Massachusetts Real Estate Lawyer Blog
The Massachusetts Land Court recently issued a ruling in a real estate dispute involving zoning relief pursuant to G.L. c. 40A, § 6. In Bjorklund v. Trezise (Mass. Land Ct. Feb. 3, 2016), the plaintiff filed a complaint appealing the decision of the Zoning Board of Appeals, which had denied his request for zoning relief to allow for the construction of a nonconforming single family dwelling.
In Bjorklund, the original home was built on the property in 1890 but knocked from its foundation during the blizzard of 1978. The former owner did not repair the home, and it was torn down in 1980. The plaintiff purchased the property in 1991 and applied for a permit to build a single family dwelling. That permit was denied, and the decision was affirmed on appeal. The plaintiff has since filed four more permit applications to construct buildings on the property, which were denied by the Zoning Board of Appeals. The current appeal was based on an application filed in 2013, in which the plaintiff requested a permit to allow for the reconstruction of a pre-existing, nonconforming single family dwelling pursuant to G.L. c. 40A, § 6. The Zoning Board denied the application, citing law that provided that any nonconforming building or structure damaged by accidental causes may be repaired, reconstructed, or restored as long as it is completed within two years of the damage or destruction.
On appeal, the Land Court found that the plaintiff’s complaint was barred by the doctrine of res judicata, since it has been the subject of multiple, prior actions litigating the same claim and issues. Res judicata includes claim preclusion, which prohibits the same parties from re-litigating the same claim that was the subject of an earlier action between the parties, as well as issue preclusion, which prohibits the parties from re-litigating an issue that was already litigated in a prior action based on a different claim.
The plaintiff also contended that a recent decision of the appeals court in Gale v. Zoning Bd. of Appeals of Gloucester raised a new issue of law that could not have been raised in the previous decisions. In Gale, the court held that if a board finds, pursuant to G.L. c. 40A, § 6, that a proposed alteration to an existing nonconforming residential structure is not substantially more detrimental to the neighborhood than the existing nonconforming structure, a special permit will be granted, and a variance is unnecessary. The Land Court, however, explained that the case is inapplicable to the present dispute, in which the nonconforming structure was abandoned or extinguished by non-use. The court went on to state that variances are still required for the creation of any new nonconformity.
In addition, the plaintiff argued that the Zoning Board engaged in disparate treatment of similar properties that occurred after the last litigation, and he alleged that the Zoning Board has not been consistent in its rulings. The Land Court disagreed, concluding that this did not constitute a factual change that would support reconsideration of the action. The court also found that the properties cited by the plaintiff were distinguishable from the subject property. As a result, the court affirmed the ruling of the Zoning Board.
The Massachusetts real estate attorneys at Pulgini & Norton assist clients in a variety of property matters. Our knowledgeable lawyers can provide legal advice regarding land use and zoning issues, easements, mortgages, and other land transactions. To discuss your real estate needs with one of our skilled attorneys, call (781) 843-2200 or contact us online.
More Blog Posts:
Massachusetts Land Court Affirms Denial of Homeowner’s Application for Zoning Variance, Special Permit, Massachusetts Real Estate Lawyer Blog, published August 14, 2015
Appeals Court of Massachusetts Decides Easement Issue in Neighbors’ Dispute, Massachusetts Real Estate Lawyer Blog, published September 4, 2015