HomeMy WebLinkAboutLot Inquiry 1/16/02 r �
18
addition, there are some established facts that cut against
disregarding the difference in the nominal owners . For example,
the formation of the trust preceded the purchase of the parcel
by more than ten years, and there was no evidence that Mead' s
addition as cotrustee after her father died was done in
anticipation of the trust' s eventual purchase of the parcel.12
Moreover, it is uncontested that in seeking to develop the
parcel, Kneer was the one in whose name the petiuits were sought,
establishing that trust formalities were, at least to some
extent, observed.
In the end, we conclude that whether the board could
disregard the separate ownership here and treat the parcel and
Mead' s property as one cannot be resolved as a matter of law
based on the current findings . It is evident that the trial
by itself mean that she thereby should be deemed the current
owner of the property for zoning purposes.
12 The judge stated that he "consider [ed] neither . . .
Kneer' s testimony regarding her intent to maintain control over
the trust's property, nor the testimony of her attorney, . . .
who drafted the trust documents and provided de bene testimony
at trial about his and . . . Kneer' s intent with respect to the
trust' s provisions. " Nevertheless, the judge went on to state
that " [e] ven if [he] did consider that testimony, however, [he
did] not believe that . . . Kneer truly intended to have sole
control over the trust' s property. " He explained that " [i] f
that was her real intention, she would not have added . . . Mead
as a trustee, or she would at least have made sure that the
trust included explicit provisions limiting . . . Mead' s
authority. " However, as explained supra, the fact that the
trust documents gave Mead broad authority over the trust
property (on which third parties were entitled to rely) does not
mean that Mead thereby was free to use the property as her own.
19
judge saw little need to address head on whether Mead should be
treated as the real owner of the parcel, because he believed the
merger issue could and should be resolved on the face of the
trust documents . Where, as here, the judge made findings based
on an incorrect view of the law but still could be correct for a
different reason, "fairness requires a remand to allow the
parties and the judge to focus on [the key legal issue we have
identified] . " Julius Tofias & Co. v. John B. Stetson Co. , 19
Mass . App. Ct. 392, 398 (1985) .
Conclusion. In sum, we conclude that the parcel was not
rendered unbuildable pursuant to the doctrine of merger as a
result of the adoption of the zoning by-law in 1953 . We further
conclude that the judge erred in ruling -- based merely on the
breadth of Mead' s authority as cotrustee -- that merger occurred
when the trust purchased the parcel in 2012 . Nevertheless, it
is possible on this record that facts could be found that would
support merger on other grounds .13 Accordingly, we vacate the
judgment and remand the case for further proceedings consistent
with this opinion.
So ordered.
13 Nothing in this opinion should be read as expressing a
view on how that issue should be resolved.
_y TOWN OF YARMOUTH
' ''-"'''..�� BUILDING DEPARTMENT
\,t AN 1 00Z 1 Route 28, South Yarmouth, MA 02664 508-398-2231 ext.033 BUILDING DEPARTMENT
LOT INQUIRY FORM (ZONING PURPOSES ONLY)
Assessors' Map No. 9-3 Lot No. i 3 4 '2-Street Address / g- U
Endorsement Date of Subdivision Plan and Type(if applicable) / - 1 7 1-5 di
Total Land Area(sq.ft.) / //Y Frontage 90 .
Name of Current Owner)o,v 64 /3,.T2(Address ( 0 r'14 (3 q Telephone No.So k 7 ,0 Y 7.2.3 4,6.
Inquire's Name(if different from owner) S r9 m E Telephone No. '`
Inquire's Mailing Addressn ., n a r ,0 rc � , L- ) �f c 4�D L6> 3
Building Intent ��. a.... ((/�!-� , Moining Lot Numbers /3 5r '5'7 4 , /39. / , /3 g. . 1 3 1, /36
Signature of Applicant dq..,_,'F_/.cam Date of Inquiry /- / 6 - 8 2-
FOR OFFICE USE ONLY
Does not conform with M.G.L.Chapter 40A, Section 6,single lot exemption,or
Definitive Plan Exemption and/or the applicable zoning bylaw,as per information provided.
Reason
V
Conforms with M.G.L.Chapter 40A,Section 6,single lot exemption,and or Section
1043.4,Para. 5- of the zoning bylaw,as per information provided. Comments:
Protected pursuant to M.G.L.Chapter 40A,Section 6,Definitive Plan Exemption.
Application is incomplete. Comments:
Adequate road access must be present. Determination of arrJcs shall be made by the
tanning Board pursuant to M.G.L.Chapter 41 (if applicable.)
x/P
Must satisfy Title V requirements.(See Board of Health)
Must satisfy Conservation regulations,if applicable.
Old Kings Highway Regional Historic District Commission applicability.
Investigator's Signature 6 4-z1...L.4-2-...-- Date 1 / G -v 2
Rev.3/01
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Doc:975.128 07-28-2004 11:41
Ctf#a173865
BARNSTABLE LAND COURT REGISTRY
QUITCLAIM DEED
We, DONALD E. BATZER and MARY M. BATZER of 18 Tabor Road, West
-- Yarmouth, Massachusetts 02673,
for NOMINAL CONSIDERATION paid,
grant to DONALD E. BATZER, Individually, of 181 Tabor Road, West Yarmouth,
Massachusetts 02673,
with quitclaim covenants,
a parcel of land in West Yarmouth, Barnstable County, Massachusetts, more particularly
described as follows:
LOT 26
LAND COURT!LAN 17149-F(Sheet 1)
For title see Certificate of Title No. 153545.
Property Address; T4 Tabor Road- West Yarmouth. Massachusetts 02673.
