Merging Two Lots After Zoning Change

Pursuant to G. L. c. 240, 14A, plaintiff seeks a declaration that a certain parcel of land, known as and located at 52 Westland Avenue in Saugus (locus), is entitled to protection under G. L. c. 40A, 6, P4, as a nonconforming residential lot. By decision entered on October 30, 2000, I allowed, in part, plaintiff's motion for summary judgment, concluding that plaintiff's request is not barred by a prior action by the Saugus zoning board of appeals on a request by plaintiff's predecessor in title. However, plaintiff's motion did not raise the underlying substantive question whether the lot is entitled to protection under G. L. c. 40A, 6. the parties determined to present that remaining question on the basis of a case stated, without oral argument. to that end, the parties on April 2, 2001, submitted an agreed statement of the facts relevant to the question. On March 30, 2001, the Appeals Court issued its decision in Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 744 N.E.2d 1126 (2001). That case considered whether two lots, held in separate ownership at the time a zoning change rendered them nonconforming, would merge into a single lot if they thereafter came into common ownership. Based on an extensive review of the legislative history of the zoning act, and particularly of the provisions relating to 6, the Court concluded that lots held in separate ownership at the time of a zoning change would merge if the lots subsequently came into common ownership. In light of the Preston decision, I convened a telephone status conference with the parties, on May 9, 2001, to determine whether they wished to submit additional arguments or materials, or otherwise to be heard regarding the effect of the Preston decision on the instant matter. Both parties made argument during the telephone hearing, but both declined further submission. Accordingly, on the agreed facts I find and rule as follows. 1. Locus contains approximately 5,634 square feet of land, an amount inadequate to meet current zoning requirements. Applicable zoning required a minimum of 10,000 square feet of area at the time this action commenced, and has increased to a minimum of 20,000 square feet as of the date of the hearing on plaintiff's motion. 2. on April 1, 1957, Saugus amended its zoning by-law to increase minimum lot size to 10,000 square feet. Prior to that amendment, locus met the minimum lot size requirement. 3. Locus consists of lots 66 and 67 as shown on a plan recorded with the Essex south district registry of deeds in plan book 25, plan 1 (plan). 4. on March 27, 1961, locus came into common ownership with lots 64 and 65 as shown on the plan; such lots were then held by Earle and Melva Smith. by mesne conveyances, title passed to Judith X. on March 2, 1987, Ms. X conveyed locus to Lorraine Albiero, retaining lots 64 and 65. on April 30, 1987, Ms. X conveyed lots 64 and 65 to Thomas X. This case is controlled by Preston. I acknowledge the distinction noted by plaintiff - that the lots here are no longer in common ownership. However, though that fact may complicate the zoning status of the separate lots as they now stand, I do not consider it to bear on the analysis in Preston. That analysis states, quite conclusively, that lots held separately at the time of a zoning change merge for purposes of 6 if they later come into common ownership. Accordingly, judgment shall enter, stating that locus is subject to the minimum lot size requirement of 10,000 square feet adopted in 1961 and, consequently, that locus does not meet the minimum lot size requirement. Judgment to issue accordingly.