Massachusetts Landowner Wins Appeal for Building Permit to Construct Residence on Vacant Lot

Building a dwelling on your own property typically requires a special permit or approval from a local zoning board.  That decision can be appealed, as the plaintiffs appealed the denial of their building permit application in a November 2, 2017 Massachusetts zoning case before the Land Court.  The plaintiffs in the case had sought a building permit to construct a residence on a vacant lot. When their application was denied by the building inspector, they appealed to the local zoning board, which affirmed the decision. The plaintiffs then filed the present appeal to the Land Court.

On appeal, the plaintiffs argued that the lot was buildable, since it was created by the division of an existing lot in 1964 and retained its grandfather status under the zoning ordinance in effect at the time of the division. The zoning board asserted that the lot was unbuildable because the 1964 division was not approved pursuant to the Subdivision Control Law, and because the lot merged with another lot when it was placed in common ownership, losing any grandfather protection it had.

The Massachusetts Subdivision Control Law was enacted in 1953 and prohibits the division of land without approval of a plan by a local planning board. The term subdivision under the statute includes a tract of land divided into two or more lots, but it is subject to multiple exceptions, including lots with frontage on a public way. The plaintiff’s lot, which was created by division in 1964, was located on a public way and satisfied the statutory requirements, such that it was not considered a subdivision subject to additional subdivision laws. A division that is not a subdivision within the statute is known as an Approval Not Required or ANR plan, and the division does not require planning board approval.

The zoning board argued that the original property owner was required to submit an ANR plan to the planning board to be endorsed in order to constitute a valid division in 1964, and, since she failed to do so, the division was illegal. The Land Court did not agree, however, explaining that the language of the statute indicated that one is not required to submit an ANR plan to the planning board for an endorsement to divide property not considered a subdivision.  Instead, the statute provides a way for someone to obtain approval of an ANR plan if he or she wishes to record such a plan.

Accordingly, since the splitting of the original lot into two lots, each of which met the minimum frontage required by the ordinance in effect, did not constitute a subdivision, the original owner would have been entitled to receive an endorsed ANR plan from the planning board had she submitted a plan. Notwithstanding this, she was not compelled to submit a plan in order to split the original parcel into two lots. The court, therefore, explained that since the plaintiff’s lot, created by the division, satisfied the 1963 zoning ordinance in effect, it was a conforming, buildable lot. The court went on to find that the lot was also entitled to grandfather protection, since it met the conditions required by law. As a result, the court remanded the matter for the zoning board to approve the issuance of the building permit to the plaintiff for a residence.

Pulgini & Norton is a Massachusetts law firm providing comprehensive legal guidance in all residential real estate matters.  Our property lawyers can help you file permit applications, secure mortgage financing, review real estate contracts, and represent your interests during the home buying process.  To arrange a free consultation, call Pulgini & Norton at (781) 843-2200 or contact us online.

More Blog Posts:

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

Massachusetts Property Owner Opposes Second Story Addition to Neighbor’s Beach House, Massachusetts Real Estate Lawyer Blog, published June 26, 2017

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