The
law of pre-existing non-conforming lots, building and uses is more complicated
than just saying that something is “grandfathered”. It used to be fairly simple
to prove that a building
Usually
to prove that a lot is a lawfully pre-existing non-conforming vacant lot, it
has become customary to have a title examination performed of all the
surrounding land and provide a certification and back up documentation to the
building commissioner in support of a request for a determination that the
subject lot was not held in common ownership since the date that the lot became
non-conforming and has at least 5,000 sq ft of area and 50 feet of frontage.
Usually, eventually, we receive a written response from the building
commissioner concluding that the lot is buildable. However, recently a new
building commissioner found it unbelievable that a pre-existing lot would not
be subject to dimensional requirements, so in his written response, although he
agreed that the lot was protected as a non-conforming lot, he also wrote that a
special permit was required before any construction could be initiated.
I
tried to persuade him otherwise, but as 30 days after his decision approached,
pursuant to the warnings contained in Purcell v. Sherrill, No. ESCV201002209B, 2012 WL 1325028, (Mass. Super. Feb. 27,
2012), it was necessary to file an appeal with the ZBA. It took over 5 months
from the original submission to the building commissioner to the expiration of
the appeal period from the ZBA decision before the client was able to prove that
she had a buildable lot. As we all know, you have may rights, but sometimes it
takes time and money to be able to exercise those rights.
Although the above
thoughts seem somewhat random, they came to me as I read the recent Land Court
decision in Falardeau
v. Seelen, No. 04 MISC 297674 (JCC), 2017 WL 1905777,1 (Mass. Land Ct.
May 9, 2017), judgment entered, No. 04 MISC 297674 (JCC), 2017
WL 1900331 (Mass. Land Ct. May 9, 2017). The landowner owned a lawful
pre-existing non-conforming lot with a dilapidated cottage. The Building
Commissioner sent a letter to the lot owner advising the lot owner that the
cottage was uninhabitable and “in serious need of immediate repair.” The Land
Court decision also states that the Building Commissioner “also offered his
opinion that, because the cottage had been built on the Lot prior to enactment
of zoning in Hingham, the Lot was protected under G.L.
c. 40A, § 6 ‘as a lot for one or two
family residential use, which contains at least 5,000 square feet and 50 feet
of frontage.’ He gave his further opinions that the existing cottage could be
‘renovated or reconstructed as it presently stands on the lot,’ and that ‘since
this lot has the protection of General Laws Chapter 40A, you may either make
basic repairs to the existing structure to stabilize it until such time as it
is ready to be renovated, or you may raze the existing structure and clear the
lot of all debris, saving it until such time as it is feasible to reconstruct.’
The Building Commissioner went on to relate his opinion that, in either event,
any dwelling eventually built on the lot ‘may be constructed with present
setbacks so long as it does not further reduce any non-conforming dimension.’ ”
Of course, the
Building Commissioner was not entirely correct.
The lot owner
demolished the cottage, and eight years later sought to sell the lot to a party
who intended to build a new home on the lot. The buyer sought variances from
the table of dimensional requirements, and the ZBA granted the variances with a
finding that lot size variances were not necessary because the lot was
grandfathered.
Several residents
filed a timely appeal. The Land Court found that that lot was not protected
under G.L. c. 40A, § 6, ¶ 4. “When the nonconforming cottage was demolished, the
nonconforming use of the land, i.e., the location of a dwelling on a lot
lacking the required minimum frontage and area, was discontinued. When the use
was not re-instated within two years, the right to continue to use the
undersized Lot as the site of a residential dwelling was extinguished − not
only the right to rebuild a dwelling with the same nonconforming setbacks as
the cottage. See Dial Away, 41 Mass. App. Ct. at 171 (‘[I]t is
apparent...that when a building is totally demolished, the use to which it was
put is necessarily discontinued.’).
“Accordingly, on the
basis of the undisputed facts before me, I find that once the undersized Lot
was then left vacant for more than two years after the nonconforming
residential cottage was razed, the protected nonconforming single family
residential use of the undersized Lot was discontinued by virtue of Subsection
4 of Section III–G of the Hingham Zoning By-law, which expressly terminates the
right to continue a nonconforming ‘use of...land...in the event of non-use or
non-restoration for a period of not less than two (2) years.’ ” Falardeau v.
Seelen, No. 04 MISC 297674 (JCC), 2017 WL 1905777, at 8.
Although Land Court cases do not create precedent, they can (and
often do) provide knowledge and warnings. The Falardeau decision is consistent
with the Appeals Court case in Dial Away. Once a landowner proposes to modify or reconstruct a preexisting
single or two-family dwelling, the protections contained within the fourth
paragraph of Section 6 fall by the wayside, and the provisions of the first
paragraph apply (complicated by the variations or the standards found in local
zoning bylaws). A footnote in a 2003 Superior Court decision concluded that
“The Dial Away case, note 8, supra, appears to hold that the
first and fourth paragraphs of section 6 are mutually exclusive, and that a
parcel which has once been improved with a residence cannot be treated as
vacant and thus within paragraph 4, even if the right to reconstruct under paragraph
1 has been lost by abandonment.” Wells vs.
Zoning Bd. of Billerica, Mass. Super., No. CA005487 (2003)
Paul Alphen’s column, “Contemplations, Ruminations and Musings
of a Country Lawyer,” is a regular feature of the REBA Blog and REBA News.
A former president of REBA,
Paul currently serves on the association’s executive committee and co-chairs
the long-range planning committee. He is
a partner in the Westford firm of Alphen
& Santos, P.C. and concentrates in residential and commercial real estate
development, land use regulation, administrative law, real estate transactional
practice and title examination .As entertaining as he finds the practice of
law, Paul enjoys numerous hobbies, including messing around with his power
boats and fulfilling his bucket list of visiting every Major League
ballpark. Paul can be contacted at palphen@alphensantos.com
