If wrapping your head around the law concerning reconstructing, extending, or altering a pre-existing nonconforming structure wasn't difficult enough already, the Supreme Judicial Court recently felt the need to add yet another layer of complexity for homeowners, zoning boards and courts. In Palitz v. Zoning Board of Appeals of Tisbury, 26 N.E.3d 175 (2015), the SJC firmly pronounced what we already knew - that subdivision control and zoning are independent of one another. However, the decision raises many question about the further expansion of pre-existing nonconforming structures that have already once obtained permission for expansion by variance.
First, we need a little background (also, please see my prior blog post entitled Extensions or Alterations to Pre-Existing Nonconforming Structures: Placing Conditions on a G.L. c. 40A, §6 Finding, from April 2014). In 2005, the SJC issued its split decision in Bransford v. Zoning Board of Appeals of Edgartown, 444 Mass. 852 (2005). In Bransford, the concurring justices ruled that even when the "reconstruction" of a grandfathered single-family residence would satisfy all current dimensional requirements of the zoning bylaw, the new house would still result in an "increase [of] the nonconforming nature" of the structure within the meaning of G.L. c. 40A, §6. This is because the lot upon which the house would sit was smaller than the minimum lot size then required, and the proposed house would be nearly double the size of the existing house. Thus, a Section 6 Finding by the zoning board (that the proposed structure would not be "substantially more detrimental") was required before a building permit could be issued. The SJC reasoned that the expansion of the footprint of the house and overall living area would reduce open space and increase density in the neighborhood, even though all dimensional requirements were satisfied. Importantly for our discussion, the Bransford concurrence noted that "[c]reating a distinction in treatment between a nonconforming structure and a nonconforming lot is one that analytically and practically should not be made. The two concepts are intertwined and separating them would permit a landowner to circumvent valid and useful minimum lot area requirements." Bransford, supra, at 645. Three years later, a majority of the SJC adopted the reasoning of the Bransford concurrence in Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008) ("[w]e now adopt the result and reasoning of the concurring opinion in the Bransford case and apply that opinion to this case, which involves a proposal to quintuple the size of an existing residence, a more drastic expansion than the one proposed in Bransford.") Interestingly, in both Bransford and Bjorklund, Justice Cordy wrote dissenting opinions in which he stated that it was his opinion that the reconstruction of a grandfathered structure that satisfied all dimensional requirements but which happened to be on an undersized lot should not be considered as increasing the nature of the nonconformity within the meaning of §6.
Moving forward, we find a case that not only involved grandfathered structures, but also the effect of a variance and a change in the lot lines. In Glidden v. Zoning Board of Appeals of Nantucket, 77 Mass. App. Ct. 403 (2010), the owner of the property at issue received a special permit to raise the existing garage and build a smaller pool house at a different location on the lot. The lot was lawfully nonconforming as to lot area, and the house was grandfathered with respect to various setback requirements of the current bylaw. Ten years earlier, in 1995, a prior owner of the property had been granted a variance to effect the exchange of equally sized portions of land with a neighbor, in order to bring one of the side-yard setbacks into conformity with zoning. The plaintiffs in Glidden argued that the 1995 variance stripped the lot and structures thereon from their grandfathered protections, and thus, the special permit was unlawfully granted. The Appeals Court, (Smith, J.) determined, however, that the lot line reconfiguration resulting from the land swap caused no change in the overall size of the lot, and that it did not extend existing nonconformities or create new ones. Thus, there could be no intensification of the present nonconformities, in contrast to Bransford. Accordingly, the variance in Glidden had "no effect on the structures' protected status." Glidden, supra, at 407.
It would stand to reason that a variance, which solely acts to exempt a lot, structure, or use from specific applicable zoning regulations, would have little to no effect on the pre-existing grandfathered status of structure. This would seem to be the reasoning behind the Glidden decision. However, the Palitz case calls this understanding into serious question. In Palitz, the property at issue was once part of a single lot upon which sat three single-family residences. In 1994, the current owner of the large single-lot subdivided the property pursuant to G.L. c. 41, § 81L, resulting in each single-family residence sitting on its own lot. After subdivision, new lot number 87, at issue in Palitz, had new nonconformities relative to frontage and minimum lot size, and the existing structure was newly nonconforming as to front and side yard setbacks. To remedy these new nonconformities, a variance was granted in 1995 to make the lot and dwelling lawfully nonconforming.
