Thursday, April 25, 2013

IF A TREE IS GROWING THROUGH THE MIDDLE OF YOUR ROOF, IT MAY BE ABANDONED.


The Carver, Massachusetts Zoning By-law says “A nonconforming use or structure which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of this zoning by-law.” In the recent Land Court decision in Gomes v. Collins, Gomes owned a non conforming structure in Carver and the buyer wished to raze the structure and construct a new one. The buyer was denied a building permit on the grounds that the building was not a protected lawfully pre-existing non-conforming structure. Judge Grossman found that the building has lost it non-conforming status whereas it had not been used for over 46 years and:  “In point of fact, the structure lacks those basic elements that would permit one to characterize it as a residential structure. It is, at best, a modestly sized, deteriorating shell with a tree growing up through the roof and through the lone front dormer. The front portion of that roof and the dormer, which are readily visible in at least two of the photographic exhibits, are in a state of near collapse appearing to be held up by the tree, thereby leaving the structure entirely open to the elements. The windows and doors are gone, having been boarded up. The photographic exhibits indicate that the plastered ceilings are largely gone; the wall studs are plainly visible as well. Moreover, the structure is devoid of those critical elements that one would ordinarily associate with a residence or single family dwelling. In this regard, the photographs disclose the that there are no kitchen or sanitary facilities, no sleeping accommodations, no plumbing or electrical service” Gomes v. Collins, 11 MISC 446909 HMG, 2013 WL 485206 (Mass. Land Ct. Feb. 7, 2013)

This case took 3 years to reach this conclusion.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.


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