For many owners of residential beach homes in Massachusetts, their ocean view is an important and enjoyable part of their property. In order to make certain changes to the home, therefore, local zoning laws generally require a special permit or variance. In a July 12, 2019 Massachusetts real estate case, the owner of a beach house opposed the building permits granted to her neighbors for a tear-down and rebuild of a new residence. The matter came before the Land Court on appeal by the plaintiff, following the decision of the local zoning board.
Both of the parties’ properties were on a peninsula near the ocean. The plaintiff resided in a single-story home with a deck. The defendants reportedly tore down an existing, single-story, non-conforming residence and built a new two-story home in its place. Although the plaintiff’s view of the ocean from her deck became partially obstructed by the second story of the defendants’ new house, the height of the house fully complied with current zoning. Other aspects of the house, however, were not.
On appeal, the plaintiff argued that the defendants’ new home increased the nonconformity of the floor area, open space, and setbacks beyond the limits allowed under the town zoning bylaw. While the defendants had obtained a building permit to construct the house, the plaintiff asserted that the defendants were required to obtain a special permit or variance for the new build.
As an initial matter, the Land Court found that the original house on the defendants’ lot was a legally nonconforming structure within the grandfathering protections of the town zoning bylaw. The court went on to conclude that the defendants’ new house was within the maximum height and floor area limits of the bylaw, and that the house had improved the prior setback nonconformities and reduced the nonconforming building area of the prior structure. With respect to the open space requirements of the zoning bylaw, however, the court ruled for the plaintiff.
The local bylaw requires that changes to a grandfathered one- or two-family house, such as the defendants’ house, comply with the requirements for minimum open space, or, if they do not comply, that the changes do not result in a decrease in open space on the lot. The Land Court noted that with an additional parking area and outdoor patio, combined with the new house and its other impervious spaces, more open space is occupied than allowed on the defendant’s lot. Accordingly, the court remanded the matter for the building inspector and zoning board to ensure that the defendants modify their additional parking and patio, in order to bring the overall development in compliance with the bylaw’s open space requirement.
At Pulgini & Norton, we have the legal knowledge and resources to help you make the most of your residential property. Our Massachusetts real estate lawyers have assisted many homeowners and buyers with purchase and sale agreements, mortgage financing, building permits, foreclosures, and other transactions. If you are seeking legal guidance for a residential real estate matter, contact Pulgini & Norton by phone at (781) 843-2200 or online and request a free initial consultation with one of our attorneys.