In 2007, when the Supreme Judicial Court (SJC) decided Rourke v. Rothman (pdf), it seemed clear that the court was endorsing the principle that a local bylaw exemption from the effects of the common law zoning merger doctrine could itself give rise to grandfathering protection under M.G.L. c. 40A, sec. 6 (pdf) (Section 6).  A recent Appeals Court decision, Kimmett v. Town of Tolland, attempts to distinguish Rourke.  In doing so, the court appears to ignore Rourke’s essential holding.  Because the Appeals Court’s Kimmett decision is an “unpublished” decision and rather short scary haircut.jpgon analysis, it is advisable to read the lower court decision (pdf). 

As aficionados of nonconforming use law will recall, in Rourke v. Rothman, the SJC interpreted the phrase “then existing requirements” in Section 6 broadly, to include both the dimensional requirements of the local zoning bylaw and any local exemption that modified the common law merger doctrine.  Thus, Rourke stands for the proposition that a grandfathered lot is deemed to conform with the “then existing requirements” even if its buildable status at that time was itself based on a grandfathering provision in the local bylaw.  In other words, if the lot was not owned in common with adjoining land at the time of the most recent instrument of record prior to the zoning change that rendered it nonconforming, and if the lot also conformed to the then-existing requirements (whether because of a grandfathering provision or not), it remains grandfathered under Section 6. 

In Kimmett, even though the locus was owned in common with an adjoining lot between 1976 and 2004, it became buildable under a generous grandfathering provision adopted in 1978.  In 2004, the locus became separated from the adjoining lot.  In 2005, the 1978 grandfathering provision was repealed.  Applying Rourke v. Rothman, the most recent instrument of record prior to the 2005 zoning amendment was the 2004 deed that caused the locus to become separated from the adjoining lot.  Under Rourke, then, 2004 is the operative date for determining whether the locus is grandfathered under Section 6.  As of that date, the locus was buildable and it conformed to the then-existing requirements.  However, in Kimmett, the Land Court apparently treated 1976 (the date the owner of the locus first acquired the adjoining lot) as the operative date for determining conformance with then-existing requirements.  The Land Court ruled – and the Appeals Court has now affirmed – that once the 1978 grandfathering provision was repealed in 2005, the locus “re-merged” with the adjoining lot – even though that lot was no longer owned in common with locus – rendering the locus unbuildable.

The harsh result in Kimmett seems even harsher since it appears to be directly at odds with the controlling decision in Rourke v. Rothman.