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Expanding, Altering and Re-Constructing Pre-Existing Nonconforming One- and Two-Family Residences

Considering the age of many single and two-family homes within the Commonwealth, and the relative time period when zoning ordinances and by-laws came into effect across municipalities, it is common to find that many homes often do not comply with current local zoning requirements.

Under M.G.L. c.40A, § 6, these homes are defined as "pre-existing nonconforming structures". Generally, the more common types of non-conformities are inadequate lot size, failure to meet boundary line setback requirements, and excessive roof heights.

Provided that they were lawfully constructed at the time they were built, pre-existing nonconforming single and two-family homes enjoy the benefit of so-called "grandfathered protection", meaning that they can remain as-is and do not need to come into compliance with current zoning requirements.

However, because many older homes are small, have inefficient layouts and/or lack amenities sought by today's homeowners, it is often desirable to enlarge and update the living space. In the case of pre-existing nonconforming structures, problems can arise when the homeowner wants to alter, extend or reconstruct the existing home in order to meet current standards of living, because it usually involves more than just applying for a building permit.

This is because M.G.L. c. 40A, § 6, also mandates that if any reconstruction, extension or structural change is to be undertaken to a pre-existing nonconforming structure, the new, extended or altered structure must either comply with current zoning or else be duly authorized by special permit or a so-called "Section 6 finding" issued by the special permit granting authority (SPGA).

Fortunately, § 6 also provides a limited exception to these requirements for the alteration, reconstruction, extension or structural change of a single or two-family residential structure, so long as it will not increase the nonconforming nature of the structure. Despite the nebulous language of § 6 that has long frustrated practitioners, the recent holding in Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011),* confirms the review framework for any alteration, reconstruction, extension or structural change to a pre-existing nonconforming one- or two-family home.

First, the SPGA must identify the particular way(s) that the existing single or two-family home does not comply with the current zoning bylaw or ordinance.

Next, the SPGA must "determine whether the proposed alteration or addition would intensify the existing nonconformities or create additional ones." Gale, 80 Mass. App. Ct. at 337 (quoting Bransford v. Zoning Board of Appeals of Edgartown, 444 Mass. 852, 858 (2005) (citation omitted)).

· If the answer is no, then a special permit or other less formal authorization (as designated by the ordinance or bylaw) shall issue to the applicant.

· If the answer is yes, then the SPGA must proceed to make a further determination about whether the proposed change, extension or alteration will or will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. If it is not substantially more detrimental than the existing structure, then a special permit or other designated approval can issue to the applicant.

The Gale court further held that provided that the applicant can proceed under either scenario, then a variance is not required under the local zoning bylaw or ordinance, as was originally alluded to in dicta from a prior case.

Despite the clarification provided by the Gale holding, the "difficult and infelicitous" language of M.G.L. c.40A, § 6, still leaves open several other issues pertaining to the reconstruction, alteration or expansion of certain other pre-existing nonconforming uses or structures. Moreover, the process of obtaining a Section 6 finding still inevitably requires that applicants be able to provide sufficient evidence to the SPGA that they are entitled to a special permit.

* The underlying issue in Gale was whether the landowner was required to obtain a variance in addition to a special permit in order to reconstruct a pre-existing nonconforming single-family house that would have added new non-conformities.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

1 Comment

This is an interesting case. So, does these now mean that for any pre-existing non-conforming structure, a Special Permit is all that is needed to make any change that makes the structure more non-conforming? Does this also mean that these structures no longer need apply for a variance for relief, only Special Permit. Also, if Zoning Districts change and possibly become more restrictive, i.e. lot sizes change from 30,000 to 40,000 sf, do the existing parcels containing dwelling now only have to apply for Special Permits when they want to extend the non-conformity? Talk about shooting yourself in the foot with this decision!

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