Agenda - Planning Commission - 12/03/2009

Home

September 25, 20091 Volume 31 No. 18 Zoning Bulletin corne into common ownership, they are normally merged and treated as a single lot for zoning purposes. Azzam maintained that adjacent nonconforming lots that retained their separate. identities did not merge. The court found it had not been provided with any authority (i.e., decisions from other courts) that would support such a rule. The court explained that the effects of the cornmon-law merger doctrine could only be overridden by municipal legislation. A city or- dinance could allow adjacent nonconforming lots that corne into com~ mon ownership to be treated as separate lots for zoning purposes. Azzam had argued just that-that a city ordinance overrode the ef- fects of the cornmon-law merger doctrine. Azzam pointed to the ordi- nance, which defined a "[l]ot" as "[a] parcel of land in identical own- ership throughout, bounded by other lots or by streets, which is des- ignated by its owner to be used, developed or built upon as a unit." Azzam argued that when the city issued his building permits, the two Parcels had never been designated by their owneno be "used, devel- oped or built upon as a unit." Consequently, 'he argued, the Parcels shoulfi not be treated as a single lot for zoning purposes. In response to Azzam's argument, the city contended that clause in the ordinance did not operate in this situation. It said it applied when institutional property owners wanted to designate certain portions of contiguous property held in cornmon ownership as separate lots for zorung purposes. The court found that the city failed to explain what the disputed clause meant or what procedure was required for a "designation" of a "parcel of land in identical ownership throughout" as a separate lot. Since the court "owed deference to the [B]oard's reasonable construc- . tion of its' own oid,inance," it concluded it was best to remand the . matter to the Board so that the Board could construe its ordinance in the first instance. See also: Carabetta v. Board of Appeals of Truro, 73 Mass. App. Ct. 266, 897 N.E.2d 607 (2008). Case Note: Other, related court decisions had concluded "that an owner of merged lots may not artificially divide them" so as to achieve an exemption from the cornmon-law me~ger doctrine. Case Note: Azzarn had also applied to the Board for a variance to legalize the two dwelling units on Parcel 2. The Board issued the variance, but neighbors appealed that issuance. Eventually Azzarn's enforcement appeal and the variance appeal were consolidated in 8 @ 2009 Thomson Reuters 78 /~ l.F .() .. j ../ ,-) I' II II Ii Ii I i I I I I l I I I