The above-described parcel is conveyed together with a right as appurtenant to the above-
described lot to use for the purposes hereinafter set forth, in common with all others now or
hereafter entitled thereto, the parcel of land situated in West Yarmouth, Barnstable County,
Massachusetts,more particularly boundedand described as follows:
Beginning at the NORTHWESTERLY point of Lot 50, as shown on plan
hereinafter mentioned; thence running NORTHWESTERLY about 129
feet to the SOUTHWESTERLY corner of land now or formerly of Roland
C. March; thence turning and running SOUTHWESTERLY 317 feet by
land of Barbara A. wise to Lewis Bay; thence turning and running •
SOUTHEASTERLY by Lewis Bay about 110 feet to the
NOTHWESTERLY corner of Lot l,,as shown on said plan;thence turning
and running NORTHEASTERLY by Lot 1, 305 feet; thence
NORTHEASTERLY to the point of beginning.
The above-described parcel is shown on a plan entitled: "Subdivision of Land in West
Yarmouth, Mass. as laid out for Inez L. Hill" dated February, 18,, 1947, made by Bearse &
Kellogg, Civil Engineers, Centerville, Mass., duty recordedwith Barnstable County Registry
of Deeds in Plan Book 120,Page 89.
Together with a right-of-way for access to the above-described taipd over Springer Lane, as
shown on said plan.
ROGER V.O'DAY
ATTORNEY AT LAW
466 MAIN STREET
P.O.BOX 366
HARWICHPORT,MA 02646
w
The aforesaid unregistered parcel is to be used for bathing, beach and boating purposes and
for passing and repassing over and upon the same for parking, pleasure and recreational
uses.
EXECUTED as a sealed instrument this 1 day of JvL-Y ,2004.
DONALD E.BA ZER
ii(
MAR} .BAI'ZER
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF BARNSTABLE
On this a 3 n-L day of J Ui-Y ,2004, before me, the undersigned notary
public, personally appeared DONALD E. BATZER and MARY M. BATZER,proved to
me through satisfactory evidence of identification, which were pe-csoni-l(y knm,on ,
to be the persons whose names are signed on the preceding or attached document and
acknowted-ged-to me that they signed itvoluntarily for its stated purpose.
Notary Public(Seal)
UM A.$Q4#U,p
My Commission Expires:
BARNSTABLE COUNTY
REGISTRY OF DEEDS
A TRUE COPY,ATTEST
ROGER V.O'DAY SARI ABLE REGISTRY OF DEEDS
ATTORNEY AT LAW
466 MAIN STREET
PO.BOX 366
HARWICHPORT,MA 02646
(77
Iff Doc:975:127 07-28-2004 11:41
,gCtf*:173864
QUITCLAIM>;iIABLE LAND COURT REGISTRY
I, DONALD E. BATZER of 18 Tabor Road, West Yarmouth, Massachusetts
02673,
for NOMINAL CONSIDERATION paid,
grant to DONALD E. BATZER and MARY M. BATZER, husband and wife as tenants
by the entirety,both of 18Tabor Road,West Yarmouth,Massachusetts 02673,
with quitclaim covenants,
the land situated in Yarmouth (West), in the county of Barnstable and Commonwealth of
Massachusetts,bounded and described as follows:
LOT 25 •
LAND COURT PLAN 17149-F(Sheet 11
For title see Certificate of Title No. 161995.
Property Address: 18 Tabor Road West Yarmouth Massachusetts 02673.
EXECUTED as a sealed instrument ibis 43".- clay of Ni cn-Y ,2004.
DONALD E.BAT
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF BARNSTABLE
On this a 3 day of Ju L-Y , 20C 4,before me,the undersigned notary
i public, personally appeared DONALD E. BATZER, proved to me through satisfactory
evidence of identification,which was 1 tA-s on c f t /col 3tiu vi
to be the person whose name is signed on the preceding or attached document and
acknowledged-to me that he signedh vohintanlyfor its stated purpose.
ar-
Notary Public(Seal)
My Commission Expires: 5/5 /D,o
• •
ROGER'V.O'DAY
I
ATTORNEY AT LAW 1 I
466 MAW STREET I I BARNSTABLE COUNTY
PO'BOX366C REGISTRY OF DEEDS
xARVICHPORT:MA 02646 A TRUE COPY,ATTEST IMITABLE REGISTRY
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PLANNING BOARD OF NORWELL vs. SERENA, 27 Mass. App. Ct. 689 Page 1 of 4
41111160
LIE PLANNING BOARD OF NORWELL
vs. E. ANTHONY SERENA & another, [Note
ill individually and as trustees, [Note 2] &
another. [Note 31
27 Mass. App. Ct. 689
January 10, 1989 - August 16, 1989
Suffolk County
Present: GREANEY, C.J., ARMSTRONG, & KASS, JJ.
Further appellate review granted, 405 Mass. 1205 (1989).
Two lots were held in common ownership for purposes of a restrictive amendment to
a town's zoning by-law, notwithstanding a change in record ownership with the
intention of securing the "grandfather" protection of G. L. c. 40A, Section 6, fourth
par., where a judge could properly conclude that all of the land in each of the lots was
still available to avoid or reduce the dimensional nonconformity of either lot viewed in
isolation, [690-691]
CIVIL ACTION commenced in the Land Court Department on February 18, 1987.
The case was heard by Robert V. Cauchon, J.
Chester A. Janiak for E. Anthony Serena & another.
ARMSTRONG, J. The Serenas, anticipating Norwell's adoption four days
later of a zoning by-law amendment that would prevent use of their vacant
land on Parker Street as two separate building lots fronting thereon,
effected a transfer or transfers of title with the intention of securing the
grandfather protection of G. L. c. 40A, Section 6, fourth par., first sentence
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PLANNING BOARD OF NORWELL vs. SERENA, 27 Mass. App. Ct. 689 Page 2 of 4
(1988 ed.) (making increases in dimensional requirements inapplicable to
previously conforming lots held for single or two family residential use
where such lots are "not held in common ownership with any adjoining
land"). See Adamowicz v. Ipswich, 395 Mass. 757, 763-764 (1985). One of
the two resulting lots was
Page 690
put in the names of the Serenas as tenants by the entirety. The other was
put in their names as trustees of Parker Street Realty Trust, of which they
were the sole beneficiaries.
