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HomeMy WebLinkAbout- Miscellaneous - 1725 TURNPIKE STREET 8/14/2018 (3) NON-CONFORMING USES&SPECIAL PERMITS:A REMINDER FROM THE A...Development Lawyer Cambridge Real Estate Disputes Law Firm 8114118,5:52 PM Search our site OVER OF EXPERIENCE 4 1 PHI LLIPS & ANC LEY 866-675-2109 617-892-4391 A 01 N A N I A i f NON-Co"ON FORMING USES & SPECIAL PERMITS.,- A REMINDER FROM THE APPEALS COURT Byieffrey Angley of Phillips &Angley posted in Zoning on Friday,January 24, 2014. Rule 1:28 decisions(unpublished decisions rendered by the Massachusetts Appeals Court)often contain concise synopses, if not reminders, of settled areas of law. Although they are not binding precedent in other cases(at best, they offer persuasive value), Rule 1:28 decisions give lawyers and potential litigants a sense of what the outcome might be if an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 https://www.ph11lips-ang(ey.comiblog/2014/01Inon-conforming-uses-special-permits-a-reminder-f(om-the-appeals-court.shtmI Page 1 of 6 NON-CONFORMING USES&SPECIAL PERMITS:A REMINDER FROM THE A...Development Lawyer Cambridge!Zeal Estate Disputes Law Firm 8/14/18,5:52 PM 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 i Mass. App. Ct. 1128 (2014), reminds us that when it comes to replacing and extending an existing r1on(oi1Lorming Qo nrnc rdal use and sty ucture, such hopes will only be T 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 l lit:,.rl 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. MBA I)efending Liberty • Landowner applied for special permit to demolish I'urtiuing Justice 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 f y reasoned that the proposed use/structure would be s preferable to what currently exists because there would be fewer nonconformities, and thus that theJ UTIE 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 https://www.phiiiips-angley.com/blog/2014101/non-conforming-uses-special-permits-a-reminder-from-the-appeals-court.shtmi Page 2 of 6 NON-CONFORMING USES&SPECIAL PERMITS:A REMINDER FROM THE A...Development Lawyer I Cambrldge Real Estate Disputes Law Firm 8/14118,5:62 PM 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 ofjeffrey T. Angley, P.C. Edited byieffrey 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. Ifyou 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 andjeffrey T. Angley, P.C., Phillips&Angley or their attorneys. Tags:40A 7_oning, nonconforming structure, n0nr0r1f0rrniIl2 use, sper_ial perillit, variance Related Posts: Challenging Zoning B laws: Standing_ Another lurisd€ctional Consideration , A denied building permit: is not the end of your options Phillips 8 Angley_ Successfully Defeats Summary-Judgment in ZBA Failure to Send Notice of Remand Hearings to Party-In-Interest in I_ancl C atilt, �1p1? ding Igcenied project with the Boston Arcing Board of Appeals https:«www.philIips-angley.com/blog/2014/01/non-conforming-uses-special-permits-a-reminder-from-the-appeals-court.shtmI Page 4 of 6 NON-CONFORMING USES&SPECIAL PERMITS:A REMINDER FROM THE A—Development Lawyer I Cambridge Real Estate Disputes Law Firm 8114118,5:52 PM Share on: „ t No Comments Leans a comment Name (required) E-mail Address (required) Website Comment here Name Brief description of your legal issue E-mail Address Phone 4 Phillips &Angley serves clients throughout eastern Massachusetts inr_luding Plymouth County, Barnstable County, Bristol County, Middlesex, Norfolk County, Essex County and Suffolk County. Regional nicknames: Eastern Massachusetts https:JJwww.phillips-angley.com/blog/2014/011non-conforming-uses-special-permits-a-reminder-from-the-appeals-court.shtmi Page 5 of 6