In its recent decision in Johnson v. Board of Appeals of Andover (pdf), the Appeals Court affirmed a Land Court ruling that a 1971 eminent domain taking of part of a lot destroyed the lot’s grandfather protection under M.G.L. c. 40A, § 6 (pdf) (Section 6).  The court noted that, when this occurs, the owner is entitled to seek compensation for any diminution in value attributable to the loss of grandfathered status.  However, that fact is probably of little consolation to Johnson, who bought the lot in 2006 with awareness of both the 1971 taking and the town’s position that the lot was no longer grandfathered. 

The lot at issue (Lot 38) was vacant land that had been part of a larger parcel created in 1876.  In 1965, Lot 38 – which at the time was 25,770 square feet in area – became lawfully non-conforming when the Town of Andover increased the applicable minimum lot size requirement to 43,560 square feet.  In 1971, the town took a portion of Lot 38 by eminent domain, leaving the lot with a remaining area of 21,867 square feet.

In 2005, Johnson and the then-owner of Lot 38 applied for a building permit and were denied.  The basis for the denial was that Lot 38 was not the same parcel referenced in any deed recorded prior to the 1965 increase in the minimum lot size requirement.  The Land Court affirmed the local denial and Johnson (who by then had bought the lot) appealed.  

The Appeals Court observed that Section 6 protects certain lots from increases in dimensional requirements, but, to be eligible for protection, a lot must have conformed with all zoning requirements at “the time of recording or endorsement.”  Under Adamowicz v. Ipswich (pdf), “the time of recording or endorsement” means the time of the most recent instrument of record prior to the effective date of the zoning change.  In this instance, what remained of Lot 38 post-taking (effectively a new, smaller lot) was not eligible for protection because it did not exist prior to 1965, much less conform with the then-existing requirements.

Given the language of Section 6, the Appeals Court’s Johnson decision is not surprising.  It stands as a reminder to prospective purchasers to consider prior eminent domain takings when evaluating the zoning status of the land they wish to acquire.