Not argued in this appeal is a question concerning the interpretation of the
by-law before its amendment. The planning board took the position that
the proposed division of the Serenas' land into two lots fronting on Parker
Street did not comply with the dimensional requirements of the by-law
before its amendment. The judge upheld the contrary position of the board
of appeals [Note 41 (we do not reach this question) but sustained the
denial of two building permits on the ground that the two lots were held "in
common ownership" for purposes of the zoning by-law despite the change
in record ownership.
On that point the judge's ruling was, in our view, correct. The purpose of
the statutory grandfather provision is, to be sure, to "protect[ ] a once
valid lot from being rendered unbuildable for residential purposes," Sturges
v. Chilmark, 380 Mass. 246, 261 (1980), but only if there is compliance
with statutory conditions. The condition that the nonconforming lot "not
[be] held in common ownership with any adjoining land" represents a
statutory codification of a principle of long-standing application in the
zoning context: a landowner will not be permitted to create a dimensional
nonconformity if he could have used his adjoining land to avoid or diminish
the nonconformity. See Vetter v. Zoning Bd. of Appeal of Atteleboro, 330
Mass. 628, 630 (1953); Sorenti v. Board of Appeals of Wellesley, 345'
Mass. 348, 353 (1963); Alley v. Building Inspector of Danvers, 354 Mass.
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PLANNING BOARD OF NORWELL vs. SERENA, 27 Mass. App. Ct. 689 Page 3 of 4
6, 7-8 (1968); Raia v. Board of Appeals of North Reading, 4 Mass. App. Ct.
318, 322 (1976); Arrigo v. Planning Bd. of Franklin, 12 Mass. App. Ct. 802,
803-804 (1981); Gordon v. Zoning Bd. of Appeals of Lee, 22 Mass. App.
Ct. 343, 349-350 (1986); Shafer v. Zoning Bd. of Appeals of Scituate, 24
Mass. App. Ct. 966, 967 (1987); DiCicco v. Berwick, ante 312, 313-314
(1989); Karet v. Zoning Bd. of Appeals of Worcester, ante 439, 440
(1989).
Page 691
In Sorenti v. Board of Appeals of Wellesley, supra, on which the judge
relied, the court held that a landowner could not take advantage of a
grandfather clause similar to that of G. L. c. 40A, Section 6, fourth par.,
first sentence, by putting part of his property in the name of a straw the
day before the town voted a dimensional (frontage) amendment to the
zoning by-law. "The nonconforming exemption was [held] not to apply . .
when the lot owner had adjoining land available for use in satisfying the
[new] minimum frontage requirement. The rationale of such a provision is
that an owner who has or has had adjacent land has it within his power, by
adding such land to the substandard lot, to comply with the frontage
requirement, or, at least, to make the frontage less substandard . . . . [T]
he owner cannot avail himself of the nonconforming exemption unless he
includes his adjacent land in order to minimize the nonconformity." 345
Mass. at 353. The trial judge's finding in Sorenti that the owner had
adjoining land available to reduce the nonconformity was sustained despite
the fact that the adjoining land stood in the name of the straw. The crux,
thus, was not the form of ownership, but control: did the landowner have it
"within his power", i.e., within his legal control, to use the adjoining land so
as to avoid or reduce the nonconformity?
We think the judge did not err in this case by finding, in effect, that all the
land in each of the Serenas' two lots was available to avoid or reduce the
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PLANNING BOARD OF NORWELL vs. SERENA, 27 Mass. App. Ct. 689 Page 4 of 4
dimensional nonconformity of either lot viewed in isolation. Compare
Cunningham v. Bright, 228 Mass. 385, 387-388 (1917).
The Serenas are not helped by Sturges v. Chilmark, supra; it dealt with a
different question, whether lots admittedly in common ownership were
"adjoining" lots for purposes of Section 6 where they touched only at a
single point. Nor is Baldiga v. Board of Appeals of Uxbridge, 395 Mass.
829, 830-834 (1985), of assistance to the Serenas; it dealt with the
second sentence of the fourth par. of Section 6, added by St. 1979, c. 106,
which in certain circumstances offers grandfather protection for five years
to limited numbers of adjoining residential lots that are in common
ownership. No contention has been made here (or
Page 692
below) that the Serenas' lots qualify for the grandfather protection of the
second sentence.
Judgment affirmed.
FOOTNOTES
'Note 1] Barbara Serena.
1Note 21 Of the Parker Street Realty Trust.
[Note 31 The board of appeals of Norwell.
[Note 41 The planning board, the plaintiff below, did not enter a cross-appeal
or file a brief.
Home/Search Table of Cases by Citation Table of Cases by Name
Commonwealth of Massachusetts. Trial Court Law Libraries. Questions about legal information? Contact
Reference Librarians.
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•
DISTEFANO vs.TOWN OF STOUGHTON, 36 Mass. App. Ct. 642 Page 1 of 5
Ablix
ALBERT N . DISTEFANO, individually
and as trustee, & others (Note 11 vs. TOWN
OF STOUGHTON & others. fNote2l
36 Mass. App. Ct. 642
April 15, 1994 - June 10, 1994
Suffolk County
Present: PERRETTA, KASS, & PORADA, JJ.
A judge of the Land Court correctly determined that the "checkerboard" conveyances
of twenty-one of forty lots purporting to place ownership so that no two adjacent lots
were held in common (an effort to perpetuate the nonconformity of the lots in
anticipation of the expiration of the period of immunity from more restrictive zoning
amendments) were ineffective, as all the nominal owners were under the control of a
single person, and the judge correctly entered a declaratory judgment that the locus
was subject to the more restrictive zoning by-law amendments. [645-646]
CIVIL ACTION commenced in the Land Court Department on June 6, 1988.
The case was heard by Robert V. Cauchon, J.
David C. Johnson for the plaintiffs.
Judith C. Cutler for the defendants.
