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.
