Posts tagged "Koines"

Koines, et al. v. Zoning Board of Appeals of Cohasset, et al. (Lawyers Weekly No. 11-014-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;   16-P-678                                        Appeals Court   ALEXANDER C. KOINES & another[1]  vs.  ZONING BOARD OF APPEALS OF COHASSET & others.[2]       No. 16-P-678.     February 21, 2017.     Zoning, Nonconforming use or structure, Lot size, Exemption, Judicial review.  Real Property, Merger.     The plaintiffs appeal from a judgment of the Land Court that affirmed a decision of the defendant zoning board of appeals of Cohasset (board) based on a conclusion that the board correctly interpreted the Cohasset zoning by-law to afford grandfather protection to a lot owned by the defendants John and Martha Shaw.  We affirm.   At issue in the case is section 8.3.2(c) of the by-law, the language of which is set out in the margin.[3]  The Shaws’ lot, containing approximately 21,850 square feet, is located in an R-C district in which the minimum lot size is 60,000 square feet.  The current minimum lot size results from an increase enacted by amendment to the by-law in 1985, at a time when the Shaws’ lot was held in common ownership with several parcels of adjacent land.  The lot accordingly plainly meets the literal linguistic requirements of the second portion of section 8.3.2(c) as applicable to lots in the R-C district.   The plaintiffs nonetheless contend that the board erroneously interpreted the by-law to afford grandfather protection to the lot by virtue of the common law doctrine of merger.  Under that doctrine, a lot held in separate ownership at the time an increase in area renders it nonconforming and thereby entitled to grandfather protection under the fourth paragraph of G. L. c. 40A, § 6, loses grandfather protection if it thereafter comes into common ownership with adjoining land.  See Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 243 (2001).  As the plaintiffs observe, this court reached its conclusion in Preston despite the fact that the lot at issue met the literal linguistic requirements set forth in the statute, resting its conclusion on the fact that the Legislature, though presumptively aware of the preexisting and well-established merger doctrine at the time it enacted § 6, did not evince a clear intent to alter the common law.  See id. at 240, 243.   The present case stands differently since we are presented with an enactment of the Cohasset town meeting, construed by the local zoning board of appeals […]


Posted by Massachusetts Legal Resources - February 21, 2017 at 8:12 pm

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