KASS, J. In an effort to perpetuate the nonconformity of forty lots laid out
in a subdivision in 1967, the owner of those lots, A & A Contracting, Inc.,
engaged in "checkerboard" conveyances jNote 31 on August 29, 1974, in
anticipation of the expiration of the period of immunity from more
restrictive zoning
Page 643
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DISTEFANO vs.TOWN OF STOUGHTON, 36 Mass. App. Ct. 642 Page 2 of 5
amendments conferred by G. L. c. 40A, Section 7A, as amended through
St. 1965, c. 366. jNote 4] A judge of the Land Court found that, although
the checkerboard conveyances purported to place ownership so that no two
adjacent lots were held in common, the nominal owners were all under the
control of Albert N. DiStefano. Accordingly, the judge responded to the
owners' complaint for a declaratory judgment (G. L. c. 231A) with a
declaration that the locus was subject to zoning by-law amendments that
the inhabitants of Stoughton had adopted in 1970. We affirm.
At the time of the approval of the definitive subdivision plan for the locus,
September 15, 1967, the lot area and frontage requirements for the zoning
district (Residence B) in which the locus was situated were 15,000 square
feet and 100 feet. By amendments adopted in 1970, the minimum lot size
was increased to 40,000 square feet and the minimum frontage to 150
feet. As laid out in the 1967 subdivision plan, the forty lots of the locus
conformed to the dimensional requirements applicable in 1967. No lots
have been sold from the subdivision, and, indeed, none of the site
improvements laid down by the planning board in recorded covenants
[Note 5] as a precondition for the sale of lots has been contructed to date.
Section 7A of c. 40A provided that the "[zoning] by-law in effect at the
time of the submission of the first submitted [subdivision] plan shall
govern the land shown on such approved [subdivision] plan, for a period of
seven years from the date of endorsement of such approval
notwithstanding any other provision of law." That statutory seven-year
zoning "freeze," as it is sometimes called, jNote 61 ended, so far as the
1967 subdivision plan was concerned, on September 14, 1974.
Page 644
Faced with what it regarded as the grim prospect of having only fifteen
rather than forty lots to develop, the owner sought to avail itself of
grandfather provisions in Section 5A of "old" c. 40A. That section, broadly
stated (i.e., without regard to certain limiting factors as to minimum size
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DISTEFANO vs. TOWN OF STOUGHTON, 36 Mass. App. Ct. 642 Page 3 of 5
that were contained in the statute), gave perpetual life as a lawful lot for
zoning purposes to a parcel that, during the period it could lawfully be built
upon, was "held in ownership separate from that of adjoining land located
in the same residential district." G. L. c. 40A, Section 5A, as amended
through St. 1961, c. 435, Section 1. To that end, A & A Contracting, Inc.,
the record owner of all the lots in the subdivision, on August 29, 1974,
sixteen days before the freeze expired, conveyed twelve lots to Albert N.
DiStefano, as trustee of A.N.D. Realty Trust, five lots to Albert individually,
and four lots to Anna M. DiStefano, who is Albert's wife. The remaining
nineteen lots remained with A & A Contracting, Inc.
Without using the censorious word "sham," compare Lee v. Board of
Appeals of Harwich, 11 Mass. App. Ct. 148 , 151 n.4 (1981), to describe
the checkerboard conveyances, the judge found that Albert continued to
exercise control over all the lots in the locus after the conveyances and
ruled that those conveyances secured no grandfather rights under Section
5A for the locus. INote 71 In so doing, the judge followed Sorenti v. Board
of Appeals of Wellesley, 345 Mass. 348 , 353 (1963), and Planning Bd. of
Norwell v. Serena, 27 Mass. App. Ct.
Page 645
689, 691 (1989), S.C., 406 Mass. 1008 (1990), the latter of which
observed that "[t]he crux, thus, was not the form of ownership, but
control: did the landowner have it ' within his power', i.e., within his legal
control, to use the adjoining land so as to avoid or reduce the
nonconformity . . . ." It is a familiar principle that a landowner may not
claim rights from the nonconformity of a lot if that same person owns
adjoining land that would avoid the nonconformity. 27 Mass. App. Ct. at
690, and cases there cited.
It remains only to consider whether the record warranted the judge's
finding that Albert DiStefano retained the master hand as to all the lots in
the locus. He was the sole director and officer of A & A Contracting, Inc.,
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•
DISTEFANO vs. TOWN OF STOUGHTON, 36 Mass. App. Ct. 642 Page 4 of 5
according to an annual report filed with the Secretary of the
Commonwealth, although he testified that he was not "positive" whether
his wife Anna might have held an office as well. Of A.N.D. Realty Trust,
Albert was the sole trustee and had plenary powers to make conveyancing
decisions. Anna, merely by reason of her being Albert's wife, is not
automatically a controlled person so far as the lots to which she received
title are concerned. The judge could find, however, that her lots were, in
fact, under Albert's control because the group of lots transfered to her
were "sold" for a consideration of $100, i.e., nominal; there was no
evidence that the $100 was ever -paid; Anna acceded to Albert's control in
the corporation; and Albert filed a revised subdivision plan for the locus in
1983 for all the lots in the locus, with no participation by Anna. We may
disregard the shell of purportedly discrete legal persons engaged in
business when there is active and pervasive control of those legal persons
by the same controlling person and there is a confusing intermingling of
activity among the purportedly separate legal persons while engaging in a
common enterprise. My Bread Baking Co. v. Cumberland Farms, Inc., 353
Mass. 614 , 620-621 (1968). Evans v. Multicon Constr. Corp., 30 Mass.
App. Ct. 728 , 732-733 (1991). The judge rightly disregarded the
checkerboard conveyances, a device whose utility we have previously had
occasion to question. See Lee v. Board of Appeals of Harwich, 11
Mass.App. Ct. at 151
Page 646
n.4; Wright V. Board of Appeals of Falmouth, 24 Mass. App. Ct. 409 , 411
n.5 (1987).
The judgment declaring the rights of the parties is affirmed.
So ordered.
FOOTNOTES
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DISTEFANO vs. TOWN OF STOUGHTON, 36 Mass. App. Ct. 642 Page 5 of 5
[Note 11 Albert N. DiStefano is named individually and as trustee of A.N.D.
Realty Trust. The remaining plaintiffs are Anna M. DiStefano and A & A
Contracting, Inc.
