MILDRED J. KNEER, trustee, 
ZONING BOARD OF APPEALS OF NORFOLK & another. 
Heard: March 7, 2018.
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.
K. McCay for the intervener.
Present: Milkey, Blake, & Desmond, JJ.
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.
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.
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).
The adoption of the town zoning by-law.
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.
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.
The Kneer family's ties to the Hunter Avenue
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
The formation of the trust.
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
The original acquisition of the parcel.
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, ...