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EXTENSIONS OR ALTERATIONS TO PRE-EXISTING NONCONFORMING STRUCTURES: PLACING CONDITIONS ON A G.L. c. 40A, § 6 FINDING

Municipal zoning regulations are in a constant state of flux - especially when considered in relation to the long life span of many Massachusetts' residential and commercial structures. As such, many homes and commercial properties do not conform to current zoning regulations, particularly concerning issues like frontage, side and rear yard setbacks, and floor-to-area ratio (square footage of a structure in relation to the total area of the lot). Often, these structures were built in conformance with the applicable zoning regulations, but have subsequently fallen out of compliance due to increasingly strict requirements. These structures are thus categorized as "pre-existing nonconforming", and are protected from the more restrictive zoning requirements as long as the structures remain unchanged.

Of course, needs do change over time - families grow, businesses expand, and neighborhoods transform. To require that every pre-existing nonconforming structure be brought into conformity with current zoning every time an owner chooses to alter or extend the building would be impractical, inefficient, and, often, impossible. The Massachusetts Legislature, recognizing the need for flexibility when dealing with pre-existing nonconforming structures, enacted a number of protections in the 1975 Zoning Act (G.L. c. 40A). Relevant here, the statute provides:

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun... but shall apply to any change or substantial extension of such use... except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.

G.L. c. 40A, § 6.

This provision of the Zoning Act distinguishes between single and two-family residential structures and other pre-existing nonconforming structures. Specifically, if an owner proposes to alter, reconstruct, or extend a single or two-family structure, there must be an initial determination of whether or not the proposal will "increase the nonconforming nature of the structure." See Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (2002) (a building inspector may make the initial determination, it is not necessary that it be made by the board of appeals). If it is determined that the proposal will not increase the nature of the nonconformity then a building permit will be issued and no further action is necessary. Id. However, if the initial ruling is that the proposal will increase the nature of the nonconformity, that decision can then be appealed to the zoning board of appeals. See M. Bobrowski, Handbook of Massachusetts Land Use and Planning Law, § 6.06 (3d. ed. 2011) (citing Goldmuntz v. Hulsizer, Misc. Case No. 139026 (Land Ct. 1990); Lique v. Bd. of Appeals of Nahant, Misc. Case No. 124421 (Land Ct. 1988)).

If the local zoning board of appeals upholds the determination that the proposal will increase the nature of the nonconformity, then the second part of the analysis, applicable to all pre-existing nonconforming structures, comes into play - will the proposal be "substantially more detrimental than the existing nonconforming use to the neighborhood." G.L. c. 40A, § 6.

Here is where things can get complicated. The Zoning Act "authorizes, but does not require, a municipality to choose a special permit application as the procedure for extension or alteration of a nonconforming use." Shrewsbury Edgemere v. Bd. of Appeals of Shrewsbury, 409 Mass. 317, 322 (1991). Thus, a municipality may require that the extension or alteration be allowed only special permit. The special permit grant or denial would include a determination of whether or not the proposal would be "substantially more detrimental", as required under § 6. On the other hand, the municipality may only require a so-called "Section 6 Finding" where the reviewing board makes a finding that the "change, extension or alteration" is not "substantially more detrimental than the existing nonconforming use to the neighborhood." This is a more lenient process, requiring only a simple majority vote from the permit granting authority.

If a municipality requires a special permit, the permit granting authority may attach conditions to its grant. See G.L. c. 40A, § 9 ("[special] permits may also impose conditions, safeguards and limitations on time or use"). There is an open question whether conditions may be attached to a stand-alone "Section 6 Finding."

There is no appellate case law in Massachusetts specifically addressing the attachment of conditions to a stand-alone Section 6 Finding. See e.g., M. Bobrowski, Handbook of Massachusetts Land Use and Planning Law, § 6.03(B) ("In Merna v. Long Point Marine, [Case No. 80-12466 (Plymouth Super. Ct. 1982)] a lower court held that a local provision limiting the expansion of nonconforming uses to a 10 percent increase was invalid. There has been no further guidance on this issue."); R. Fishman, Massachusetts Zoning Manual, vol. 1, § 6.8 (4th ed. 2007) ("Section 6 does not state whether the PGA or SPGA can impose conditions upon its finding. The narrow standard of review suggests, however, that for the conditions to be valid, they would have to be necessary to ensure that the authorized extension or alteration would not be substantially more detrimental..." Also citing Merna.).

Unlike special permits or variances, the legislature did not find it necessary to elaborate on stand-alone § 6 findings in the Zoning Act. Thus, Section 6 gives no protocols, references, or guidance for the local board to follow during that decision making process. Special permits and variances, on the other hand, have been given specific sections in the statute, G.L. c. 40A, §§ 9 and 10, respectively. Each of these sections provides detailed guidelines, restrictions, and procedures for the granting of zoning relief, and each section specifically authorizes the attachment of conditions.

Statutory analysis would suggest that, since special permits and variances are explicitly permitted to be issued with conditions, and no such language exists in relation to Section 6 Findings, if the legislature intended that stand-alone findings contain conditions they could have easily inserted language to that effect. Moreover, as mentioned above, municipalities are free to require the stricter special permits, and therefore conditions, for the extension, alteration, or reconstruction of all or any nonconforming structures. Thus, if a municipality truly wants to attach conditions to an extension or alteration project they have the option of amending the local zoning bylaw to require a special permit.

Therefore, it would seem that a municipality which requires only a simple finding of not substantially more detrimental in order to extend or alter a pre-existing nonconforming structure is not entitled to impose conditions upon the issuance of that finding. However, there is no reason to believe that the finding could not identify or outline the specific reasons for the finding and/or particular characteristics of the proposal. Though the matter may seems like splitting hairs, there is a real difference between highlighting specific portions of a proposal that factored into a stand-alone finding, and granting a finding with specific and actionable conditions attached, even if some of those conditions reflect elements of the proposal being voted upon. Moreover, a municipality is still entitled to ensure that an approved plan is followed as it was presented and, if not, recourse is available by suspension or revocation of the building permit.

They key for an owner of a pre-existing nonconforming structure, thus, is to be knowledgeable and vigilant. Take the time to review your local zoning bylaw before you undertake to add a master-bath to your home, or reconfigure your mixed-use commercial property. Do not be afraid to ask questions of your local building inspector, the zoning board, and of course, consult knowledgeable counsel. It may well be that the reason why the question of whether a stand-alone Section 6 Finding may contain conditions remains unresolved is not because the practice is rare, but because applicants are unaware that the practice is questionable, at best, and very possibly, improper.

Written by Robert K. Hopkins, Esq., of Phillips & Angley. 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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