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Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit

The case of Krock v. Nelson, No. 395229 (July 13, 2015), came to the Massachusetts Land Court following a lengthy procedural history beginning in 2009. The court ultimately affirmed the decision of the Zoning Board of Appeals of the Town of Mashpee, which denied the plaintiffs’ application for a zoning variance and special permit.house-1203072-640x360

The plaintiffs’ property is an undersized lot consisting of 5,000 square feet, with less than the minimum lot size, frontage, front yard setback, and side yard setbacks required by the local zoning bylaws. The single-family dwelling located on the property is 975 square feet, with a lot coverage of 19.5%. Although the property is nonconforming, it is grandfathered by law and can be used in its current condition.

The plaintiffs filed an application for a variance to raze the existing building and replace it with a new 2.5-story, 3,000-square foot single-family home, which would result in a lot coverage of 30%. Their proposal, however, would not change the property’s existing non-conformities to comply with the bylaw’s requirements. They also sought a special permit to modify an existing, non-conforming structure, as well as a written determination that the proposed development would not be substantially more detrimental to the neighborhood than the existing structure.

Zoning Variance

Massachusetts law and local bylaws provide that zoning authorities have the power to grant a variance from the terms of a zoning ordinance or bylaw if unique circumstances relating to the soil conditions, shape, or topography of the property exist, or the enforcement of the bylaws would involve substantial hardship to the landowner, and relief may be granted without detriment to the public good and without violating the intent or purpose of the bylaw. Variances are, however, granted sparingly, and the legal standard to obtain one is strictly applied.

In Krock v. Nelson, the plaintiffs did not offer evidence of any unique aspects of the soil conditions, shape, or topography of the property relating to the property, but instead they presented testimony that the lot was smaller than the surrounding properties and prevented expansion. The court held that simply having a small lot with limited area for development is not a sufficient basis for a variance. The plaintiffs also alleged that the tax burden for the property is disproportionately high considering the present structure, and they argued that it constituted a financial hardship. The court disagreed and held that such circumstances alone are not adequate cause for granting a variance.

Special Permit and Written Determination

Under Massachusetts law, special permits may be issued only for uses that are consistent with the general intent and purpose of the zoning bylaws, and they are subject to any specific local bylaws regarding such permits. The court held that, based on the Board’s finding that the proposed development would exceed the zoning requirements and have an adverse impact to the abutting coastal bank as well as surrounding properties with regards to density, overcrowding, and obstructing views, the plan did not conform to the specifically enumerated protections in Bylaw § 174-24(C)(2).

The experienced real estate attorneys at Pulgini & Norton provide legal guidance in a range of Massachusetts property law issues, including land use and zoning matters, easements, and other land transactions. To discuss your real estate needs with an experienced attorney, call (781) 843-2200 or contact us online.

More Blog Posts:

Massachusetts Zoning Laws and Construction Permits, Massachusetts Real Estate Lawyer Blog, published May 14, 2015

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

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