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Zoning Bulletin May 10, 2010 1 Volume 4 j No. 9 MASSACHUSETTS (04/02/10)—This case addressed the following issue: "whether purchasing a nonconforming lot with actual knowl- edge of its nonconformity is, standing alone, sufficient basis upon which to deny zoning relief as a self-created hardship." The Background/Facts: In 2005, Paul Lamb and David Lamb (the "Lambs"), as cotrustees of D & P Realty Trust, became owners of two adjacent lots in the city. The lots were in a subdivision that was subject to rural residential zoning. The rural residential zone required "build- able lots to contain 60,000 square feet, of which 43,560 must be con- tiguous dry area." Together, the Lambs' lots contained only approxi- mately 23,800 square feet of contiguous dry area. Paul Lamb petitioned the town's zoning board of appeals (the "ZBA") for a variance from the contiguous dry land requirement. The ZBA denied the variance. The denial was based on the ZBA's conclu- sion that Paul had "created his own hardship by purchasing the two unbuildable lots after the subdivision had expired and then expecting zoning relief." The Lambs appealed to the Superior Court. The judge affirmed the denial of the variance, concluding that "by purchasing the premises with knowledge the lots were nonconforming, Paul created his own hardship and thus the [Lambs] were not entitled to a variance." .� The Lambs appealed. The Court's Decision: Judgment of the Superior Court reversed; case remanded. The Appeals Court of Massachusetts held that Paul's purchase of the lots with knowledge that they were nonconforming did not, by it- self, preclude zoning relief. . The court explained that under Massachusetts General Laws ("G.L.") c. 40A, S 10, the city could grant the Lambs' requested vari- ance only if "a literal enforcement of the [zoning] provisions... would involve substantial' hardship ... to the [Lambs]." The law was clear that a property owner could not obtain a variance by creating his own hardship—such as by some overt act that "transforms what was once a conforming parcel into a nonconforming one." However, the court had not yet addressed the issue now before it: "whether purchasing a non -conforming lot with actual knowledge of its non -conformity is, standing alone, sufficient basis upon which to deny zoning relief as a self-created hardship." Following the position of the majority of other jurisdictions (i.e.; courts in other states), the court held that: "the purchase of a noncon- forming property, even where the purchase occurs with actual knowl- edge of the nonconformity, does not by itself preclude zoning relief." The rationale behind this holding, explained the court, .is that "a pur- chaser does not acquire less right to a variance than a seller." In other words, to hold otherwise would result in only existing owners of non- © 2010 Thomson Reuters 51