Landowners and developers may find themselves in the unique situation of developing a lot split between two different zoning districts or even two municipalities. The Massachusetts Appeals Court has recently affirmed that the less restrictive portion of a lot split by two zoning districts may passively utilize the more restrictive portion to satisfy the dimensional requirements of the zoning bylaw. Where a lot is subject to two differing zoning schemes, landowners may be wary to purchase such lots out of fear that development will be more limited. The recent decision in Pinecroft Development, Inc. v. Zoning Board of Appeals of West Boylston, 101 Mass. App. Ct. 122 (2022), should allay landowners’ hesitations of developing “split lots,” as the Appeals Court found that a lot’s viability should be revered, and that the provisions of the bylaw governing split lots should be read favorably to promote buildability where possible.

If you own a lot divided between zoning districts, and need assistance assessing the development potential of such a lot, please do not hesitate to contact us.

In Pinecroft, the developer applied to the Town of West Boylston Zoning Board of Appeals for a building permit to construct a four-unit dwelling on a lot that was split between a business zoning district and a single residence zoning district. The business zoning district permitted multi-unit dwellings, among other business-related uses, and was considered the less restrictive portion of the lot. The single residence zoning district did not permit multi-unit dwellings and was considered the more restrictive portion of the lot. It is well understood that developers dealing with lots split by zoning districts may only construct the principal use within the portion of the split lot allowing such use. In this case, the developer intended on constructing the multi-dwelling unit within the portion of the lot zoned for business i.e. the less restrictive portion of the lot. It is also well understood that the more restrictive portion of the lot is to remain vacant and may only be used abstractly to satisfy dimensional requirements of the zoning bylaw such as lot size and frontage.

The West Boylston zoning bylaw required the total lot area hosting a multi-unit dwelling within the business district to be equal to 10,000 square feet per unit. Accordingly, for the developer to receive a building permit, the lot needed to have a total area of 40,000 square feet (10,000 sq. ft. x 4 units). Although, the developer’s lot was greater than 40,000 square feet in area, the town denied the developer’s application for a building permit reasoning that the developer could not make use of any part of the lot zoned single residence to satisfy the lot area requirements. Ultimately, the Appeals Court concluded that the town unreasonably interpreted its bylaw, and a building permit should issue to the developer.

In coming to that conclusion, the Appeals Court laid out and explained several well-established rules relating to split lots:

(1) A split lot can only be subject to one zoning district’s zoning requirements. Once a developer chooses what the principal use of the lot will be, the principal use will dictate which zoning district’s zoning requirements will apply. In Pinecroft, where the primary use of the lot was intended as a multi-unit dwelling, the multi-unit dwelling would be subject to the business zoning district requirements. The 40,000 square foot lot area requirement was a dimensional requirement for multi-unit dwellings within the business zoning district.

(2) Once the developer has designated a primary use for the lot, the primary use can only be built within the portion of the lot that permits that particular use. Therefore, in Pincecroft, the four-unit dwelling was required to be built within the portion of the lot zoned business and could not be built on any portion of the lot zoned single residence.

(3) A developer cannot make use of the more restrictive portion of the lot (i.e. the portion of the lot not hosting the primary use) “actively” in ways which would support or further the primary use. By way of example, the portion of the lot zoned single residence in Pinecroft, could not be the site of any accessory structure which would support or benefit the four-unit dwelling. For example, the single residence zone could not contain parking facilities for use in connection with the four-unit dwelling. The reasoning behind this rule is that a town’s zoning bylaw should be strictly enforced to encourage only the permissible uses allowed within each zoning district.

(4) Where the primary use of the lot is conducted within the less restrictive portion of the lot, the developer can use the more restrictive portion of the lot in an abstract way to simply satisfy dimensional requirements under the zoning bylaw, such as frontage requirements, lot area, density, etc.

(5) A town may displace any of the well-recognized rules enumerated above by creating its own bylaw provisions regarding split lots. The bylaw will control in those circumstances.

In Pinecroft, the West Boylston Zoning Board opted to regulate split lots within its borders by including within its own bylaw a provision regarding split lots. Section 2.4., titled “Lots in Two Districts,” provides as follows:

“Where a district boundary line divided a lot in a single or joint ownership at the time such line is adopted, the regulations for the less restricted portion of such lot shall extend not more than thirty feet into the more restricted portion, provided the lot has a frontage on a street in the less restricted district.”

Section 2.4 provided relief to landowners whose lots were later divided by a district boundary line by allowing the less restrictive use regulations to extend for an additional thirty feet into the more restrictive portion of the lot.

In ruling on the developer’s application for the building permit, the West Boylston Zoning Board of Appeals unreasonably interpreted Section 2.4 of the zoning bylaw:

“[T]he board construed section 2.4 of the bylaw to prohibit owners of preexisting split lots from making any use of land more than thirty feet into the more restrictive portions of their lots – regardless of whether that use is active or abstract – to support a use permitted in the less restrictive portion of their lots.”

The Board construed Section 2.4 to mean that the developer could not make any use (active or passive) of the lot more than thirty feet beyond the boundary line. Under the board’s interpretation of Section 2.4, the developer would be prohibited from passively using the land beyond the thirty-foot marker (and in the single residence district) to satisfy the 40,000 square foot lot area requirement. In determining that the developer would not be able to satisfy the 40,000 square foot requirement, the board denied the developer’s building permit application.

On appeal, the Appeals Court determined that the board acted unreasonably in its interpretation of Section 2.4. The Appeals Court found that even where the town had drafted its own provisions to regulate split lots, the town’s provisions should be construed in a manner that coincide with the well-established rules and case law regarding split lots. Where the well-established rules and case law permit the more restrictive portion of the lot to be used abstractly to satisfy dimensional requirements, and promote the buildability and development of lots, as evidenced by Section 2.4’s thirty-foot safe harbor provision for pre-existing lots, the Court held that Section 2.4 should not have been interpreted to prohibit developers from making passive uses of those portions of the lot extending beyond thirty feet from the boundary line. The Court upheld its longstanding proposition that the less restrictive portion of a lot split by two zoning districts may passively utilize the more restrictive portion to satisfy the dimensional requirements of the zoning bylaw. Therefore, the developer could use the portion of the lot zoned for single residence to satisfy the 40,000 square foot requirement of the zoning bylaw. If you own a lot divided between zoning districts, and need assistance assessing the development potential of such a lot, please do not hesitate to contact us.