Massachusetts Property Owner Seeks Permit to Rebuild Non-Conforming Cottage Destroyed by Tornado

In general, new homes must be constructed pursuant to the current requirements of local Massachusetts real estate zoning bylaws.  Under some circumstances, however, the zoning bylaw may provide for an exception, such as for existing structures.  In an October 7, 2019 opinion, the Appeals Court of Massachusetts considered whether a cottage that had been destroyed by a tornado could be reconstructed under a local bylaw provision for existing structures.

The plaintiff and the defendant in the case were two of the five family members who owned a parcel of land.  The property had contained a non-conforming, 800 square foot seasonal cottage built in 1939 by the previous owners.  In June 2011, the cottage was destroyed by a tornado that ripped through the area.  A dispute arose between the plaintiff, who wished to rebuild the cottage, and the defendant, who wished to maintain the property as open land for private conservation and recreational purposes.

The plaintiff nevertheless contacted the local building commissioner to inquire about a building permit for a new single-family residence.  The building commissioner agreed to allow the residence pursuant to an exception for existing structures under the local bylaw.  The decisions issued by the zoning board and Land Court were appealed and the matter subsequently came before the Appeals Court of Massachusetts.

The bylaw at issue allowed for the reconstruction of a non-conforming single-family residence by building permit when the existing structure has insufficient frontage, but complies with all current setback, building coverage, and building height requirements, and the proposed structure will also comply with all current setback, building coverage and building height requirements.  The question for the court was whether the cottage qualified as an existing structure under the bylaw, despite the fact that it was no longer standing.

The appeals court found that the bylaw did not narrow the meaning of “existing” to only structures that presently exist.  Instead, the court reasoned that the bylaw should be construed as encompassing both non-conforming structures that presently exist, as well as structures that once existed at a particular point in time.  More specifically, this includes structures that were already in place when a bylaw was adopted with which the structures did not comply.  The court went on to explain that this interpretation avoided unreasonable results and was in harmony with other provisions of the bylaw.  The appeals court therefore affirmed that the cottage met the requirements of the exception under the bylaw.

The court noted, however, that the Land Court did not address the defendant’s alternative argument concerning abandonment.  The defendant asserted that the owners had abandoned the non-conforming structure as a matter of law when they made no effort to reconstruct it for nearly five years after it was destroyed by tornado.  The appeals court therefore remanded the matter back to Land Court for further proceedings.

The Massachusetts real estate attorneys at Pulgini & Norton can provide legal guidance to help you further your residential property goals.  We represent individuals in home buying and selling transactions, mortgage re-financing, permit and variance applications, property tax liens, and more.  If you need advice regarding a residential real estate matter, request a free consultation with one of our lawyers by calling (781) 843-2200 or contacting Pulgini & Norton online.

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