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NON-CONFORMING USES & SPECIAL PERMITS: A REMINDER FROM THE APPEALS COURT

Rule 1:28 decisions (unpublished decisions rendered by the Massachusetts Appeals Court) often contain concise synopses, if not reminders, of settled areas of law. Although they are not binding precedent in other cases (at best, they offer persuasive value), Rule 1:28 decisions give lawyers and potential litigants a sense of what the outcome might be if an appeal were pursued under a similar set of facts. Incidentally, they are also particularly helpful when the appellate courts have not recently adjudicated certain issues of law.

The recent Rule 1:28 decision, Harrison v. St. Pierre, 84 Mass. App. Ct. 1128 (2014), reminds us that when it comes to replacing and extending an existing nonconforming commercial use and structure, such hopes will only be realized if the applicant can satisfy the two-part test found in M.G.L. c.40A, § 6. More to the point: it is irrelevant that the new nonconforming use and structure might be an improvement over the existing nonconforming use and structure because that is not the definitive test.

Here are the facts and history of the Harrison case, briefly:

· Locus is an undersized lot under current zoning.

· Existing structure/use = gasoline station and automobile repair shop. These uses are not allowed either as of right or by special permit in the zone (i.e. they are nonconforming uses). The existing structure does not conform to current setback and dimensional requirements.

· Proposed structure/use = gasoline station and convenience store. These uses are not allowed either as of right or by special permit in the zone. The new building would also be nonconforming under zoning.

· Landowner applied for special permit to demolish the existing structure/use and replace it with the proposed structure/use.

· Despite the fact that the proposed use/structure would still harbor nonconformities, the ZBA granted the special permit under M.G.L. c. 40A, § 6. It reasoned that the proposed use/structure would be preferable to what currently exists because there would be fewer nonconformities, and thus that the proposed use/structure would not be "substantially more detrimental to the neighborhood than the existing, nonconforming uses and structures."

· Abutters appealed the special permit.

· The Land Court invalidated the special permit because the new structure did not satisfy the criteria required for a special permit in such circumstances. The primary basis for the court's decision was the rule espoused in Rockwood v. Snow Inn Corp., 409 Mass. 361, 363-65 (1991).

As most zoning attorneys might recall, when analyzing nonconforming uses under M.G.L. c. 40A, § 6, the Rockwood court stated the following:

[T]he first sentence of the quoted portion of § 6 requires that, in the absence of a variance, any extension or structural change of a nonconforming structure must comply with the applicable zoning ordinance or by-law. Then, if the proposed extension or change conforms to the by-law, the second quoted statutory sentence requires for project approval a finding that the extension or change will not be substantially more detrimental to the neighborhood than the existing nonconforming structures. If the first and second sentences are read together, the statute permits extensions and changes to nonconforming structures if (1) the extensions or changes themselves comply with the ordinance or by-law, and (2) the structures as extended or changed are found to be not substantially more detrimental to the neighborhood than the preexisting nonconforming structure or structures. (emphasis added)

Rockwood, 409 Mass. at 364.

In other words, as the Harrison court noted in its recent Rule 1:28 decision (affirming the Land Court), the essence of the rule in Rockwood is that

absent a variance (which was not issued here), a preexisting nonconforming commercial structure may not be reconstructed, extended or changed unless the new structure is first found to be in compliance with a zoning by-law's setback and other dimensional requirements. . . . [This is because M.G.L. c. 40A, § 6,] is geared toward the elimination of nonconforming uses and structures, not just reducing the numbers of nonconformities in a replacement structure-which replacement structure, albeit even by a lesser number of zoning violations, still is nonconforming to the [local] zoning by-law. (emphasis added)

So, when it comes replacing a nonconforming structure, unless the new structure will comply with the current setback and dimensional requirements (and otherwise meets the two-part test of § 6), applicants will instead need a variance to meet their objectives. Of course, whether such an applicant could actually obtain a variance in these kinds of situations is another matter, particularly because of the stringent standards required for variances.

If nothing else, the Harrison case serves as a good reminder that when it comes to changing or extending nonconforming uses/structures, even generous (or misinformed) zoning board decisions are not likely to withstand appeal if they do not meet the requirements found in M.G.L. c. 40A, § 6.

Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.

Copyright (c) 2011-2014 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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