Massachusetts Appeals Court Holds Abandoned Use Prevents Issuance of Building Permit

In a recent case, the Appeals Court of Massachusetts reviewed a decision by the Land Court involving a permit to rebuild a nonconforming residential structure that was destroyed by a hurricane years before. In Chiaraluce v. Zoning Bd. of Appeals of Wareham, 48 N.E.3d 475 (Mass. App. 2016), the property owner applied for a building permit in accordance with local zoning by-laws, which was denied, but he was granted a special permit. The adjacent property owners appealed the grant of a special permit, and the Land Court found in their favor. The property owner subsequently appealed to the Appeals Court of Massachusetts.

In Chiaraluce, the facts of the case go back decades. The residential home on the subject property was severely damaged by a hurricane in 1991 and torn down. As a result of the widespread destruction caused by the hurricane, the town had granted a blanket special permit for the reconstruction of residences damaged by the hurricane. The original owners obtained such a permit but did not rebuild on the property. Instead, they sold the land to the plaintiff, a neighboring landowner, in 1993. The plaintiff testified that at the time it was purchased, his plan was to use the lot for overflow parking. In 2001, the plaintiff first sought a permit to rebuild, which was denied by the inspector. In 2010, the plaintiff obtained a building permit for another structure, which was ultimately granted by the zoning board but appealed to the Land Court. The Land Court found that the plaintiff had abandoned the residential structure and ruled that no building permit could be issued. The plaintiff brought the current appeal before the Appeals Court of Massachusetts.

Pursuant to Massachusetts law, municipalities are authorized, but not required, to define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more. The local town opted to regulate only uses abandoned or not used for a period of two years or more. Generally, abandonment requires the intent to abandon and voluntary conduct, whether affirmative or negative, that carries the implication of abandonment.  However, where the lapse of time following a demolition is so significant that abandonment exists as matter of law, the evidence provides an implication of abandonment and supports a finding of intent, regardless of the state of mind of the property owner. The person seeking a permit has the burden of proof as it relates to a possible abandonment.

On appeal, the court affirmed the ruling of the Land Court, noting that the fact-specific inquiry heavily relied upon witness testimony and credibility. The court concluded that the availability of the unused special permit, the lengthy period of time during which no rebuilding occurred, and the initial intent of the plaintiff to use the land for overflow parking, supported the Land Court’s finding that the right to reconstruct a building on the subject property had been abandoned as a matter of law.

If you want to make a change to your property or build upon the land, you may need to seek a permit or variance from your local zoning board. At the Massachusetts firm of Pulgini & Norton, our real estate attorneys are experienced in advising and representing property owners in a wide range of property matters, including 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 Court Concludes Grandfathering By-Law Only Available to Vacant Lots, Massachusetts Real Estate Lawyer Blog, published April 4, 2016

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