Asack v. Board of Appeals of Westwood

In Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733, 716 N.E.2d 135 (1999), the plaintiffs' predecessors in title (original owners) purchased a lot (lot 8) in 1936 on which their home was situated. In 1942, the original owners acquired an adjacent vacant parcel of land (lot 7). Due to zoning changes after 1936, lot 7 lacked the frontage and area needed to be a buildable lot. In 1970, the original owners obtained a variance that qualified lot 7 as a buildable lot. Id. at 734. In 1972, the original owners in Asack conveyed lot 8 to a couple named Prosser (Prossers). The following year, the original owners sold lot 7 to the Prossers. In 1988, the plaintiffs acquired both lot 7 and lot 8 from a trust into which the Prossers had previously deeded those lots. Id. The Asack court quoted with approval the statement of the local board of appeals that "'To the extent that the separation of said Lot 7 and Lot 8 could in any way be determined an exercise of a variance, the subsequent merger of Lot 7 and Lot 8 in common ownership in the absence of anything more, would nullify any type of exercise.'" Id. at 735. Citing the principle that "'a landowner will not be permitted to create a dimensional nonconformity if he can use his adjoining land to avoid or diminish the nonconformity,'" the court held the plaintiffs could not avail themselves of the previously granted variance. Id. at 735-736.