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Wednesday, October 31, 2018

The alliance article is animate and able-bodied in Massachusetts zoning law.  In its contempo accommodation in Kneer v. Zoning Lath of Appeals of Norfolk, the Appeals Cloister advised whether the article applies to acreage endemic by a acreage assurance area a trustee owns aing acreage individually.  The Appeals Cloister disagreed with the way the Land Cloister activated the doctrine, but remanded the case for added absolute allegation to array out whether the alliance article should apply.

Under the alliance doctrine, a adverse lot that is captivated in accepted buying with an aing lot may be accounted “merged” with the aing lot to the admeasurement all-important to abate or annihilate the nonconformity. Case law recognizes that aing lots can absorb alike if they’re nominally endemic by altered entities. For example, in Planning Lath of Norwell v. Serena, a affiliated couple, attempting to abstain the furnishings of an advancing change to the zoning bylaw, endemic one lot as co-trustees of a acreage assurance of which they were the sole beneficiaries, and an aing lot as tenants by the entirety. The lots were accounted to be in the couple’s accepted control, and accordingly they merged. Similarly, in DiStefano v. Town of Stoughton, the buyer of a 40-lot amplitude of acreage attempted to abstain the aftereffect of a zoning change by accepting his aggregation alteration buying of some of the lots to himself individually, some to his wife, and some to himself as trustee of a acreage trust, in an alternating arrangement (a address accepted as “checkerboarding”). The Appeals Cloister alone this effort, award accepted ascendancy of all the accountable lots.

At affair in Kneer was an abortive lot in the Town of Norfolk (the parcel) that was created in 1945, afore the town’s acceptance of a zoning bylaw. The minimum lot admeasurement claim adopted in 1953 rendered the bindle adverse as to size.

In 2001, Mildred Kneer and her bedmate created the Kneer Family Revocable Assurance as an acreage planning tool. In 2010, afterwards her bedmate died, Kneer adapted the assurance and called herself and her daughter, Deirdre Mead, as co-trustees.

In September 2012 the trust, through its co-trustees Kneer and Mead, bought the parcel. It aed acreage endemic by Mead individually, area Mead lived.

The assurance activated for bounded permits to body a baby home on the parcel. The admittance applications were in the trust’s name and Kneer was the sole attestant on the documents. The town’s architecture ambassador denied the appliance for a architecture admittance on the area (among others) that back Mead and her mother, as co-trustees of the trust, bought the bindle in 2012, it alloyed with the aing lot that Mead endemic in her alone capacity. The town’s zoning lath of appeals upheld that accommodation and the assurance appealed to the Acreage Court. There, a adjudicator affirmed the board’s decision, accordant that the bindle had alloyed with Mead’s alone lot back the assurance acquired the bindle in 2012.

The Acreage Cloister adjudicator advised whether, through her role as co-trustee, Mead affected “legal control” over the bindle back the assurance acquired it. He focused on her ample admiral as co‑trustee, including the ascendancy to booty accomplishments with account to assurance assets after Kneer’s above-mentioned approval. The adjudicator assured that Mead’s trustee ascendancy was acceptable – by itself – to abode the bindle beneath the aforementioned acknowledged ascendancy as the aing acreage that Mead endemic individually.

The Appeals Cloister disagreed, acquainted that the Acreage Cloister judge’s acumen “pass[ed] over the actuality that Mead’s admiral over the bindle necessarily were accountable to her fiduciary obligations.” Mead’s aboriginal assignment was aegis of the assurance estate. For example, as the cloister noted, because Mead’s analysis of the bindle as her own would accept – by operation of alliance – destroyed the adeptness to advance the bindle (and resulted in a accident of the acquirement price), demography such accomplishments would anon battle with her fiduciary duties as co‑trustee.  The Appeals Cloister assured that whether the lath of appeals could appropriately amusement the two accoutrements as actuality beneath Mead’s acknowledged ascendancy could not be bound as a amount of law. There were facts that cut both in favor and adjoin merger. Because the Acreage Cloister adjudicator fabricated allegation based on an incorrect appearance of the law but “still could be actual for a altered reason,” the Appeals Cloister adjourned the case for added proceedings.

Many absolute acreage practitioners accept audience who own aing lots and appetite to assure those lots from the furnishings of approaching zoning changes by preventing appliance of the alliance doctrine. The Kneer decision signals that, accustomed the fiduciary duties owed by advisers to assurance beneficiaries, the assurance anatomy of buying – if acclimated accurately – may be a applicable agency of alienated merger. We’ll adviser this case while it’s on adjourn and address on any added decisions from the Acreage Cloister or the Appeals Court.

©2018 Pierce Atwood LLP. All rights reserved.

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