In a case of first impression, the Appeals Court recently ruled that a dimensionally conforming structure used for a nonconforming use can’t be considered a nonconforming structure under M.G. L. c. 40A, § 6 (Section 6), first paragraph. The case is Welch-Philippino v. Zoning Board of Appeals of Newburyport (pdf).
Under Section 6, the alteration or extension of a pre-existing nonconforming commercial structure triggers the need for a so-called Section 6 finding, which is a finding that the proposed structural changes will not be substantially more detrimental to the neighborhood than the existing structure.
Welch-Philippino involved the proposed renovation and modernization of a nursing home in Newburyport. As with the existing nursing home structure, the new structure would comply with all dimensional requirements of the Newburyport zoning bylaw. The nursing home use pre-dates zoning and is lawfully nonconforming.
An abutter appealed a special permit authorizing the project to proceed. The abutter argued that a fully conforming structure used for a nonconforming use should be treated as a nonconforming structure under Section 6, and therefore require a Section 6 finding. The Land Court rejected that argument, finding no support for it in the statute. Instead, the court ruled that the proposed new structure is – and thus should be treated as – a fully conforming structure. According to the Land Court, where a change or extension of a nonconforming use is proposed, the proper procedure is to apply the so-called Powers test, derived from the 1973 case Powers v. Building Inspector of Barnstable (pdf). Applying that test, the Land Court found that the project is allowed as of right because it does not amount to a change or substantial extension of the lawfully nonconforming commercial use. The Appeals Court agreed.
Welch-Philippino adds another smidgen of clarity to the law of nonconforming structures and uses in Massachusetts. However, this body of law will continue to be a source of confusion for landowners and abutters – and a source of fees for land use litigators – until the Legislature amends the “difficult and infelicitous” language of Section 6. For more on Section 6, see our prior posts here and here.