Massachusetts Property Owners Appeal Denial of Building Permit to Construct Single Family Home

If you are planning to construct a new home on your recently purchased property, a Massachusetts real estate attorney can guide you through the legal process.  Typically, new residential construction is subject to local zoning laws, illustrated in a September 16, 2019 case.

The plaintiffs in the case had reportedly applied for a building permit in 2008 to construct a single-family residence on their land.  The town building commissioner denied that permit and, after exhausting their appeals with the local zoning board and Massachusetts Land Court, the plaintiffs revised their plans.  In 2018, they reapplied for a permit using the revised plans.  When the 2018 permit was denied for a second time, the plaintiffs once again sought review of the decision in the Land Court.

Under the local zoning bylaws, a building or structure in a residential district must be at least 60 feet from the street.  There is an exception, however, if there is a principal building within 500 feet of, and on each side, of the proposed building.  In such cases, the proposed building may extend as far as the neighboring buildings.

In the case, one of the lots immediately abutting the plaintiffs’ property contained a building that was within 500 feet of the plaintiffs’ proposed house.  The other lot abutting the plaintiffs’ property, however, was vacant.  The plaintiffs sought a building permit to construct their house less than 60 feet from the two streets abutting their property.  They argued that the proposed building fell under the exception to the bylaw’s setback requirement.

In denying the plaintiffs’ building permit, the local zoning board reasoned that the plaintiffs could only meet the exception provided under the bylaw if both neighboring lots had a building on it.  Because abutting vacant lot did not contain a principle building, the board ruled that the plaintiffs did not qualify for the exception that would allow them to build closer than 60 feet from the street.  On appeal before the Land Court, the plaintiffs contended that the board’s interpretation was unreasonable, and deprived owners of lots bordered by vacant land from ever benefiting from the exception to the bylaw’s setback requirements.

Ultimately, the Land Court affirmed the interpretation of the zoning board.  The court concluded that the exception provided under the bylaw was framed in terms of distance, i.e., 500 feet of the proposed structure, and that the plaintiffs’ current plans for the house did not meet those requirements.  The court also noted that while it must defer to the local zoning board’s interpretation if it is reasonable, in this case, the court’s interpretation was identical to the board’s.  As such, the Land Court affirmed the zoning board’s decision to deny the building permit.

At Pulgini & Norton, our Massachusetts real estate attorneys can help you address any legal issues concerning your home or residential property.  We assist homeowners and buyers with variance and building permits, local zoning requirements, tax liens, title actions, residential property transfers, and many other real estate matters.  Arrange a free consultation with one of our knowledgeable lawyers by contacting Pulgini & Norton online or calling (781) 843-2200.

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