 1008 (1990), which reiterated that a landowner will not be permitted to maintain a dimensional nonconformity on a parcel of land that he holds in common ownership with an adjacent parcel if he can use the adjacent parcel to avoid or diminish the nonconformity. The relevant inquiry with respect to “common ownership” for purposes of G.L. c. 40A, § 6, is “not the form of ownership, but control: did the landowner have it ... within his legal control, to use the adjoining land so as to avoid or reduce the nonconformity?” Id. at 691. While it is true that the Bozemans did not possess an equitable interest in the A & B Realty Trust, we agree with the judge's determination that their sweeping powers over the trust res, which included “every possible power and right ... which an individual can have over his own property,” including to “sell and convey the whole or any portion [of the Locus],” and “to alter, amend, or revoke the trust” was more than sufficient to allow them to “reduce the dimensional nonconformity of either lot viewed in isolation.” Serena, supra.
Because the judge correctly concluded that merger arose under the Bozemans' ownership, like the judge, we need not address whether merger also may have occurred by virtue of the subsequent conveyances to Powers.
We also reject Powers's claim that if merger arose for zoning purposes, it should not be applied retroactively to acts that occurred in 1971. Simply put, when merger occurred in 1971, the merger doctrine was already firmly in place. See Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 (1963). To the extent that Powers's argument raises any issues of fairness, viz., that the Bozemans may have reasonably believed that the properties would not merge based on the “grandfathering” provision of G.L. c. 40A, § 6, this court has long held that two adjoining lots in common ownership are merged for zoning purposes at the time they fall under common ownership, even if they were separately owned at the time of the zoning change. Preston v. Board of Appeals of Hull, 51 Mass.App.Ct. 236, 241–243 (2001).
Judgment affirmed.
Order on motion for reconsideration affirmed.