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Kneer v. Zoning Board of Appeals of Norfolk

Appeals Court of Massachusetts, Suffolk

July 11, 2018

MILDRED J. KNEER, trustee, [1]

          Heard: March 7, 2018.

          Civil action commenced in the Land Court Department on September 11, 2014. The case was heard by Keith C. Long, J.

          William D. Sack for the plaintiff.

          David K. McCay for the intervener.

          Present: Milkey, Blake, & Desmond, JJ.

          MILKEY, J.

         At the center of this case is an undeveloped parcel of land (parcel) in the town of Norfolk (town). Because the parcel measures only 7, 650 square feet, it does not meet the minimum lot size requirement set forth in the town zoning by law. The relevant town officials concluded that the parcel did not enjoy "grandfathered" status, because it was held in common ownership with adjacent lots when the town first adopted a minimum lot size requirement in 1953, and that therefore the lots had to be treated as one under the doctrine of merger. On cross motions for summary judgment, a judge of the Land Court rejected that position, ruling that the parcel was not rendered unbuildable based on its being held in common ownership with adjacent land in 1953.

         Nevertheless, after trial, the judge ruled that the parcel was rendered unbuildable under the doctrine of merger based on a more recent event, namely, the acquisition of the parcel on September 14, 2012, by the Kneer Family Revocable Trust (trust). The sole beneficiary of the trust at that time was, and remains, the Kneer family matriarch, Mildred J. Kneer, who also serves as a cotrustee. As of the date that the trust purchased the parcel, the other cotrustee was Deirdre Mead, one of Kneer's three daughters. As the judge observed, in her capacity as cotrustee, Mead had significant control over the trust's assets, albeit subject to her fiduciary duties to the trust's beneficiary, her mother. When the trust purchased the parcel, Mead herself already owned adjacent property, where she long has lived. The judge ruled that the confluence of Mead's broad authority over the parcel as cotrustee and her ownership of the adjacent property in her own name effectively placed the two properties in common ownership. Based on this, he concluded that the properties must be treated as one for zoning purposes under the doctrine of merger, explaining his ruling in a carefully reasoned memorandum of decision. Kneer appealed. Thomas Murray, an abutter and the intervener, filed a cross appeal. Despite the cogency of the judge's explanation for his ruling, we conclude that he misapplied the relevant legal principles. We therefore vacate the judgment and remand this case for further proceedings.


         The recitation that follows is drawn from the judge's detailed findings of fact, none of which has been shown to be clearly erroneous. We supplement those findings slightly based on the agreed-to documentary evidence and other undisputed background evidence. NPS, LLC v. Minnihan, 451 Mass. 417, 418 (2008).

         1. The adoption of the town zoning by-law.

         The town adopted its first zoning by-law in 1953. That by-law established a minimum lot size of 15, 000 square feet (since increased to 43, 500 square feet, or approximately one acre, at least in the applicable zoning district). At that time, the land in the neighborhood at issue already had been laid out as lots depicted in a Land Court plan that had been filed in the registry of deeds in 1945. Each of the current properties is comprised of two or more of the originally depicted lots. Thus, the parcel itself is made up of original lots 46 and 47, Mead's own land is made up of lots 44 and 45, and Murray's land is made up of lots 6, 12, and 13. At the time the 1953 by-law was adopted, the lots that now comprise the parcel were held in common with other adjacent lots, including lots 48 and 49. The parcel was severed from that common ownership in 1954.

         The 1953 by-law included a grandfathering provision. We reserve for later discussion whether the specific terms of that provision protected the parcel as buildable even though it was held in common ownership with adjacent land when the by-law was adopted.

         2. The Kneer family's ties to the Hunter Avenue neighborhood.

         Although Kneer herself lives elsewhere, all three of her daughters have had significant ties to the town's Hunter Avenue neighborhood. Mead has had the strongest ties; she and her then-husband first purchased property there in 1978, and she has lived at her current property, 11 Hunter Avenue, since 1988.

         3. The formation of the trust.

         Meanwhile, in 2001, Kneer and her husband created the trust as an estate planning tool. The two of them were the trust's sole beneficiaries and cotrustees. They placed various personal assets into the trust, including their bank accounts and investment accounts.

         4. The original acquisition of the parcel.

         The parcel is bordered on the east by 11 Hunter Avenue (owned by Mead) and on the west by 7 Hunter Avenue (owned by Murray). As of 2002, the town had acquired the parcel through a tax taking. Through a public auction, Mead's oldest son, Douglas, acquired title to the parcel on July 15, 2002. However, some nine months later, he transferred title to the person who had provided him with the purchase money, ...

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