Earlier this month, the
Massachusetts Supreme Judicial Court (“SJC”) issued a decision holding that,
pursuant to the statute
governing modification of grandfathered (i.e.,
preexisting nonconforming) structures, the dimensional nonconformities of one-
and two-family residential structures may be increased upon a finding that
there will be no substantial detriment to the neighborhood. The decision is
significant because the SJC explicitly determined that such structures need not
obtain a variance, notwithstanding the fact that a nonconformity is being
increased – that is, rendered more noncompliant with the existing zoning
by-laws. The case hinges on the SJC’s interpretation of what it describes to be
the “difficult and infelicitous” language contained in the first paragraph of
G.L. c. 40A, § 6, which is the statute governing preexisting nonconforming
structures and uses in the Commonwealth.
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| Kimberly Bielan |
The decision is
significant because the SJC explicitly determined that such structures need not
obtain a variance, notwithstanding the fact that a nonconformity is being
increased – that is, rendered more noncompliant with the existing zoning
by-laws.
In Bellalta v. Zoning
Board of Appeals of Brookline, 481 Mass. 372
(2019), homeowners in Brookline sought to modify
the roof of their two-family house to add a dormer. The home was on an
undersized lot, and the sole preexisting dimensional nonconformity of the
structure was its floor area ratio (FAR). While the zoning by-laws required an
FAR no greater than 1.0, the structure’s existing FAR was 1.14; the proposed
addition, though modest in nature, would further increase the nonconformity to
1.38. The homeowners applied to the Zoning Board of Appeals of Brookline
(“Board”) for a special permit (which incorporated the finding of no
substantial detriment under the local zoning by-laws), which was granted.
Certain abutters to the property appealed to the Land Court pursuant to G.L.
c. 40A, § 17, arguing that the homeowners were also required
to obtain a variance because the modification would increase the nonconforming
nature of the structure. The Land Court rejected the argument and affirmed the
Board’s decision granting the special permit. On appeal, the SJC granted the
petition for direct appellate review.
In its decision, the
Court held that “the statute requires an owner of a single- or two-family
residential building with a preexisting nonconformity, who proposes a
modification that is found to increase the nature of the nonconforming
structure, to obtain a finding under G.L. c. 40A, § 6, that ‘such change,
extension or alteration shall not be substantially more detrimental tha[n] the
existing nonconforming use to the neighborhood.’ The statute does not require
the homeowner also to obtain a variance in such circumstances.” In reaching
such conclusion, the SJC first analyzed the statutory framework (noting, again,
that the “language of G.L.
c. 40A, § 6, has been recognized as particularly abstruse”)
and legislative history, recognizing that the Legislature intended to afford
greater protections to one- and two-family residential structures under the
Zoning Act.
Accordingly, the Court
endorsed the framework previously set forth
by the Appeals Court in Willard v. Bd. of Appeals of Orleans,(1987).
Under this approach, there must be an initial determination by the permitting
authority to “identify the particular respect or respects in which the existing
structure does not conform to the requirements of the present by-law and then
determine whether the proposed alteration or addition would intensify the
existing nonconformities or result in new ones.” If the answer to this question
is “no”, then the applicant is entitled to a permit to proceed immediately with
the proposed alteration. If, however, the answer to the question is “yes”, then
the homeowner must obtain a finding (often, but not always, incorporated into a
special permit requirement in municipal zoning by-laws) that the proposed
modification will not be “substantially more detrimental to the neighborhood.”
As the SJC stated, it is “[o]nly if a modification, extension, or
reconstruction of a single- or two-family house would ‘increase the
nonconforming nature of said structure’ [that it must] ‘be submitted … for a
determination by the board … .” There is no requirement that a homeowner obtain
a variance when increasing a preexisting dimensional nonconformity.
The practical
implications of the Bellalta decision
are, in some respects, confounding, and an example is likely helpful. Suppose a town’s zoning by-laws require a ten (10’) foot side yard setback, and there is
an existing structure that is eight (8’) feet from its side property line at
the time the by-laws become effective. Such structure would be considered
lawfully preexisting nonconforming, and the homeowner would be able to maintain
the structure in its present location. Under the Bellalta decision, if the homeowner proposed to modify this
structure, he or she could further expand into the side yard setback; that is,
he or she could further encroach into the side yard and, for example, build
five (5’) feet from the property line upon receipt of a finding that such
construction would not be substantially more detrimental to the neighborhood.
At the same time, a homeowner on a neighboring property, whose structure
complies with the ten (10’) foot side yard setback, would not be able to expand
further into the side yard. Instead, because the second homeowner’s structure
is compliant with the zoning by-laws as adopted, a variance would be required.
The difference is substantial, as the showing for receipt of a variance is much
more rigorous than for a finding.
While the Bellalta decision definitively answers
the relief necessary for a one- or two-family preexisting nonconforming
structure under G.L. c. 40A, § 6, it may incite the Legislature to finally
address the difficult language contained in the first paragraph of the statute.
At the same time, there are certain limitations to the decision. The holding is
applicable only to single- and two-family dwellings and is inapplicable to
commercial structures. In addition, the Court declined to address the issue of
what relief would be necessary when there is the creation (rather than a
modification, extension, or reconstruction) of a new nonconformity.
1 As the SJC explained in
Bellalta, a “preexisting
nonconformity is a use or structure that lawfully existed prior to the
enactment of a zoning restriction that otherwise would prohibit the use or
structure.” Effective November 2016, structures that have been constructed
(even without benefit of a building permit or otherwise in noncompliance with
applicable zoning by-laws) and not subject to an enforcement action for a
period of ten (10) or more years will also be treated as preexisting
nonconforming structures, entitled to the protections of G.L. c. 40A, § 6.
Co-chair
of REBA’s strategic communications committee, Kim Bielan is an associate in the
litigation and zoning and land use departments of Moriarty, Troyer & Malloy LLC.
Kim’s practice focuses primarily on real estate litigation, with an emphasis on
zoning and land use matters. She can be contacted by email at kbielan@lawmtm.com.
