Demonstrating that the law in the area of
pre-existing nonconforming uses continues to be refined, last August the
One principal takeaway from the Comstock
decision is that the law is continuing to be refined relative to preexisting
nonconforming structures and the protections afforded to them.
Factual Background
The zoning dispute at issue in Comstock
arose out of abutting parcels in Gloucester. The applicants, Robert and Pamela
Irwin, sought to tear down a preexisting nonconforming garage that had fallen
into a state of disrepair and construct a new garage in its place. The existing
garage was nonconforming as the Irwins’ property was undersized, and the garage
was set back only five feet (where 10 feet is required) from the property line
it shared with the neighboring property, owned by Henry Comstock Jr. In its
place, the Irwins proposed to construct a new garage on the same footprint, but
at a greater height. The existing garage was 12 feet (compliant with the zoning
by-law’s height requirements for structures accessory to single-family
dwellings), and the Irwins were proposing to increase the height to 15 feet. In
addition to the increase in height, the Irwins proposed to reorient the garage,
such that the ridgeline of the roof would be parallel to the side property line
so the garage could accommodate a garage door facing the street.
The Irwins applied to the Zoning Board of
Appeals of Gloucester for two special permits: to modify the preexisting
nonconforming garage, and to authorize an increase in height to 15 feet pursuant
to a provision in the zoning by-law authorizing accessory buildings to exceed
the 12 foot accessory structure height requirement upon receipt of such relief.
Before the Board, three neighbors spoke in favor of the project (including
Comstock who ultimately appealed), and there was no opposition. The Board
granted the requested special permits and, out of an abundance of caution based
on its reading of Deadrick v. Zoning Board of Appeals of Chatham (2014),
also granted two variances to the Irwins. As is relevant here, the Deadrick
decision stands for the proposition that, in granting relief for a preexisting
nonconforming structure, a variance is required to authorize the introduction
of a new nonconformity. In the interim between the public hearing and the
deadline to take an appeal of the Board’s decision, a dispute apparently arose
between the Irwins and Comstock, and Comstock appealed to the Superior Court.
Procedural Background
On appeal to the Superior Court, the
Irwins moved for summary judgment on the basis that the special permit decision
was sufficient to authorize the project, no variances were required, and that
there was no basis to find the Board’s decision was arbitrary and capricious.
The trial court denied the Irwins’ motion for summary judgment and,
alternatively, granted summary judgment in favor of Comstock. Purporting to
rely on Deadrick, the trial court judge ruled that the Irwins required
additional relief – a variance to exceed the 12foot height requirement for
structures ancillary to single-family dwellings. The Irwins appealed.
Appeals Court Decision
On appeal, the Appeals Court reversed the
trial court’s decision and remanded the matter for judgment in favor of the
Irwins. The Appeals Court noted that it was taking the opportunity to clarify
its decision in Deadrick concerning the need to obtain a variance in
connection with the creation of a new zoning nonconformity when alterations to
preexisting nonconforming structures are proposed.
The Appeals Court first walked through the
protections afforded to preexisting nonconforming structures pursuant to G.L.
c. 40A, § 6 (an overview of which can be accessed using the
link provided hereinabove). In connection with its analysis, the Appeals Court
noted the importance of analyzing the zoning by-law of the subject
municipality, as additional protections may be afforded than those provided in
the Zoning Act generally. By way of example, in the Gloucester zoning by-law,
certain preexisting nonconforming protections were extended to accessory
structures, such that the Irwins were entitled to seek special permit relief in
connection with their project. Absent such protections, the Irwins may have
been required to comply with the current provisions of the zoning by-law,
including those for setbacks.
Next, the Appeals Court addressed whether
the Irwins needed to obtain a variance from the height requirements, as the
trial court judge had held. The Appeals Court noted that key to its reasoning
in cases concerning G.L. c. 40A, § 6 is placing all property owners in an
equivalent position. That is, the mere fact a property contains a preexisting
nonconforming structure does not mean that the property owner can wholly
disregard present requirements of the zoning by-law; however, at the same time,
those property owners should not be placed at a disadvantage than those who are
entitled to develop their properties pursuant to the current provisions of the
zoning by-law. Here, the applicable zoning by-law provided that property owners
could exceed the 12-foot height limitation of accessory structures upon receipt
of a special permit. In ruling that the Irwins were required to obtain a
variance from the 12-foot height limitation due to the Appeals Court’s decision
in Deadrick concerning the creation of new nonconformities in connection
with modifications to a preexisting nonconforming structure, the trial court
was treating owners of properties improved with preexisting nonconforming
structures disparately from those without such structures – the former being
subject to the rigorous proof requirements of a variance, and the latter being
entitled to seek special permit relief entailing a higher degree of Board
discretion. As the municipal zoning by-law contains a provision permitting a
special permit to authorize construction at a height greater than 12 feet for
accessory structures, the owners of properties containing preexisting
nonconforming structures were entitled to apply for such special permit relief
as well.
Takeaway
One principal takeaway from the Comstock
decision is that the law is continuing to be refined relative to
preexisting nonconforming structures and the protections afforded to them.
There are still outstanding issues that have yet to be answered, and municipal
boards, comprised of volunteer members, have a lot to grapple with in considering
these matters. A second takeaway from Comstock is the importance of
analyzing the specific provisions of the particular zoning by-law at issue.
While the Zoning Act has statewide applicability, each municipal zoning by-law
contains different provisions that may afford unique protections and permit
development in circumstances that may not be permissible in other towns.
Originally post at https://lawmtm.com/boston-grandfathered-structures.html
on August 28, 2020.
Kim Bielan is a principal of Moriarty
Troyer & Malloy LLC and member of the litigation and zoning and land use
departments. She represents a variety of clients, including condominium
associations, developers, and individual homeowners. Her practice focuses
primarily on real estate litigation, with an emphasis on zoning and land use
matters. She also represents clients on a variety of real estate permitting
matters and frequently appears before municipal boards to permit projects and
to represent the interests of abutters and neighborhood groups. Kim’s email
address is kbielan@lawmtm.com.