[Note 2] The board of appeals, the planning board, and the building inspector
of Stoughton.
[Note 31 Through a series of conveyances a parcel can be divided in a
checkerboard pattern such that no person named as an owner of a lot holds
title to an adjacent lot. See Wright v. Board of Appeals of Falmouth, 24 Mass.
App. Ct. 409 , 411 n.5 (1987).
[Note 41 The reference is to the "old" zoning enabling act added by St. 1954,
c. 368, Section 2. The substance of what had appeared in Section 7A of the
old act appears now in the fifth paragraph of Section 6 of the "new" zoning
enabling act inserted in the General Laws by St. 1975, c. 808, Section 3.
[Note 5] See G. L. c. 41, Section 81U.
[Note 61 See Long v. Board of Appeals of Falmouth, 32 Mass. App. Ct. 232 ,
235 (1992). The duration of the freeze has had a history of ups and downs,
though mostly ups. It began as a three-year freeze. St. 1957, c. 297. In
1961, the freeze increased to five years. St. 1961, c. 435, Section 2. As we
have seen, the 1965 legislation set the freeze at seven years. With the
passage of St. 1975, c. 808, Section 2, the period descended once again to
five years, but in 1982 it went up to eight years. St. 1982, c. 185.
[Note 7] The town has argued that the plaintiffs never satisfied the criterion
of G. L. c. 40A, Section 5A, as amended through St. 1961, c. 435, Section 1,
that "building on such a lot was otherwise permitted" at the time of the
attempted protective conveyance. Such was the case, the town says, because
the owner of the locus at the time had yet to perform any of the covenants
imposed at the time of subdivision approval and there had been no
application for building permits. We think, in context, the words "otherwise
permitted" apply to zoning provisions and not other land use controls that
might bear on the land.
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17-P-851 Appeals Court
MILDRED J. KNEER, trustee,' vs. ZONING BOARD OF APPEALS OF
NORFOLK & another.2
No. 17-P-851 .
Suffolk. March 7, 2018 . - July 11, 2018 .
Present: Milkey, Blake, & Desmond, JJ.
Zoning, Lot size, Nonconforming use or structure. Real
Property, Merger.
Civil action commenced in the Land Court Department on
September 11, 2014.
The case was heard by Keith C. Long, J.
William D. Sack for the plaintiff.
David K. McCay for the intervener.
MILKEY, J. At the center of this case is an undeveloped
parcel of land (parcel) in the town of Norfolk (town) . Because
the parcel measures only 7, 650 square feet, it does not meet the
minimum lot size requirement set forth in the town zoning by-
' Of the Kneer Family Revocable Trust.
2 Thomas A. Murray, intervener.
2
law. The relevant town officials concluded that the parcel did
not enjoy "grandfathered" status, because it was held in common
ownership with adjacent lots when the town first adopted a
minimum lot size requirement in 1953, and that therefore the
lots had to be treated as one under the doctrine of merger. On
cross motions for summary judgment, a judge of the Land Court
rejected that position, ruling that the parcel was not rendered
unbuildable based on its being held in common ownership with
adjacent land in 1953.
Nevertheless, after trial, the judge ruled that the parcel
was rendered unbuildable under the doctrine of merger based on a
more recent event, namely, the acquisition of the parcel on
September 14, 2012, by the Kneer Family Revocable Trust (trust) .
The sole beneficiary of the trust at that time was, and remains,
the Kneer family matriarch, Mildred J. Kneer, who also serves as
a cotrustee. As of the date that the trust purchased the
parcel, the other cotrustee was Deirdre Mead, one of Kneer' s
three daughters . As the judge observed, in her capacity as
cotrustee, Mead had significant control over the trust' s assets,
albeit subject to her fiduciary duties to the trust' s
beneficiary, her mother. When the trust purchased the parcel,
Mead herself already owned adjacent property, where she long has
lived. The judge ruled that the confluence of Mead' s broad
authority over the parcel as cotrustee and her ownership of the
3
adjacent property in her own name effectively placed the two
properties in common ownership. Based on this, he concluded
that the properties must be treated as one for zoning purposes
under the doctrine of merger, explaining his ruling in a
carefully reasoned memorandum of decision. Kneer appealed.
Thomas Murray, an abutter and the intervener, filed a cross
appeal . Despite the cogency of the judge' s explanation for his
ruling, we conclude that he misapplied the relevant legal
principles . We therefore vacate the judgment and remand this
case for further proceedings .
Background. The recitation that follows is drawn from the
judge' s detailed findings of fact, none of which has been shown
to be clearly erroneous . We supplement those findings slightly
based on the agreed-to documentary evidence and other undisputed
background evidence. NPS, LLC v. Minnihan, 451 Mass . 417, 418
(2008) .
1 . The adoption of the town zoning by-law. The town
adopted its first zoning by-law in 1953 . That by-law
established a minimum lot size of 15, 000 square feet (since
increased to 43, 500 square feet, or approximately one acre, at
least in the applicable zoning district) . At that time, the
land in the neighborhood at issue already had been laid out as
lots depicted in a Land Court plan that had been filed in the
registry of deeds in 1945. Each of the current properties is
4
comprised of two or more of the originally depicted lots . Thus,
the parcel itself is made up of original lots 46 and 47, Mead' s
own land is made up of lots 44 and 45, and Murray' s land is made
up of lots 6, 12, and 13 . At the time the 1953 by-law was
adopted, the lots that now comprise the parcel were held in
common with other adjacent lots, including lots 48 and 49. The
parcel was severed from that common ownership in 1954 .
The 1953 by-law included a grandfathering provision. We
reserve for later discussion whether the specific terms of that
provision protected the parcel as buildable even though it was
held in common ownership with adjacent land when the by-law was
adopted.
2 . The Kneer family' s ties to the Hunter Avenue
neighborhood. Although Kneer herself lives elsewhere, all three
of her daughters have had significant ties to the town' s Hunter
Avenue neighborhood. Mead has had the strongest ties; she and
her then-husband first purchased property there in 1978, and she
has lived at her current property, 11 Hunter Avenue, since 1988 .
