Massachusetts Real Estate Lawyer Blog
If a zoning board decision affects other adjoining or nearby landowners, they may be able to appeal the ruling. The Massachusetts Land Court reviewed a case on June 7, 2017 in which the defendants had obtained approval from the local zoning board to tear down a lawfully nonconforming garage on their property and replace it with a larger, single-family home. The plaintiffs, who lived on a parcel of land abutting the defendants’ property, appealed the zoning board’s grant of a special permit and variances authorizing the plan.
After determining that the plaintiffs had standing to bring the appeal, the land court turned to the question of whether the special permit had been properly issued. The defendants in the case requested relief from the off-street parking requirements of a local ordinance, which required a 20-foot driveway to accompany parking facilities within the ground floor of a structure. Pursuant to local laws, the zoning board is authorized to waive this requirement by issuing a special permit, if the board finds that the reduction is not inconsistent with public health and safety or that the reduction promotes a public benefit.
After reviewing the zoning board’s written determination, the land court found that, despite the lack of an explicit finding that the defendants’ proposal was not inconsistent with public health and safety or that the reduction promotes a public benefit, the standard was implicitly applied when the zoning board considered traffic flow and safety and stated that it did not foresee the location and the size of the site as having a significant negative impact. The land court concluded that the board employed an evaluation that was functionally identical to that mandated by the ordinance regarding parking waivers.
The land court went on to explain that it looked at not only the standards required for a parking waiver but also those applicable to an alteration of a nonconforming structure. Pursuant to zoning laws relevant to a nonconforming structure, the board may grant a special permit to reconstruct, extend, alter, or change a nonconforming structure only if it determines that such reconstruction, alteration or change is not substantially more detrimental than the existing nonconforming structure to the neighborhood. In addition, the board must also consider generally applied criteria whenever it issues a special permit, which requires a finding that the benefit to the city and the neighborhood outweighs the adverse effects of the proposed use.
The land court concluded that the defendants’ proposal was, at the very least, a reconstruction of a nonconforming structure, and it would extend the property’s existing nonconformities. The board was thus empowered to approve the defendants’ application only after evaluating the project and making a finding that the proposed change will not be substantially more detrimental to the neighborhood. The board’s failure to make such required findings, therefore, invalidated its decision. The land court went on to rule that neither the special permit nor the variances were properly granted, and it reversed the board’s determination.
If you are involved in a property dispute, the Massachusetts real estate attorneys at Pulgini & Norton can offer guidance as well as options to achieve your goals. We have represented individuals in a range of residential property disputes, from land use and building permits to home sales and mortgage refinancing. To discuss your real estate matter with an experienced attorney, call Pulgini & Norton at (781) 843-2200 or contact us online to schedule an appointment.
More Blog Posts:
Massachusetts Property Owner Appeals After Zoning Board Denies Building Permit, Massachusetts Real Estate Lawyer Blog, published May 15, 2017
Massachusetts Appeals Court Sides with Property Owner in Case Against Town Over Easement Rights, Massachusetts Real Estate Lawyer Blog, published August 22, 2016