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LAW OFFICES OF
MANUEL F. BABBITT,ESQ.
ONE CORPORATE PLACE
55 FERNCROFT ROAD-SUITE 201
DANVERS,MASSACHUSETTS 01923
Telephone: 978-907-6016
Fax: 978-907-6099
November 2, 2015
Thomas St. Pierre
Building Commissioner/Zoning Officer
City of Salem
93 Washington Street
Salem, Massachusetts 01970
Re: 14 and 16 Almeda Street,Salem,Massachusetts
Dear Commissioner St. Pierre:
My separate and individual clients, Veronica M. Belleau owner of 14 Almeda Street, Salem,
Massachusetts and George D. Belleau owner of 16 Almeda Street, Salem, Massachusetts have
engaged me to respond to City Solicitor Elizabeth Rennard, Esq. October 7, 2015 Doctrine of
Merger Memorandum.
VERONICA M. BELLEAU'S AND GEORGE D. BELLEAU'S
MEMORANDUM OF LAW IN OPPOSITION TO CITY SOLICITOR
ELIZABETH RENNARD, ESQ. OPINION THAT LOT 14 ALMEDA
STREET AND LOT 16 ALMEDA STREET SHOULD BE MERGED.
THE CITY OF SALEM SHOULD MAKE A DETERMINATION THE
LOTS SHOULD NOT BE MERGED AND THEREFORE REMAIN AS
TWO NONCONFORMING LOTS.
ISSUE
The City of Salem should determine that Lot 14 Almeda Street and Lot 16 Almeda Street should
not be merged and therefore remain as two nonconforming lots.
LEGAL QUESTION
Are the lots known as 14 Almeda Street, Salem, Massachusetts and 16 Almeda Street, Salem,
Massachusetts under common control of George D. Belleau?
FACTS
1. On September 30, 2015 Veronica M. Belleau purchased 14 Almeda Street, Salem,
Massachusetts ("14 Almeda") from A.R.S. Holdings, LLC. A Quitclaim Deed was
recorded at the Essex South Registry of Deeds on September 30, 2015 in Book 33577,
Page 10.
2. Veronica M. Belleau's residential address is 21A Ye Old County Road, Gloucester,
Massachusetts.
3. On September 16, 2015 George D. Belleau purchased 16 Almeda Street, Salem,
Massachusetts ("16 Almeda") from Patricia Berry. A Quitclaim Deed was recorded at
the Essex South Registry of Deeds on September 16, 2015 in Book 33546, Page 134.
4. George D. Belleau's business address is Legacy Development, Inc., 532 Lowell Street,
Peabody, Massachusetts.
5. George D. Belleau and Veronica M. Belleau are husband and wife.
6. George D. Belleau and Veronica M. Belleau reside at 21 A Ye Old County Road,
Gloucester, Massachusetts.
7. Lot 14 Almeda contains 5,819 square feet of land, more or less.
8. Lot 16 Almeda contains 5,119 square feet of land, more or less.
9. Lot 14 Almeda and Lot 16 Almeda are both nonconforming lots.
DOCTRINE OF MERGER
When a zoning ordinance is enacted or amended, Mass G.L. c. 40A, § 6, allows for certain
exceptions to its applicability to existing structures, uses, or lots. Paragraph four of Section 6
contains what is known as the "Separate Lot Exception:"
"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 at the time of recording or endorsement, 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 purpose of Mass G.L. c. 40A, § 6 is to protect a once valid lot from being rendered
unbuildable for certain residential purposes assuming the lot meets modest area and frontage
requirements. Sturges v. Chilmark, 380 Mass. 246 (1980).
The common ownership requirement of Mass G.L. c. 40A, §6 represents a"statutory
codification of a principle of long-standing application in the zoning context: 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." Planning Board of Norwell v. Serena, 406 Mass. 1008
(1990).
When two abutting nonconforming lots are under common ownership, the lots merge for zoning
purposes. Id.
Determining whether or not a lot is in"common ownership"with adjoining land requires a
determination of control. Id.
When a record title is held by different entities but controlled by the same owner, the merger
doctrine requires a finding of common ownership. Id.