The plaintiff in Palitz purchased lot 87 in 2007, and in 2012 sought a building permit to tear down the existing dwelling, which had become dilapidated, and construct a new single-family residence that would maintain the same footprint as the old structure but be approximately 10 feet taller, and contain greater interior space. The building inspector denied the plaintiff's request for a building permit, and the plaintiff then applied for an amended variance from the zoning board, which was also denied. On appeal the plaintiff argued that she was entitled to the grandfather protections of pursuant to G.L. c. 40A, § 6, and needed neither an amended variance, nor, in fact, the original 1995 variance. The land court judge disagreed; reasoning that lot 87 was not rendered lawful by § 6 or the § 81L subdivision, but rather by the 1995 variance. As such, in order to enlarge the existing house, an amended variance was necessary.
The SJC, by a unanimous decision written by Justice Cordy, upheld the land court judge. The SJC noted that the § 81L subdivision created new nonconformities relative to lot size, frontage, and front yard setback. Thus, these new nonconformities would not fall under the grandfathered protections of § 6. More particularly, the SJC found that the proposed structure would expand on not only the grandfathered nonconformities, but also upon the nonconformities made lawful by the 1995 variance; noting, "[b]ecause the proposed reconstruction in this case would have expanded nonconformities permitted by variance, the plaintiff was required to obtain a new or amended variance to proceed with her project." Palitz, supra, at 181. Remember, however, that the proposed new structure would be entirely within the footprint of the existing lawfully nonconforming dwelling, and that, according to Glidden, a variance does not affect the otherwise applicable grandfathered status of a structure. Moreover, and interestingly due to Justice Cordy's dissenting opinions in Bransford and Blorklund, the court stated that "[i]t is of no consequence that the increased height would have been within the maximum height allowed for residential structures. The increase in height was objectionable because, inter alia, it would have expanded the front yard setback nonconformity by blocking the view of an abutter." Id. at n. 10 (emphasis added).
Also, importantly, the SJC stated that "the grant of the 1995 variance was based, in part, on the building not being altered." Palitz, supra, at 181 n. 11. This statement is interesting because the Land Court specifically found that the 1995 variance was not, in fact, conditioned on the building not being altered. Instead, the Land Court reasoned that the language of the 1995 variance, stating that there would be "no change in the appearance or use of the buildings", reflected support for the finding that the grant of the 1995 variance would not create a substantial detriment to the neighborhood. The SJC did not address this finding of the Land Court in its decision, which is odd considering its statement in FN 11 seems to be at odds with the Land Court's express finding.
So where does this leave the already challenging law regarding pre-existing nonconforming structures? One thing the Palitz court does not state in its decision is that all § 6 grandfathered protections for the property have been lost. But the case raises a number of questions that may need clarification in the future. Did the SJC rest its decision, primarily, on its apparent belief that the 1995 variance was conditioned upon the structure not be altered? If that is the case, it would seem that the court could have been much more clear and concise - such reasoning is not particularly controversial. Moreover, one would think that if that were the basis of its decision, it would have specifically overruled the Land Court's explicit determination that the 1995 variance was not so conditioned. Alternatively, did the SJC create a new analytical framework akin to a traditional § 6 analysis but applied to previously granted variances? There is language in the decision that suggests that, now, a homeowner (as well as building inspectors and zoning boards) might have to analyze a proposed project to determine whether a project "expand[s] nonconformities" which lawfully exist only pursuant to a variance - a somewhat analogous analysis as is done within § 6. Does this mean that, with respect to variance nonconformities, there are new questions to be ask a priori? The question may no longer be just "is this a new nonconformity that requires a variance", but might also need to be "will this 'expand' a nonconformity made lawful by a variance? If so, this would appear to be a departure from traditional jurisprudence on variances, and could lead to confusion and further conflict in the future.
Written by Robert K. Hopkins, Esq., on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2015 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.