Friday, December 8, 2017


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
or a use was lawfully pre-existing non-conforming when the period of historical records required to prove the protection was only 10 or 15 years; but today the research required often spans 60 years or more.

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 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

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