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Joint Property Owners Clash Over Building Permit in Massachusetts Real Estate Case

In the real estate market, the zoned use or designation of a parcel of property can significantly affect its monetary value.  In a March 8, 2018 land use case, the property at issue was estimated to be worth $250,000 if it was a buildable lot, but only around $85,000 if the property had to be kept vacant.  After a local zoning board ruled that a single-family home could be built on the lot, the matter was appealed to the Massachusetts Land Court.cabin

The plaintiff in the case jointly owned the property at issue with his siblings and also owned the neighboring parcel of land.  The land court opined that while a decision allowing for a single-family home would typically be desirable to the property owners, the lower value attached to a non-buildable lot would allow the plaintiff to buy out his siblings’ interest in the parcel.  Accordingly, he brought the subsequent appeal.

The primary question for the land court was whether a local by-law allowed for a new residence to be built on the property at issue.  The relevant section of the by-law provided that, with respect to lawful, non-conforming residential structures, certain alterations as identified in the by-law should essentially be issued an automatic permit.  Specifically, in order for a building permit to be issued, there must be a non-conforming single-family structure on the property, the proposed alteration must not constitute a change in use and comply with current setback, building coverage, and height requirements, and the existing structure must be located on a lot that complies with the same requirements or has insufficient frontage.

On appeal, the plaintiff argued that the property did not meet the requirements of the by-law because it did not contain an “existing structure.”  Although there was originally a cottage on the property that complied with the by-law, it had been destroyed in 2011 and did not exist at the time the application was submitted.  The zoning board reasoned that the term “existing structure” must be read in the context of the by-law as a whole, and it concluded that for the purposes of the by-law, the term meant existing at the time of the adoption of the by-law.

Ultimately, the land court sided with the plaintiff”s interpretation and the dictionary meaning of the term, ruling that “existing structure” in the by-law meant one that existed at the time of an application for a building permit under the law.  Since the structure on the property at issue was destroyed in 2011 and did not have an existing structure, a permit could not be automatically granted under that particular section of the by-law.  However, the land court left open the question of whether the lot could be buildable under another provision of the by-laws.

If you have questions regarding the use or value of residential property, the Massachusetts real estate lawyers at Pulgini & Norton can provide guidance.  We have advised people in matters including zoning and land use, mortgages and refinancing, easements, and more.  To schedule a consultation with an experienced attorney, contact Pulgini & Norton online or call (781) 843-2200.

More Blog Posts:

Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit, Massachusetts Real Estate Lawyer Blog, published May 15, 2017

Massachusetts Homeowner Brings Action Against Neighbor to Enforce Zoning Law, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

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