In Preston v. Duffy, 51 Mass.App.Ct. 236 (201), held that a "grandfathered" lot would lose its protection if adjacent property which could be used to avoid or diminish the nonconformity was acquired by the common owner. The case of Planning Board of Norwell v. Serena, 406 Mass. 1008, 550 N.E.2d 1390 (1990), supports the Superior Court's ruling in Preston. The decision in Planning Board of Norwell stands for, in the words of the court, the "longstanding" application of the simple rule that "a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity."
The case of Adamowicz v. Town of Ipswich, 395 Mass. 757, 481 N.E.2d 1368 (1985 was cited and discussed by the court in Preston. The lot owner cited it for the proposition that the loss of "grandfathered" protection was limited to those situations where the increased nonconformity resulted by reason of an intervening change in a municipal bylaw. In this regard, their argument was that the mere coming together of two nonconforming lots would not result in the loss of the "grandfathered" protection unless there was also, during such coincidental ownership, a change in a municipal bylaw. In other words, the change in the zoning requirements had to occur while and at the time the two (or more) lots were held in common ownership. But Adamowicz did not involve an owner who owned two lots and wanted to build on one of them, but concerned the status of various individual owners who owned side-by-side undersized lots and wanted to separately construct homes. The case dealt with a bizarre assertion by the town of Ipswich that G.L.c. 40A, §6, in providing that the exemption applied only if any lot "at the time of the recording or endorsement, whichever occurs sooner, was not held in common ownership with any adjoining land," meant that the respective owners' lots would not enjoy the exemption if they had been held in common ownership at any time — including when they were shown together on the original subdivision plan. The Adamowicz court noted that such an interpretation would be "meaningless" because "almost every lot in the Commonwealth was, at one time or another, part of a larger parcel of land that was later subdivided as shown on a recorded plan or recorded deed."
In Preston the argument that the loss of grandfathering status required that the lots be held in common ownership at the time of the zoning change (and not simply thereafter) was based on the language of the statute and historical information that surrounded the statute's enactment. The statute provides:
Any increase in area, frontage, width, yard or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.
The plaintiff argued that under the ruling in Sieber v. Zoning Bd. Of Appeals of Wellfleet, 16 Mass.App.Ct. 985, 454 N.E.2d 108 (1983) – which interpreted the statute and held that the phrase "at the time of recording or endorsement" referred to " the most recent instrument of record prior to the effective date of the zoning change from which the exemption is sought" – her property was exempt from the zoning change because (i) at the time of the zoning change the property was held in separate ownership and (ii) the subsequent acquisition of a common owner of the lots would not affect this status. The argument is that a "snapshot" is taken at the time of the zoning change and if that picture reveals that the lots were held in separate ownership the exemption arises, and the exemption is not affected by the ownership of the lots after the "film" is developed.
The Preston court noted that at common law "merger" of lots, thus destroying their nonconforming status and preventing the erection of multiple buildings, was favored, but it also acknowledged that it " confront[ed] the apparent conflict between the preexisting common law principle of merger and the words of G. L. c. 40A, § 6." However, it decided that the doctrine favoring merger would be followed. This result was reached even though a review of the historical facts surrounding the adoption of the statute showed that in the process of various amendments proposed at the time of the adoption of the law language that was in the original drafts and had referred to "[lots] subsequently held in common ownership" had "fallen by the wayside."