In this action brought under G.L. c. 40A, § 17, the court issued a Decision and Judgment on April 26, 2017. Plaintiffs M. Therese Burdo and Robert T. Miragliuolo filed Plaintiffs' Motion for Reconsideration on May 8, 2017. Defendants Terrance Murphy and Valerie Murphy (Murphys) filed their Opposition to Plaintiffs' Motion for Reconsideration on May 21, 2017. The court heard the Motion for Reconsideration on May 22, 2017, and took the matter under advisement. For the reasons set forth below, the Plaintiffs' Motion for Reconsideration is allowed and the prior Judgment is vacated. An Amended Decision will issue and an Amended Judgment shall enter.
In the Motion for Reconsideration, the Plaintiffs ask the court to reconsider the propriety of remanding the decision to the Chelmsford Zoning Board of Appeals (Board) to consider whether granting a variance for a contiguous upland requirement in the Chelmsford Zoning Bylaw (Bylaw) to allow the Murphys to build on their vacant lot (Subject Lot) is warranted. The Plaintiffs contend that because the court determined that the Murphys' two lots had merged for zoning purposes, and one house already exists on the merged lots (House Lot), a variance cannot be issued that would allow construction of a second home. Conversely, the Murphys argue that even though the Subject Lot does not receive grandfathered protection and has merged with the House Lot for zoning purposes, a variance can be granted for the Subject Lot from the contiguous upland requirement so that the proposed construction of a second dwelling can go forward. Upon further consideration, the court finds that a remand to the Board to determine whether the Murphys are entitled to a variance for the contiguous upland requirement was erroneous.
The merger doctrine is a long-standing and generally-applied principle that calls for adjoining land in common ownership to be added together in order achieve dimensional conformity or reduce the nonconformity with the current zoning law. Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348 , 353 (1963); Preston v. Hull, 51 Mass. App. Ct. 236 , 238 (2001). Likewise, "[a] person owning adjoining record lots may not artificially divide them so as to restore old record boundaries to obtain a grandfather nonconforming exemption." Asack v. Board of Appeals of Westwood, 47 Mass. App. Ct. 733 , 736 (1999); Bruno v. Tisbury Zoning Bd. of Appeals, 24 LCR 587 , 595 (2016) ("Flowing from this overarching emphasis on having lots of sufficient size to meet current zoning, our courts have recognized the common-law principle of 'infectious invalidity', under which 'a property owner may not create a valid building lot by dividing it from another parcel rendered nonconforming by such division.'"), quoting 81 Spooner Road, LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692 , 694-695 n. 6 (2012). Under the merger doctrine, contiguous substandard lots under common ownership may lose their separate identity and be treated as a single parcel for purposes of zoning area requirements and subdivision restrictions. Rice v. Quirk, 20 LCR 450 , 452 (2012), citing Edward H. Ziegler, Jr., Arden H. Rathkopf, and Daren A. Rathkopf, Rathkopf's The Law of Zoning and Planning, § 49:13 (4th ed.).
Here, the change in the dimensional contiguous upland requirement in the Bylaw rendered the two lots owned by the Murphys merged, resulting in a single lot. Even if the Board were to grant the Subject Lot a variance from the contiguous upland requirement based on soil conditions, shape, or topography, this does not override and exempt the Subject Lot from the merger doctrine to permit it to be validly split off from the rest of the parcel to form the basis of a new buildable lot. Nor do the Murphys point to any language in the Bylaw that would exempt the Subject Lot from being considered one lot in order to meet the requirements of the zoning amendment. The grandfathering provision in the Bylaw does not offer more liberal protections than G.L. c. 40A, § 6. Section 195-10 of the Bylaw is the only section addressing existing nonconforming lots, which states: "No existing nonconforming lot shall be changed in size or shape, except through a public land taking or donation for road widening, drainage or utility improvements or except where otherwise permitted herein, so as to increase the degree of nonconformity that presently exists." Exh. 5, § 195-10. This language demonstrates that Chelmsford did not intend to do away with the merger doctrine by providing a generous exception. Rather, the town chose to rely on the provisions of § 6.
The merging of the Subject Lot and House Lot rendered the Subject Lot unbuildable. The merged lot is located in the RB (Single Residence) Zoning District. Since the House Lot is already improved by a single family residence, the now merged lot cannot support two residential homes. Section 195-102.B(2) of the Bylaw expressly prohibits the Board from granting use variances. Thus, two single family homes cannot be authorized on one lot in the RB zone in Chelmsford and both the Bylaw and the doctrine of infectious invalidity prohibit any subdivision of a merged lot. Since this violation of the Bylaw cannot be cured by a variance, it is unnecessary to remand the matter to the Board for further consideration. See Timperio v. Zoning Bd. of Appeals of Weston, 84 Mass. App. Ct. 151 , 158 (2013). The Remand Decision will be annulled.
For the reasons set forth above, the Motion for Reconsideration is ALLOWED and the Judgment is VACATED. An Amended Decision and an Amended Judgment are to issue accordingly.
SO ORDERED
M. THERESE BURDO and ROBERT T. MIRAGLIUOLO v. JOHN R. BLAKE, JR., BRIAN REIDY, LEONARD R. RICHARDS, JR., PAUL J. HAVERTY, WALTER CHAGNON, EILEEN M. DUFFY, JOEL J. LUNA, and MARK CAROTA, all in their capacity as members of the CHELMSFORD ZONING BOARD OF APPEALS, TERRANCE MURPHY, and VALERIE MURPHY.