The legal standard for merger by common control is whether a person had the power to use the
adjoining land. DiStefano v. Stoughton, 36 Mass. App. Ct. 64Z 645, 634 N.E2d 584 (1994).
ARGUMENT
WHEN TWO ABUTTING NONCONFORMING LOTS ARE UNDER COMMON
OWNERSHIP, THE LOTS MERGE FOR ZONING PURPOSES. DETERMINING
WHETHER OR NOT A LOT IS IN"COMMON OWNERSHIP" WITH ADJOINING
LAND REQUIRES A DETERMINATION OF CONTROL. THE LEGAL STANDARD
FOR MERGER BY COMMON CONTROL IS WHETHER A PERSON HAD THE
POWER TO USE THE ADJOINING LAND.
FACTS: LOT 14 ALMEDA STREET
1. Veronica M. Belleau never had any intention of Lot 14 merging with Lot 16;
2. Lot 14 is owned by Veronica M. Belleau("Veronica")
3. The lot was purchased with the personal funds of Veronica.
4. Veronica has executed a fee based consulting contract with George D. Belleau to obtain
all required federal, state, and local permits for the construction of a single-family
residence on Lot 14;
5. The consulting contract stipulates that during the permitting process all funds disbursed
by George D. Belleau("George") for the benefit of Lot 14 will be reimbursed to George;
6. Veronica shall have complete and sole authority to determine if she will sell Lot 14 as
permitted land or construct a single family residence for sale.
7. Veronica shall have complete and sole authority concerning the construction and
marketing of the home for Lot 14;
8. If Veronica decides to build on Lot 14 she will execute a construction contract with the
general contractor of her choice;
9. As construction progresses Veronica will disburse payments to the general contractor
from her personal or individually borrowed funds; and
10. All profits from the sale of the single-family residence on Lot 14 will be disbursed to
Veronica.
11. George D. Belleau does not exercise any control whatsoever concerning Lot 14.
FACTS: LOT 16 ALMEDA STREET
1. George D. Belleau never had any intention of Lot 16 merging with Lot 14;
2. Lot 16 is owned by George D. Belleau;
3. The lot was purchased with the business funds of George;
4. George has executed a fee based consulting contract with Veronica to obtain all required
federal, state, and local permits for the construction of a single-family residence on Lot
14;
5. The consulting contract stipulates that during the permitting process all funds disbursed
by George for the benefit of Lot 14 will be reimbursed to George;
6. George shall have complete authority concerning the construction and marketing of the
home for Lot 16;
7. George will function as general contractor for Lot 16;
8. George will disburse payments to the subcontractors from his business or individually
borrowed funds; and
9. All profits from the sale of the single-family residence on Lot 16 will be disbursed to
George.
10. Veronica does not exercise any control whatsoever concerning Lot 16.
CONCLUSION
For all the foregoing reasons, the City of Salem should allow Lot 14 Almeda Street and Lot 16
Almeda Street to remain as two separate nonconforming lots. Massachusetts General Laws,
Case Law, and the related facts do not allow the merger of Lot 14 with Lot 16.
Respectively submitted,
Manuel F. Rabbitt, CPA, Esq.
cc. Elizabeth Rennard, Esq., City Solicitor
Lynn Goonin Duncan, AICP, Director, Planning and Community Development
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September 29, 1994
Leo Tremblay
Director of Public Property
City of Salem
One Salem Green
Salem, MA 01970
Dear Leo;
This letter is to inform you that the City of Salem has been
awarded title of ownership to the below listed property by the Land
Court of the Commonwealth.
Property Address Date of Decree Property Description
14 Almeda Street Sept. 6 , 1994 About 5819 square feet
of land.
Based upon MGL Chapter 60, this parcel can be redeemed by any
interested party for a period of one year from the date of decree.
Subsequent to this period, the parcel is available for disposition
by the City through public auction. Should this occur at some
future date, the City is entitled to any sale proceeds. I will
notify the City's insurance carrier to initiate the necessary
liability coverage.
Sincerely,
2a,01,- aA
Robert H. Nagle
Treasurer/Collector
cc: Peter Caron
Robert LeDoux
Michael O'Brien, Corporate Design Ins.
ONE SALEM GREEN • SALEM,MASSACHUSETTS 01970 • 508-745-9595 • FAX 508-744-5918