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Massachusetts Appeals Court Affirms Issuance of Business Storage Permit

The Appeals Court of Massachusetts recently reviewed a real estate dispute involving a business storage permit issued by the zoning board of appeals. In Fordham v. Butera (Mass. App. Ct. Jan. 27, 2016), the plaintiff sought to set aside business storage permits that allowed the defendants to store a limited number of vehicles as well as snow removal and landscaping equipment in a barn on their property. The parties’ dispute had been the subject of two prior appeals regarding the validity of the business storage permit by-law, which was subsequently upheld by the court. Following a trial on the merits, the Land Court affirmed the zoning board’s amendment to the business storage permit under § V.B.5. The plaintiff appealed that judgment in the present case.pickup-truck-1252158-640x480

In Fordham, the defendants owned a residential lot that shared a common boundary with the plaintiff’s property. In 1995, the defendants obtained a business storage permit authorizing the storage of one truck and trailer inside their barn. In 2003, they filed a request to amend the 1995 permit to allow for nine vehicles and additional equipment, which was granted by the zoning board. After several appeals, the board eventually allowed the expansion in a 2009 amendment to the permit, which was the subject of the present appeal.

On appeal, the plaintiff argued that the business storage use was improper because the Land Court did not make a finding that the expanded use was not substantially more detrimental to the neighborhood than the prior use. However, the appeals court noted that the Land Court specifically entered findings under G.L. c. 40A, § 6, stating that the expansion of the permitted use in the 2009 amendment to the 1995 business storage permit would not be substantially more detrimental to the neighborhood than the prior permitted use.

The plaintiff also claimed that the use was nonconforming because a new variance was required. The relevant bylaw defines a nonconforming use as the use of a building, structure, or land that does not conform to the use regulations for the district in which it is located. The appeals court adopted the findings of the Land Court, which found that the business storage use by the defendants was not nonconforming under the bylaw, since it is expressly permitted in the residential district where it is located. In addition, the court found no need for a new variance under the law, since the record did not support the plaintiff’s claim. Since no new nonconformity had been introduced, the defendants were not required to obtain a variance. Accordingly, the appeals court affirmed the business storage use permit and 2009 amendment as issued to the defendants.

The Massachusetts real estate attorneys at Pulgini & Norton assist clients in a variety of property matters. Our knowledgeable lawyers can provide legal advice regarding land use and zoning issues, easements, mortgages, and other land transactions. To discuss your real estate needs with one of our skilled attorneys, call (781) 843-2200 or contact us online.

More Blog Posts:

Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015

Massachusetts Appeals Court Allows Homeowners to Operate Commercial Horse Farm on Property, Massachusetts Real Estate Lawyer Blog, published October 26, 2015

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