In a decision that re-affirms its 2001 ruling in Preston v. Board of Appeals of Hull, the Appeals Court last week held that the grandfathered status of a lawful pre-existing nonconforming lot is not perpetual, and can be lost if the lot later comes into common ownership with adjoining land. In such circumstances, the adjoining lots merge to the extent necessary to eliminate or reduce zoning nonconformities. The decision is Timperio v. Zoning Board of Appeals of Weston.
The unusual twist in Timperio involves a 1997 decision of the Weston Zoning Board of Appeals. In that decision, the Board specifically found that the lot in question (Lot 7) retained its status as a pre-existing nonconforming lot. The Board concluded that Lot 7 was grandfathered because it was separately owned in 1954, when zoning changes first caused it to become nonconforming. The plaintiff landowner argued that, as a result of the Board’s 1997 decision, which had not been appealed, Lot 7 was forever immune from merger. The Appeals Court rejected this argument, noting that, after the 1997 decision, the town enacted new frontage requirements that were not met by Lot 7. As of the date of those new requirements, Lot 7 was owned in common with two adjoining lots. Accordingly, under the merger doctrine (as described in Preston), Lot 7 lost its grandfathered status and merged with the adjoining lots.