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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Rule 1:28 decisions(unpublished decisions rendered by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Although they are not binding precedent in other cases(at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
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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
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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
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Phillips &Angley serves clients throughout eastern Massachusetts inr_luding Plymouth County, Barnstable County,
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