3 . The formation of the trust. Meanwhile, in 2001, Kneer
and her husband created the trust as an estate planning tool .
The two of them were the trust' s sole beneficiaries and
cotrustees . They placed various personal assets into the trust,
including their bank accounts and investment accounts .
5
4 . The original acquisition of the parcel . The parcel is
bordered on the east by 11 Hunter Avenue (owned by Mead) and on
the west by 7 Hunter Avenue (owned by Murray) . As of 2002, the
town had acquired the parcel through a tax taking. Through a
public auction, Mead' s oldest son, Douglas, acquired title to
the parcel on July 15, 2002 . However, some nine months later,
he transferred title to the person who had provided him with the
purchase money, Richard W. Drisko. Drisko was Douglas ' s uncle
by marriage (the husband of one of Kneer' s other daughters) .
5 . The 2010 amendment to the trust. In 2010, Kneer' s
husband -- who had been the trust' s cobeneficiary and cotrustee
-- died. Kneer therefore amended the trust through a
restatement dated May 24, 2010 (first restatement) . Although
Kneer remained the trust ' s sole beneficiary, Mead was added as a
cotrustee. Further details of the trust' s terms, as amended,
are reserved for later discussion.
6. The trust' s purchase of the parcel. In or before 2012,
Drisko and his wife divorced. As a result, Kneer "wanted to
help sever [her former son-in-law' s] ties to the [parcel] . " She
also "considered that there might come a time when she would
want to live near Ms . Mead" (her eldest daughter) . Accordingly,
on September 14, 2012, the trust -- which had been formed more
than a decade earlier -- purchased the parcel from Drisko for
6
$50, 000. As a result, the parcel became held by Kneer and Mead
as cotrustees .
7 . Efforts to develop the parcel . At least by 2013, Mead
began efforts to secure approval to build a small home on the
parcel. This included applying for a septic system construction
permit and a building permit. The permit applications were in
the trust ' s name, and Kneer was the sole signatory on the
documents. Mead did all the spadework in seeking the permits;
for example, she was the one who prepared the applications and
served as the point of contact for town officials .
8 . Procedural history. On July 13, 2013, the town health
agent granted the trust approval to install a septic system at
the parcel, which was referred to as 9 Hunter Avenue. However,
the town building inspector denied the trust' s application for a
building permit on April 8, 2014 . Relying on an opinion letter
from town counsel, the building inspector concluded that the
parcel was subject to the applicable minimum lot size
requirement and therefore was unbuildable. The opinion letter
appears to rest on two independent grounds. The first is that
the parcel was never subject to grandfathered protection because
it was held in common ownership with other undersized lots when
the town adopted its zoning by-law in 1953 . The second is based
on the application of merger doctrine to the trust' s acquisition
of the parcel in 2012 . According to counsel, Mead' s serving as
7
cotrustee of the trust and simultaneously owning the adjacent
property in her own name meant that the two properties must be
considered as one for zoning purposes . The town zoning board of
appeals (board) upheld the building commissioner' s denial of a
building permit based on his first stated ground, without
reaching the second. Kneer appealed pursuant to G. L. c. 40A,
§ 17, and Murray was allowed to intervene as a defendant.
On summary judgment, the judge rejected the argument that
the parcel was never subject to grandfathering protection.
However, after a two-day trial, he upheld the denial of the
building permit on the second ground, namely that, as of the
date the trust acquired the parcel in 2012, it merged with
Mead' s adjacent property. Relying principally on Planning Bd.
of Norwell v. Serena, 27 Mass . App. Ct. 689, 690 (1989) , S.C. ,
406 Mass . 1008 (1990) (Serena) , the judge focused on whether --
through her role as cotrustee -- Mead obtained legal control
over the parcel at the point the trust acquired it. The judge
recognized that, in taking any actions with respect to the
parcel (or, for that matter, with respect to any other assets of
the trust) , Mead was obligated to act consistent with her
fiduciary duties to Kneer (who was cosettlor, cotrustee, and
sole remaining beneficiary) . He also recognized that, with or
without cause, Kneer could at any time terminate Mead as
cotrustee or even revoke the trust. At the same time, however,
•
•
•
as the judge accurately observed, so long as the trust existed
and Mead continued to serve as one of its cotrustees, her powers
were broad. Most significantly, she could take action with
respect to trust assets without first consulting with Kneer, and
third parties were informed that they could rely on the actions
of one cotrustee acting alone.3 According to the judge, this
provided Mead sufficient control over the parcel that it must be
considered as being held in common ownership with the adjacent
land that she owned.4
Discussion. 1 . The relationship between grandfathering
and merger. It is uncontested that, under the town' s current
zoning by-law, the parcel does not meet current minimum lot size
requirements . Indeed, the parcel became nonconforming when
zoning initially was adopted in 1953 . It follows that the
3 This was confirmed by certificates of trust dated
September 28, 2012, and January 21, 2016. In those documents,
Mead certified under the pains and penalties of perjury that
each trustee has "authority to act with respect to the real
estate owned by [the] trust by the execution of any one trustee
acting alone. "
4 In 2015, after the controversy over potential merger had
arisen, the trust was amended a second time. The terms of the
trust' s second restatement sought to protect the parcel against
merger in the event of Kneer's death, e.g. , by stating that Mead
is not to serve as a trustee in that eventuality and that the
parcel is to be placed in trust at that time for Mead unless
doing so would "cause the property to merge with [11 Hunter
Avenue] . " Having determined that merger already occurred in
2012, the judge ruled that the second amendment was irrelevant.
See Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct.
733, 736 (1999) (once merger occurs, it cannot be undone) .
9
parcel is unbuildable unless it enjoys grandfathering
protection.
By statute, owners of existing lots generally are protected
against newly adopted minimum lot size requirements . See G. L.
c. 40A, § 6. However, protection offered by grandfathering must
be considered in conjunction with the doctrine of merger. That
doctrine aptly has been summarized as follows : " [A] djacent lots
in common ownership will normally be treated as a single lot for
zoning purposes so as to minimize nonconformities . " Preston v.
