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Weekly UpdatesThe Appeals Court of Massachusetts ruled that a landowner was not entitled to include the portion of his property located in a right-of-way when calculating lot area for purposes of zoning requirements.
James Sears owns a 4,800-square-foot parcel in the town of Marshfield on which he sought to build a residence. The building inspector denied his permit application, finding that the lot failed to meet the 5000 square-foot minimum area permitted under the zoning ordinance.
Sears appealed, arguing that under the derelict fee statute, his parcel had a total area of 5,700 square feet. Under the Massachusetts derelict fee statute, the title to parcels abutting public or private rights-of-way extends to the middle of the thoroughfare. Sears included the square footage of his interest in the abutting private road in arriving at a total area of 5,700 square feet. The zoning board of appeals and the trial court upheld the building inspector's decision. Sears appealed.
On review, the appellate court held that Sears could not overcome zoning requirements by operation of the derelict fee statute. The court noted that the purpose of the statute is to quiet title to land beneath property upon which no construction can occur, such as roads and waterways. The derelict fee statute therefore does not confer any building rights and cannot be construed as a grant of additional lot area for building purposes, according to the court.
The court found that adopting Sears's interpretation of the statute would undermine the town's power to designate buildable lots, a basic purpose of the zoning scheme. The court thus concluded that the town was not required to include land covered by the derelict fee statute in calculating lot areas for zoning purposes. The trial court decision was affirmed.
Sears v. Building Inspector of Marshfield
Appeals Court of Massachusetts
February 6, 2009
2009 WL 264150 (Mass. App. Ct. 2009)
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