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Massachusetts Homeowners Obtain Approval to Increase Living Space Despite Preexisting Nonconformity

Many homeowners do not realize that making structural changes to a nonconforming house usually involves a legal process for approval.  In a February 8, 2019 Massachusetts zoning  case, the Supreme Judicial Court examined a law that exempts preexisting nonconforming structures from local zoning ordinances and bylaws in some situations when they are extended or altered.

The defendants in the case owned the second floor condominium unit in a two-unit house.  They sought to modify the roof of the house and add a dormer, thereby providing an additional by 677 square feet of living space.  It would also increase the preexisting nonconforming floor ratio area of the house, which presently exceeded the maximum allowed under the local bylaw.  As such, the defendants were required to apply for a special permit from the zoning board.

Many of the defendants’ neighbors, including the plaintiffs, appeared at the public hearing to oppose the permit.  The defendants presented evidence that the majority of the houses on their street already had partial or full third stories and were taller than the defendants’ existing building.  Town officials also noted that the proposed project would make the house appear more consistent, both in height and in design, with the others on the street.

Ultimately, the zoning board unanimously determined that the house was an appropriate location for such a use, structure, or condition, and that the use as proposed would not adversely affect the neighborhood.  Accordingly, the board issued the special permit.

The plaintiffs appealed subsequent decisions until it came before the Supreme Judicial Court.  On appeal, the plaintiffs argued that under the statute, the defendants needed to obtain a variance, in addition to the special permit, in order to make any changes that would increase the preexisting nonconformity.

In Massachusetts, preexisting nonconforming lots and structures are protected by statute.  In construing the meaning of the statute at issue, the court ascertained the intent of the Legislature to give effect to its purpose.  Noting the difficulties and expense associated with obtaining a variance, the court explained that requiring homeowners to obtain both a special permit and variance would defeat the protections intended under the statute.  It would also render it nearly impossible for homeowners to renovate, modernize, or make any substantial improvements to an older home, particularly if those improvements would increase the nonconforming nature of their home.

The court therefore concluded that the statute only requires a finding that the increased nonconformity would not be substantially detrimental to the neighborhood.  No additional variance from the local bylaw is needed.  As such, approval of the defendants’ proposed roof change was affirmed.

The Massachusetts real estate lawyers at Pulgini & Norton can navigate residential homeowners through local zoning laws and help them achieve their goals.  We also assist individuals with mortgage re-financing, title actions, foreclosure proceedings, and many other residential property matters.  Call our office at (781) 843-2200 or submit our contact form online to schedule a free consultation with an experienced attorney.

More Blog Posts:

Massachusetts Homeowners Oppose Adjacent Subdivision Development with Undersized Lots, Massachusetts Real Estate Lawyer Blog, published April 25, 2018

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

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