Board of Appeals of Hull, 51 Mass. App. Ct. 236, 238 (2001) ,
quoting from Seltzer v. Board of Appeals of Orleans, 24 Mass .
App. Ct. 521, 522 (1987) . Although merger has its roots in the
common law, " [t] he statutory ' grandfather' provision contained
in G. L. c. 40A, § 6, incorporates this doctrine by providing
protection from increases in lot area and frontage requirements
only to nonconforming lots that are not held in common ownership
with any adjoining land. " Carabetta v. Board of Appeals of
Truro, 73 Mass . App. Ct. 266, 269 (2008) . Thus, the statute
itself does not protect undersized lots from merger. However, a
town may adopt more generous grandfathering protection if it
does so explicitly. Marinelli v. Board of Appeals of Stoughton,
65 Mass. App. Ct. 902, 903 (2005) .
The town' s zoning by-law now offers grandfathering
protection that is coextensive with that offered by G. L.
10
c. 40A, § 6 . Therefore, it is undisputed that the parcel
currently is not protected from merger, and that it therefore is
no longer buildable if it merged with Mead' s adjacent property.
Before turning to that question, we first examine the subject of
Murray' s cross appeal, that is, whether the parcel ever enjoyed
grandfathered protection when the town adopted zoning in 1953,
or whether instead, as the board concluded, merger applied at
that time.
2 . Alleged merger in 1953 . The section of the 1953 by-law
that established minimum lot size and frontage requirements
included a grandfathering provision that stated as follows :
"Lots shown on any plan duly recorded by deed or plan at the
time this [by-law] is adopted may be used. " We agree with the
judge that this language plainly intended to offer
grandfathering protection to then-existing lots so long as at
that time the lots were shown on a plan that had been recorded.
See Shirley Wayside Ltd. Partnership v. Board of Appeals of
Shirley, 461 Mass. 469, 474-475 (2012) , and cases cited (while
deference is due to reasonable interpretations of by-law by
relevant local officials, meaning of by-law is ultimately
question of law for courts) . It is uncontested that lots 46 and
47 (of which the parcel is comprised) were depicted on a plan
that was recorded eight years prior to the adoption of the 1953
by-law. Accordingly, these lots did not lose their
11
grandfathered protection simply because they were held in common
ownership with other adjoining lots in 1953. See Marinelli, 65
Mass . App. Ct. at 903. Lots 46 and 47 then were severed from
common ownership with other adjacent lots in 1954 prior to the
town' s tightening of its grandfathering provision.5 The judge
correctly determined that the parcel did not lose grandfathering
protection upon the initial adoption of the zoning by-law. 6
3 . Alleged merger in 2012 . The key inquiry is whether, as
a result of the trust' s acquisition of the parcel in 2012, it
became held in common ownership with Mead' s adjacent property at
11 Hunter Avenue. As the judge observed, the case law
recognizes that lots can be deemed to be held in common
ownership under the doctrine of merger even if they nominally
are owned by different entities . We turn next to examining
representative cases that illustrate this principle.
5 As the judge observed, exactly when the town tightened the
grandfathering provision is not clear on the current record,
because the parties submitted only the original zoning by-law
and the version in effect in 2013. However, all parties appear
to have accepted that the original grandfathering provision
remained in place as of 1954, the year the lots making up the
parcel became severed from surrounding property.
6 It is undisputed that, as a result of the town' s
tightening of its grandfathering provision, lots 46 and 47 --
the constituent parts of the parcel -- have lost their
independent status and have merged for zoning purposes. This is
a separate question from whether the parcel as a whole merged
with adjoining property.
12
In Serena, 27 Mass. App. Ct. at 690, S .C. , 406 Mass. 1008,
the case on which the judge primarily relied in his memorandum
of decision, a married couple wanted to subdivide property they
owned into two buildable lots. To avoid the effects of an
anticipated change to the zoning by-law, they transferred one
lot to themselves as tenants by the entirety and the other to
themselves as trustees of a realty trust of which they were the
sole beneficiaries. Serena, 406 Mass. at 1009. The Land Court
judge there had "concluded that the Serenas were entitled only
to one building permit for the combined lots because the Serenas
could use the two lots ' as one if they so chose. '" Ibid. In a
three-paragraph rescript opinion, the Supreme Judicial Court
affirmed the Land Court judgment. Ibid. Despite the brevity of
the opinion, it is plain that the court endorsed the principle
that "a landowner will not be permitted to create a dimensional
nonconformity if he could have used his adjoining land to avoid
or diminish the nonconformity. " Ibid. , quoting from Serena, 27
Mass. App. Ct. at 690 (Appeals Court decision in same case for
which further appellate review was granted) .?
7 The judge extensively cited to, and quoted from, our
opinion in Serena, and the parties treat the Supreme Judicial
Court' s opinion in that case as affirming our decision. We take
this opportunity to note that -- unlike in the Federal court
system, see 28 U.S.C. § 1254 (2012) -- when the Supreme Judicial
Court grants further appellate review, it does not affirm or
reverse the Appeals Court' s opinion; rather, it sits in review
of the trial court's judgment. As a result, a Supreme Judicial
13
Because the property owners in Serena owned one lot as
cotrustees of a realty trust of which they were the sole
beneficiaries, and owned the adjoining lot personally as tenants
by the entireties, they together retained full legal and
beneficial ownership of the two lots and were free to use the
lots "as one if they so chose. "8 Ibid. Serena thus presented a
markedly straightforward case for looking beyond the nominal
form of the ownership interests and treating contiguous parcels
as being held in common ownership.
