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Non-Conforming House Loses Grandfather Status Due to Abandonment Under Local Massachusetts Bylaw

Many of the old homes in Massachusetts were built before the current local zoning bylaws were enacted.  In many situations, the bylaws exempt these homes from a particular regulation by grandfathering them.  In a February 21, 2019 case, the Massachusetts Land Court considered whether a town’s zoning bylaws permanently grandfathered certain uses of a property that existed before the original bylaws were adopted.  The issue would determine whether or not the plaintiffs could build a new two-family dwelling on their lot.

The lot contained an existing two-family house, which had been built in the 1880s.  For many years, and at least since 1950, it had been used as a two-family residence.  In 2010, a fire swept through the house, leaving the building standing but ruining the interior.  Due to the damage, no one had resided in the house for years after the fire, although renovations had sporadically taken place.

The plaintiffs sought to raze the structure and construct a new two-family house.  The property, however, was located in a district zoned for single-family homes only.  While the local zoning bylaw had grandfathered the existing, nonconforming two-family house, in order to build a new non-conforming two-family structure on the property, the plaintiffs needed special approval.

Pursuant to the bylaw, a prior existing nonconforming residential structure, such as the plaintiffs’ two-family house, may only be reconstructed where the proposed plan does not increase the nonconforming nature of the structure.  Another provisions of the bylaw states that, if the nonconforming structure has been abandoned, or not used for a period of two years, it shall lose its protected status and be subject to all of the provisions of the zoning bylaws.

The plaintiffs first pointed to the first sentence of the bylaw, which states: “no provision of this zoning bylaw shall apply to structures or uses lawfully in existence.”  argued that the abandonment bylaw did not apply because the bylaws do not apply to existing nonconforming structures.  They argued that the abandonment bylaw, therefore, did not apply to their two-family house.  The Land Court disagreed, explaining that under Massachusetts state law, municipalities are allowed to provide generous grandfathering provisions, except for properties that are abandoned.  This corresponds with the public policy that supports eventually eliminating nonconformities.

Concluding that the abandonment bylaw applied to the plaintiffs’ house, the Land Court went on to find that, due to the lack of a certificate of occupancy, no one has resided in or used house for two-family purposes since the 2010 fire.  As such, the court ruled that the house had lost its grandfather status to reconstruct a nonconforming, two-family structure.

At Pulgini & Norton, our Massachusetts land use attorneys can guide homeowners through zoning regulations and other legal procedures concerning their property.  We advise individuals in all areas of residential real estate law, including home closings and contracts, building permits, zoning appeals, and mortgage re-financing.  Request a consultation regarding a residential property issue by calling our office at (781) 843-2200 or contacting us online.

More Blog Posts:

Massachusetts Homeowner Brings Action Against Neighbor to Enforce Zoning Law, Massachusetts Real Estate Lawyer Blog, published August 21, 2017

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

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