In a recent case, the Appeals Court of Massachusetts decided the issue of whether a plaintiff could raze an existing detached garage on his property and construct a dwelling in its place in accordance with local zoning by-laws. In Cain v. Bd. of Appeals of Wilmington (Mass. App. Ct. Mar. 25, 2016), the plaintiff purchased the property at issue in 2013 from a prior owner that had owned the property for several decades. The prior owner had applied for a permit to build the garage in 1984, which was subsequently approved and constructed. Shortly after purchasing the property, the plaintiff applied for a zoning determination that the property qualified as a non-conforming, pre-existing grandfathered buildable lot under § 5.3.2 of the local by-law, which would entitle him to a building permit. It was denied, and the plaintiff appealed.
In Cain, the property at issue conformed to the requirements for a buildable lot under 1934 zoning regulations. However, a 1955 amendment increased the square footage requirements, rendering the property deficient in lot size and frontage to build on presently. The plaintiff’s primary argument in support of his case was that his property was grandfathered into the 1934 regulations.
Grandfathering is a land use concept that preserves the right to build on property that does not conform to current zoning requirements. While Massachusetts statute G .L. c. 40A, § 6 provides for minimum grandfather protections under local zoning by-laws, a municipality is free to adopt a grandfathering provision that is more liberal than G .L. c. 40A, § 6, provided it does so with clear language. Local by-law § 5.3.2 allows a dwelling to be erected on a plot recorded prior to 1955 that conforms with the lot area and frontage requirements of the 1934 zoning by-law, with no reference to adjoining lots in common ownership.
Despite the fact that the local by-law expressly overrides the common law doctrine of merger codified in G .L. c. 40A, § 6, the appeals court concluded that it applies only to original construction and not to reconstruction. The court cited Dial Away Co. v. Zoning Bd. of Appeals of Auburn, 41 Mass. App. Ct. 165 (1996) as controlling law, under which by-laws treat nonconforming lots and nonconforming structures differently. The court found that § 5.3.2 of the local by-law, which provides that certain pre-existing lots may be buildable even though they do not conform to current dimensional requirements, applies only to vacant land. Therefore, the grandfathering protection was exhausted in 1984 when a detached garage was constructed on the vacant lot. The court went on to explain that such provisions are meant more generally to eliminate nonconforming uses.
If you want to make a change to your property, you may need to seek legal guidance on whether the change requires a permit or variance from the local zoning board. At the Massachusetts firm of Pulgini & Norton, our real estate attorneys are experienced in advising individuals in a diverse range of property issues, 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 Superior Court Decides Issue of Jurisdiction in Major Development Permit Appeals, Massachusetts Real Estate Lawyer Blog, published March 28, 2016