A second illustrative example is DiStefano v. Stoughton, 36
Mass. App. Ct. 642 (1994) , another case in which an owner
unsuccessfully tried to avoid merger by placing some of its
property into nominally different ownership. DiStefano involved
a forty-lot tract of land that had been owned by a close
corporation of which a particular individual was the sole
Court opinion issued in a case in which further appellate review
was granted generally supersedes the opinion issued by this
court. Of course, the Supreme Judicial Court is free to adopt
our reasoning by reference. See, e.g. , Renaud v. Commonwealth,
471 Mass. 315, 319 n. 6 (2015) ; Commonwealth v. Brown, 479 Mass.
600, 607 (2018) . In addition, when a case taken on further
appellate review ends in a tie vote in the Supreme Judicial
Court, the Appeals Court opinion is resurrected "unless a
majority of the participating justices [of the Supreme Judicial
Court] decides otherwise. " Mass .R.A.P. 24. 1, 416 Mass. 1601
(1994) .
8 In fact, in a realty trust, also known as a nominee trust,
the powers of trustees are extremely limited; essentially, they
serve as agents of the beneficiaries. See Bellemare v.
Clermont, 69 Mass . App. Ct. 566, 571 (2007) , and cases cited.
14
officer and director. Id. at 643, 645 . In anticipation of a
zoning amendment that would reduce the number of buildable lots,
the individual had his company transfer ownership of some of the
lots to himself individually, some to his wife, and some to
himself as trustee of a realty trust. Id. at 644 . This left
the property divided in a "checkerboard" pattern, in which "no
two [adjoining] lots were held in common" by the same nominal
owner. Id. at 643. The Land Court judge in that case found
that the same individual retained full control of all of the
lots notwithstanding that they nominally became held by four
different owners . Ibid. We upheld the judge' s ruling that
merger applied under these circumstances, pronouncing that " [w] e
may disregard the shell of purportedly discrete legal persons
engaged in business when there is active and pervasive control
of those legal persons by the same controlling person and there
is a confusing intermingling of activity among the purportedly
separate legal persons while engaging in a common enterprise. "
Id. at 645, citing My Bread Baking Co. v. Cumberland Farms,
Inc. , 353 Mass . 614, 620-621 (1968) (then, as now, the leading
case on piercing the corporate veil) . In this manner, we
equated disregarding nominally different ownership for purposes
of applying the doctrine of merger with "veil piercing. "
In these and similar cases, the same person who possessed
the power to control the contiguous lots retained the ability to
15
use them as he desired, including to "use [] his adjoining land
to avoid or diminish the nonconformity. " Serena, 406 Mass. at
1009, quoting from Serena, 27 Mass . App. Ct at 690 . Our
willingness to look beyond who nominally held legal title to the
lots must be seen in this light.
We turn now from the case law to the case before us .
Critically, the judge did not rule that the existence of the
trust should be disregarded, with Mead herself deemed the real
owner of the parcel. To the contrary, the judge relied on the
existence of the trust, resting his decision solely on the
breadth of Mead' s authority as cotrustee. Because Mead
possessed broad authority to take actions with respect to trust
assets without needing to seek Kneer' s prior approval, the judge
ruled that this effectively gave her "legal control" of the
parcel. In turn, the judge reasoned, the breadth of this
authority was sufficient, by itself, to place the parcel in
common ownership with the adjacent property that Mead owned
individually.
The error in the judge' s reasoning is that it passes over
the fact that Mead' s powers over the parcel necessarily were
subject to her fiduciary obligations . See Old Colony Trust Co.
v. Silliman, 352 Mass . 6, 10 (1967) (" [E] ven very broad
discretionary powers [of a trustee] are to be exercised in
accordance with fiduciary standards and with reasonable regard
16
for usual fiduciary principles") . As a trustee, Mead' s "first
duty [was] the protection of the trust estate, " and she could
not allow any of her own interests to interfere with those of
Kneer, the trust' s beneficiary. Johnson v. Witkowski, 30 Mass.
App. Ct. 697, 706 (1991) . The judge acknowledged that
limitation but ultimately found it to be of no moment. We
disagree. Mead was not in a position in which she lawfully
could have appropriated the parcel as her own; indeed, such
conduct would have amounted to an obvious breach of her
fiduciary responsibilities. Ibid.9 Accordingly, despite the
breadth of the authority that Mead possessed as cotrustee, she
still could not lawfully use the parcel to lessen the
nonconformity of her own property with the minimum lot size
requirement. It follows that Mead's status as cotrustee of the
trust that owned the parcel did not, by itself, render the two
properties as being held in common ownership. See Serena, 406
Mass. at 1009.
None of this is to say that the existence of Mead' s
fiduciary duties to Kneer necessarily insulated Mead -- or the
trust -- from a claim of veil piercing. Nor do we mean to
suggest that the judge could not have considered whether the
9 Put differently, because Mead's treatment of the parcel as
her own would have -- by operation of merger -- destroyed the
ability to develop the parcel (thereby depriving the trust of
much of the $50, 000 it paid for the parcel) , taking such actions
would directly conflict with her fiduciary duties as cotrustee.
•
17
trust was used as a means of masking an arrangement in which, in
reality, it was Mead, not Kneer, who held "the master hand."
DiStefano, 36 Mass. App. Ct. at 645. Thus, it may be that the
judge was correct to conclude that the parcel and Mead's
property should be viewed as a single lot based on grounds
different from those on which he relied. We turn next to
whether the veil piercing issues can be resolved, as a matter of
law, in favor of either party.
There are some established facts that cut in favor of veil
piercing and merger. For example, the judge found that Mead "in
fact has exercised control over the . . . [p]arcel, " and he
rejected Kneer' s claim that Mead was leading the effort to
develop it "simply to help her mother. "10 At the same time,
however, the judge expressly found that in taking her actions
with respect to the property, "Mead was acting in her capacity
as [coltrustee. " Thus, the mere fact that Mead exercised
control over the parcel does not mean that she strayed from her
role as a cotrustee faithfully serving Kneer' s interests .11 In
10 We additionally note that the judge was skeptical that
Kneer herself ever planned to move to the parcel. The import of
this issue is not 'immediately apparent since, needless to say,
one can own property without intending to move there.
11 Of course, it may well be that Kneer has been allowing
the parcel to be used in a manner that ultimately will benefit
Mead (or, perhaps, Mead' s son, Douglas) . But that equally could
be true if Kneer had purchased the parcel in her own name. That
Mead may obtain such benefits now or upon Kneer' s death does not