Land use and zoning laws regulate how people and businesses can use and build upon their property. Property owners are not completely restricted, however, and may seek approval from the local government of plans that do not conform with the laws. In a June 22, 2017 case, the Massachusetts Land Court determined whether a special permit was properly granted to the defendants by a zoning board. The defendants in the case sought to demolish a pre-existing, non-conforming dwelling and build a new house on their property. After the zoning board approved the plan, the plaintiff challenged the decision by filing an appeal.
In 2014, the plaintiff had sold the lot to the defendants, which was located next door and downhill from the plaintiff’s property. The defendants sought to raze the small one-story house on the lot and construct a much larger and taller two-story house. The plaintiff contended that the view from her property would be diminished and result in a loss of privacy, due to the second-story windows planned for the defendants’ new house. The plaintiff also presented witness testimony that the value of her property would decrease.
After finding that the plaintiff had standing to challenge the zoning board decision, the land court addressed the merits of the appeal. The bylaw at issue provided that non-conforming single-family residential structures, as here, may be altered if: (1) the alteration will not increase the non-conforming nature of the structure; or (2) the alteration will increase the non-conforming nature of the structure, but the zoning board determines that the alteration is not substantially more detrimental to the neighborhood than the existing structure and issues a special permit.
Since the defendants’ proposed house was greater in volume than the existing structure, the alteration increased the non-conforming nature of the structure. Accordingly, the project required a special permit premised upon the determination that the alteration is not substantially more detrimental to the neighborhood than the existing non-conforming structure. The land court observed that the vertical expansion of the proposed house would remain conforming, but the horizontal footprint would increase its non-conformity by approximately six percent. However, the court found that expansion to be relatively modest, and it also noted that it was largely confined to an area of the defendants’ property where the house conformed to the relevant dimensional requirements of the bylaw at issue.
The court also concluded that the proposed house would not be substantially more detrimental to the neighborhood than the existing non-conforming structure. In particular, the court noted that it would not be out of place in terms of its size, bulk, or design, and it met the objective of the bylaw to provide a moderate density residential environment. Furthermore, there was no reliable evidence that the proposal would cause harm to the adequacy of roads, drainage, and other public services. In upholding the special permit, the court found that scenic views from public ways and developed properties had been given appropriate consideration, and a slight diminishment of the plaintiff’s views did not warrant a reversal.
The skilled real estate attorneys at Pulgini & Norton can provide trusted legal advice to Massachusetts residents and other individuals regarding their residential property matters. We can represent people in zoning and land use disputes, title actions, mortgages and refinancing, and many other real estate issues. To make an appointment with one of our knowledgeable lawyers, contact us online or call (781) 843-2200.
More Blog Posts:
Massachusetts Land Court Finds No Right of Way to Access Landlocked Parcel, Massachusetts Real Estate Lawyer Blog, published April 25, 2016
Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016