Property owners may apply for special permits allowing them to construct non-conforming buildings or renovations on their land. In some cases, the grant of such a permit may be challenged by abutting neighbors. The Massachusetts Land Court recently reviewed a zoning board decision in an April 6, 2017 appeal. The defendant in the case was granted a special permit to replace an existing single-family house on his property with a much larger two-story house and another freestanding accessory building with a three-car garage. The plaintiffs, who owned abutting property near the defendant, appealed the decision to the land court.
The case was complicated by the fact that there was another single-family house on the defendant’s property. In 1945, a zoning by-law was enacted that made it unlawful to have two dwellings on one residential lot. However, the 1945 by-law also provided that legally pre-existing nonconforming structures and uses could be continued and may be expanded if a special permit is granted. The issue for the land court was whether the two houses, both of which were once part of the same greenhouse, were, in fact, each used as a separate single-family residence prior to 1945. If they were not, the special permit would be invalid.
The land court found that the two existing houses on the defendant’s property were dwellings because they are detached buildings separated from other structures and designed to accommodate a residence for the use of one or more individuals. Accordingly, its use was nonconforming under the 1945 by-law and could be continued only if both of the houses existed lawfully before the zoning by-law was enacted. After reviewing the evidence of record, the land court determined that the second dwelling did not exist until after the enactment of the 1945 zoning by-law. As a result, the land court held that it was not a lawful pre-existing, nonconforming use and may not be continued.
The land court went on to explain that even if the current structures on the defendant’s property were legally pre-existing and nonconforming, his proposed construction project would not qualify for the special permit. The by-law at issue provides that the zoning board may grant a special permit to change, extend, or alter a nonconforming use or structure only if it will not be substantially more detrimental or injurious to the neighborhood than the existing nonconformity. The land court found that the defendant’s proposed construction project went far beyond that, since it involved the demolition of the existing house and the construction of a new, larger house with a new foundation and a second large building. Accordingly, the board’s decision to grant the permit was reversed.
At Pulgini & Norton, our real estate lawyers can assist Massachusetts residents in a wide range of property issues. We have provided legal guidance to individuals who are seeking building permits, purchasing or selling their homes, securing mortgage financing, and handling many other residential property matters. To schedule a consultation with one of our experienced attorneys, call the office of Pulgini & Norton at (781) 843-2200 or contact us online.
More Blog Posts:
Massachusetts Homeowners Win Breach of Contract Claim Against Corporation in Property Dispute, Massachusetts Real Estate Lawyer Blog, published September 5, 2016
Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016