Trustee of Realty Trust Saved from Application of Merger Doctrine (at least for now)
The merger doctrine is alive and well in Massachusetts zoning law. In its recent decision in Kneer v. Zoning Board of Appeals of Norfolk, the Appeals Court examined whether the doctrine applies to property owned by a realty trust where a trustee owns abutting property individually. The Appeals Court disagreed with the way the Land Court applied the doctrine, but remanded the case for additional factual findings to sort out whether the merger doctrine should apply.
Under the merger doctrine, a nonconforming lot that is held in common ownership with an adjoining lot may be deemed “merged” with the adjoining lot to the extent necessary to reduce or eliminate the nonconformity. Case law recognizes that adjoining lots can merge even if they’re nominally owned by different entities. For example, in Planning Board of Norwell v. Serena, a married couple, attempting to avoid the effects of an anticipated change to the zoning bylaw, owned one lot as co-trustees of