Published on:

Court of Appeals Upholds Building Permit to Construct Two-Family Dwelling in Massachusetts Zoning Case

Some homeowners impacted by a proposed change to a nearby property may have a way to legally oppose approval of the plan.  In a May 3, 2019 Massachusetts real estate case, the Appeals Court of Massachusetts reviewed the issuance of a building permit to the defendant, a real estate developer.  The plaintiffs filed the appeal after the local zoning board allowed the permit, and the Land Court subsequently upheld that decision.

The defendant in the case owned one lot in a small subdivision that consisted of four other lots with homes.  The plaintiffs resided on the lot abutting the defendant’s property.  After the defendant was issued a building permit to construct a home on the lot, the plaintiffs filed an action in Land Court to challenge the validity of the permit.  The plaintiffs argued that the defendant’s lot did not comply with the rear lot dimensional requirements of the local zoning bylaws.

Under the local bylaws, a rear lot is defined as a parcel of land not fronting or abutting a street, and which has limited access to a street due to the shape of the lot, an easement, or a private right-of-way as shown on the recorded deed or subdivision plan.  For a two-family rear lot in a multi-residence zone created after December of 1953, the bylaws require a minimum lot size of 12,000 square feet, which is subject to a maximum floor area ratio.

Lots created before December of 1953, however, have different density and dimensional requirements.  Under the bylaws, these lots are only required to have a minimum lot area of 7,000 square feet.  Further, the pre-1953 lots are subject to a less restrictive floor area ratio.

The appeals court found that the defendant’s lot was created before 1953.  As such, the defendant’s property, which was just over 11,000 square feet, met the requirements of pre-1953 lots.  The court also determined that the lot had a floor area ratio within the required range.  Accordingly, the court ruled that the permit for the proposed dwelling was properly issued to the defendant.

The court went on to address the fact that they had succeeded on their adverse possession claim against the defendant, although the matter was pending appeal.  Should the plaintiffs ultimately prevail in that adverse possession case, the court noted that it would not affect the outcome of this zoning case.  The court explained that the property adversely possessed by the plaintiffs had not been recorded when the building permit was issued to the defendant, as required under the bylaw.  The court therefore upheld the decisions of the Land Court and zoning board, holding that the permit was valid.

At Pulgini & Norton, our Massachusetts real estate attorneys can assist individuals with zoning issues and many other residential property matters.  If you are seeking experienced legal advice about loan re-financing, a home purchase or sale agreement, title action, tax lien, or residential real estate transaction, we can provide the guidance you need.  Request a free initial consultation by calling Pulgini & Norton at (781) 843-2200 or submitting the contact form on our website.

Contact Information