Sciacca v. Caruso
In Sciacca v. Caruso, 769 A.2d 578 (R.I. 2001), Caruso held two adjacent lots, each of which met the minimum buildable lot size at the time they were acquired by her in the 1960's. The owner constructed a dwelling on Lot 91 and landscaped and placed a shed on lot 92. Id. at 579.
Nearly twenty years later, the town amended its zoning ordinance, which increased the minimum lot size and frontage requirements. As a result, the lots did not meet the frontage or area requirements under the new ordinance.
However, if combined, the lots satisfied the new regulations. In the same amendment to the zoning ordinance, the town included "a so-called merger provision, pursuant to which contiguous lot Nos. 91 and 92 merged into one lot to meet this particular residential zoning district's minimum lot area and frontage requirements." Id. at 579-80.
The merger provision provided:
"Contiguous lots under the same ownership. Where no adjacent lot is in the same ownership at the time this amendment becomes effective, so as to enable the formation of a larger lot, an existing lot shown on a plat duly recorded in the office of the town clerk prior to January 6, 1953 which fails to meet either the minimum frontage requirements or minimum area requirements, or both, of this chapter, may be used for a one-family dwelling in an R-40, R-20, R-15, R-10 and R-7 district. Where land adjacent to such a lot is in the same ownership, the exemption of the previous sentence shall not apply. If adjacent land in the same ownership is not sufficient to meet the minimum frontage requirements or minimum area requirements, or both, then the largest area and frontage which the adjoining common ownership make possible shall be provided.
"No parcel, tract or lots of land contiguous to each other and under single ownership shall be subdivided in a manner where the lot width or area shall be below the requirements fixed by this chapter. No yard, or open space provided around any building for the purpose of complying with the provisions of this chapter, shall again be used as a yard or open space for any other building.
"Nothing contained in paragraphs (a) or (b) shall be construed to exempt such lots from the side yard, front yard, and rear yard requirements of the zone in which such lots are located." Johnston Town Code 26-16(b) (1995). (Id. at 580 n.1.)
In 1997, Caruso sought to build a dwelling on Lot 92. To "unmerge" the lots, she was granted approval to subdivide the property along its original lines. She then sought a variance from the minimum area and frontage requirement. Although several neighboring property owners objected to the variance request, it was ultimately granted by the zoning board. Id. at 581.
The opponents then challenged that ruling in court.
Under Rhode Island statutory law, in order for a property owner to be entitled to a variance from frontage or area requirements, the owner must satisfy the zoning board "that the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience, which means that there is no other reasonable alternative to enjoy a legally permitted beneficial use of one's property." Id. at 583.
Moreover, before a zoning board grants a variance, it must be satisfied that any hardship suffered was "not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain.'" Id.
"Given this statutory language and the circumstances concerning how Caruso created the substandard lot that was the subject of her variance request," the Supreme Court of Rhode Island ruled that "the zoning board's grant of a dimensional variance . . . improperly ignored the 'prior action of the applicant' in creating the alleged hardship." Id. at 584.
It continued, id.: "Here, the undeniable fact is that Caruso's prior action caused the planning board to subdivide her single-conforming lot into two substandard-sized parcels, thereby creating the undersized lot in question. This 'prior action" resulted in the self-created hardship that she later used as the basis for her variance request."
In overruling the zoning board, the court concluded:
"To rule otherwise would allow Caruso and other similarly situated property owners to circumvent applicable zoning laws pertaining to the validity of merger provisions like those in the town's zoning ordinance, as well as to evade the threshold showing of hardship that is required to obtain relief from their application through the granting of a dimensional variance." Id. at 585.
We are not persuaded by Sciacca. The question remains whether the doctrine of merger applies here.
In Friends of the Ridge, 352 Md. 645, 724 A.2d 34, the property owner, BG&E, sought a declaration that three adjacent properties it owned merged for zoning purposes, so that the site was of sufficient size to allow it to enlarge an electricity substation. BG&E applied for a variance from certain setback requirements in order to operate the larger substation. The Board determined, however, that no variance was necessary. Id. at 648 n.3.
The petitioners, Friends of the Ridge, appealed, asserting that because the parcels were never legally combined, BG&E was required to obtain a variance to use the three parcels as one. Id. at 649.
The Court of Appeals sustained the Board's decision that the variance criteria of BCZR did not apply, reasoning that the assemblage of contiguous parcels was sufficiently large to overcome the conditions triggering the need for a variance. Id. at 662.
With regard to the principles of merger, the Court said, id. at 653-54:
"Efforts throughout the country, including Baltimore County, have been to restrict undersized parcels, not oversized parcels. These efforts have resulted in the creation and evolution in zoning of the doctrine of merger, which, in zoning cases, generally prohibits the use of individual substandard parcels if contiguous parcels have been, at any relevant time, in the same ownership and at the time of that ownership, the combined parcel was not substandard. In other words, if several contiguous parcels, each of which do not comply with present zoning, are in single ownership and, as combined, the single parcel is usable without violating zoning provisions, one of the separate, nonconforming parcels may not then or thereafter be considered nonconforming, nor may a variance be granted for that separate parcel. Some cases discuss automatic merger, but most require that the intent of the owner to merge the parcels be expressed, though little evidence of that intent is required. As far as we can discern, the zoning doctrine of lot merger has never been applied in any jurisdiction to limit the creation of parcels that exceed minimum dimensional requirements; merger has been applied only to prohibit the later creation of undersized parcels. This, perhaps, is due to the general lack of objection to large parcels. A discussion, however, of how the doctrine of merger applies conversely to the present case may help emphasize that, in the context described above, merger occurs without the need for official subdivision or conveyancing. It is accepted automatically in some jurisdictions or, most often, with minimum proof of the owner's intent in other jurisdictions and always without the necessity of official action. We see no reason why a doctrine that seeks to prevent the proliferation or use of nonconforming, undersized lots by holding that they have been combined or merged into a larger parcel should not, as far as zoning is concerned, be applied properly to permit the creation, through the combining by use of a larger parcel from already conforming smaller parcels, without the necessity of official action or conveyancing"
Ultimately, the Court held that "a landowner who clearly desires to combine or merge several parcels or lots of land into one larger parcel may do so." Id. at 658.
The Court said: "An owner of contiguous parcels of land may merge those parcels to form one tract if he desires to do so. An intent on the part of the owner to do so may be inferred from his conduct with respect to the land and the use which he makes of it. . . . Intent is a question of fact." Id. at 659.
The Court recognized that one way for a landowner to manifest intent to merge contiguous properties is by "integrating or utilizing the contiguous lots in the service of a single structure or project . . . ." Id. at 658.