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Massachusetts Property Owners Seeking Approval to Build House Encounter Frontage Issues

house plansOwners of vacant parcels of land often seek to construct single-family homes on the empty lots.  In most situations, Massachusetts property owners will need to obtain a permit from the local zoning authority to build a new home.  The plaintiffs in a September 27, 2018 case sought approval to build a single-family dwelling on each of the two vacant lots they owned.  The building inspector denied the permits, finding that the two lots lacked legal frontage, and therefore, were not buildable without a variance.  When the building inspector’s decision was upheld by the local zoning board, the plaintiffs appealed to the Massachusetts Land Court.

The lots owned by the plaintiffs were bordered by roads on their east and west property lines.  Under the local bylaw, a house lot must have at least 150 feet of frontage to a qualified way between its side boundary lines.  The primary issue in the case was whether one of the roads bordering the plaintiffs’ lots qualified as a way that would allow them to satisfy the frontage requirement for a lot with a house.

Massachusetts law defines a way that qualifies for frontage as: (1) a public way or a way that is maintained and used as a public way; (2) a way shown on an approved plan in accordance with the subdivision control law; or (3) a way in existence before the subdivision control law became effective, which provides for the traffic needs of the abutting land and for the installation of municipal services to serve the land.

On appeal, the plaintiffs asserted that the road in dispute qualified for frontage, arguing that it was a public way.  A way becomes public in one of three ways: (1) a laying out by public authority in accordance with the statute, (2) prescription; and (3) prior to 1846, a dedication by the owner to public use and the acceptance of the public.

The plaintiffs contended that the road was made public through a laying out at a May 14, 1772 town meeting, and that members of the public occasionally use the road as well.  The land court, however, was not persuaded that the location of the road at issue was within the layout of the way created in 1772.  The court further explained that evidence of some public use, alone, is not sufficient to prove that the road is a public way.

The court went on to find that the road at issue did not qualify for frontage through the other two means, as the road was not shown on an approved plan, nor could it provide access for municipal services to be installed.  Accordingly, the land court ruled that without sufficient frontage to qualified roads, the plaintiffs’ lots were not buildable.

Homeowners and other individuals can seek legal advice from skilled Massachusetts real estate attorneys at Pulgini & Norton.  We have assisted many people with residential property matters, including purchase and sale transactions, building permit applications, mortgage financing, and more.  To request a free consultation with an experienced attorney, call our office at (781) 843-2200 or submit our website contact form.

More Blog Posts:

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

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

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