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Massachusetts Court Accepts Alternative Plan to Avoid Tearing Down a Home that Violates Zoning Bylaws

Resolving zoning violations may require compromise in unusual situations.  In a November 9, 2018 Massachusetts real estate case, the Land Court was tasked with deciding the fate of a house that was constructed in violation of the local zoning bylaws.  The plaintiff in the case owned a single family residence across the street from the house at issue.  The house had been constructed despite the plaintiff’s objections, which were timely filed.  The defendants, with full knowledge of the pending litigation, purchased and moved into the house with their children.

It was undisputed that neither the building permit for construction of the house, nor the subsequent certificate of occupancy, should have been granted.  The lot on which the house was built did not meet the depth requirement, as it was more than fifty feet short of the 125 feet demanded by law.  As such, the defendants applied for a variance, which was granted by the local zoning board.  The lot, however, did not meet the criteria for such a variance.  The plaintiff subsequently challenged the variance, and a trial was required to determine whether the plaintiff had standing to do so.

Standing requires the plaintiff to show that he has or will suffer an injury related to an interest that is protected by the applicable zoning law, and which is special and different from the general concerns of the larger community.  The Land Court ruled that the plaintiff did have standing to challenge the variance, but only from a single impact.  Namely, the headlights shining in the windows of his home at night from cars exiting the defendants’ driveway.

Insofar as the plaintiff had standing to challenge the variance, it was subject to being invalidated.  Even so, the court explained, not every zoning violation warrants a tear-down, and there is some discretion to grant an equitable alternative.  The Land Court remanded the matter to the local zoning board to consider whether there was an alternative.  The board concluded that a plan to relocate the defendants’ driveway, plant additional landscaping, and construct a fenced barrier would eliminate the headlight intrusion into the plaintiff’s home.  It voted in favor of the plan as an alternative and reasonable solution to the harm suffered by the plaintiff.  The plaintiff appealed that decision and the matter once again came before the Land Court.

On appeal, the court analyzed the equitable factors to determine an appropriate alternative remedy to tearing down the defendants’ home.  These factors included whether a tear-down would cause substantial hardship, whether the defendants reasonably relied on the actions taken by town officials, whether there is an injury to a public interest if the house remains, whether the parties acted in good faith, and whether there is an appropriate alternative remedy to a tear-down.  Finding that the harm to the plaintiff would be eliminated with the relocated driveway and other barriers, the court ordered implementation of the plan and denied the plaintiff’s request for a tear-down.

Address your residential property issue with assistance from a Massachusetts real estate attorney at Pulgini & Norton.  We have experience handling zoning and permit applications, title actions, mortgage refinancing, and many other residential real estate matters.  Request a free consultation with a property lawyer by calling Pulgini & Norton at (781) 843-2200 or contacting us online.

More Blog Posts:

Massachusetts Property Owners Seek Approval of Plan Through Adequacy Regulations, Massachusetts Real Estate Lawyer Blog, published February 19, 2018

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

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