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When Local Zoning Laws Conflict with FEMA Regulations

Zoning laws can be confusing to homeowners in terms of what kinds of permits and procedures need to be followed to pursue a home remodeling project. Different codes and permits may apply, depending on the structure’s size and location.gull-1126414-m[1]

It is especially complicated where the existing lot and structure are nonconforming to start with, and the homeowners have to bring some or all of the nonconforming elements of their property into conformity with current zoning laws.

Now add to the mix Federal Emergency Management Agency (FEMA) building requirements for properties located in a “velocity zone,” which may require pilings with an elevation above the 100-year flood elevation.

A couple discovered all of this when they bought an old house and applied for permits to demolish it and replace it with a new house. The property contained a single-family home built in 1929, located within a residential R-40 district and in a coastal conservancy district. The old structure is 19.2 feet above grade and contains 2,161 square feet of living space. The property is nonconforming as to lot size and building coverage, and it has other nonconformities, including frontage and front and side yard setbacks.

They applied to the Chatham zoning board of appeals for a special permit to raze the 1929 house and replace it with a new home, with an additional 529 square feet of living space, in basically the same footprint as the old structure. They would achieve this by raising the height of the new structure to 27.2 feet above grade, exceeding the allowable height of 20 feet in the coastal conservancy district. Part of the reason for the height increase was to satisfy the FEMA requirements.

The Chatham board of zoning appeals granted the special permit.

A group of nearby landowners, mostly concerned about the height of the new structure and its effect on their ocean views, filed a complaint with the Land Court appealing the board’s decision.

A judge of the Land Court concluded that the plaintiffs lacked standing to challenge the special permit. Some of the original plaintiffs had died, but their children were permitted to take their place. The plaintiffs filed a motion for reconsideration on the special permit, and the Land Court reversed its earlier decision, finding instead that the new structure created a new nonconformity, namely its height, and required a variance, rather than a special permit.

The Land Court rejected the homeowners’ argument that section IV.A.3 of the Chatham bylaws permitted them to exceed the maximum allowable height restriction. They claimed an exemption from this restriction because FEMA regulations required the additional height. Under section IV.A.3, if the new structure was not an “expansion” within the meaning of section IV.A.3, it would qualify for the exemption from the height restriction. The question became whether the zoning board had explicitly found the homeowners’ proposed new structure not to be an “expansion.”

The Appeals Court of Massachusetts concluded that the board’s decision was not clear as to whether it had found the proposed new structure to be an expansion under the bylaw, that the board had the discretion to interpret its own zoning bylaws, and that the Appeals Court would respect the local authority’s interpretation of local zoning regulations.

The Appeals Court remanded the matter to the Chatham zoning board to decide whether the homeowners’ proposed new structure was not an expansion and was therefore exempt from the height limitations of the Chatham bylaws.

At Pulgini & Norton, we are familiar with zoning and regulations–local, state, and national. As experienced Massachusetts real estate attorneys, we can help you with all of your real estate legal needs. If you have a home remodeling project that may require a special permit or zoning variance, give us a call today at 781-843-2200 or contact our office online, and we can help legally clear the way for you.

More Posts:

Living off the Grid and Real Estate Law, Massachusetts Real Estate Lawyer Blog, May 14, 2014

How a Real Estate Lawyer Can Help You With Zoning Restrictions, Massachusetts Real Estate Lawyer Blog, April 9, 2014

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