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Massachusetts Appeals Court Finds Abutter Standing Based on Impacts to Street Parking, Rejects “Separate Identity” Exception to Merger Doctrine

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, 2009

In Hoffman v. Board of Zoning Appeal of Cambridge, Appeals Court No. 07-P-1853 (Aug. 10, 2009), the Appeals Court addressed two separate appeals involving standing and merger issues at the same property.  In the first, which focused on the standing of the abutter bringing the appeal, the Court ruled on the validity of a variance issued to the owner of two adjacent parcels necessary to allow construction of two units of housing on a parcel currently used for parking.  The second appeal involved the status of those two adjacent parcels under the merger doctrine.

The cases involved two parcels located in Cambridge that first came into common ownership in 1950.  From 1950 through 2000, one parcel held a building with four housing units and the other parcel was used for commercial parking.  The two parcels were separated by a fence.  In 2000, the current owner purchased the two parcels and took title through a single deed, planning to construct two housing units on the vacant parcel.  He secured building permits in 2000.  After construction was complete, the property owner secured certificates of occupancy. 

In 2003, the Building Commissioner rescinded the certificates of occupancy based on a determination that the two parcels had merged into a single lot for zoning purposes.  If the two parcels were considered a single lot, the newly constructed two units would be in violation of the Cambridge zoning ordinance’s minimum lot area per dwelling unit requirement.  The property owner appealed the rescission to the Zoning Board of Appeal (“ZBA”), which affirmed, and then to the Superior Court.

The property owner subsequently applied to the ZBA for a variance to legalize the two newly constructed units, and the ZBA granted that variance.  An abutter residing across the street from the parcels appealed that decision to the Land Court.  Both appeals were consolidated in the Land Court and heard in a single trial.

As to the abutter appeal of the variance, the Land Court ruled the abutter lacked standing to pursue the appeal.  The Appeals Court reversed this ruling, finding that impacts to on-street parking near the abutter’s residence was dispositive as to standing.  Both parties presented testimony from traffic experts on the question of the impact of two additional housing units on the availability of on-street permit parking.  The Appeals Court noted that in a prior instance, the Supreme Judicial Court found that even a diminution in on-street parking that would leave adequate parking available was sufficient to confer standing.  In this case, the abutter put forth credible evidence that if the two additional dwelling units were occupied, her ability to park on her block would be diminished or even extinguished due to the limited amount of street parking currently available on the block.  This was sufficient to establish a particularized injury for the purposes of standing.

Reaching the merits of the variance decision, the Appeals Court found the decision granting the variance was insufficient as a matter of law where it did not address all of the statutory prerequisites of G.L. c. 40A, § 10, including whether the variance could be granted without causing substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the ordinance. 

Without the variance, the two housing units would be unlawful under the zoning ordinance if the two parcels had in fact merged for zoning purposes as found by the Land Court.  Under the merger doctrine, adjacent nonconforming lots generally merge for zoning purposes when they come into common ownership.  In this case, the property owner asserted that because the lots retained their “separate identity,” they had not merged.  The Appeals Court acknowledged that previously it had suggested that lots retaining separate identities may not be subject to the merger doctrine.  However, in this case, the Court concluded that there was no basis for such a rule and, in fact, adjacent nonconforming lots that retain their separate identities are not exempt from the merger doctrine. 

In this case, therefore, the lots would be considered merged unless Cambridge had adopted a more generous ordinance overriding the common-law merger doctrine and allowing adjacent nonconforming lots coming into common ownership to be treated as separate lots for zoning purposes.  The Appeals Court remanded the case so that the ZBA could fully consider the zoning ordinance and whether it provided such relief to the property owner in this case.

For further information, please contact Marc J. Goldstein at mgoldstein@bdlaw.com or Krista L. Hawley at khawley@bdlaw.com.