In an “unpublished decision” in Patenaude v. Zoning Board of Appeals of Dracut (pdf)an Appeals Court panel recently held that a lot rendered unbuildable by infectious invalidity was not “cured” by the passage of time – specifically, the running of the 10-year statute of repose under M.G.L. c. 40A,this is gonna hurt § 7.

In 1974 the plaintiff, Patenaude, acquired a lot in Dracut that had been created from a larger tract.  Although Patenaude’s lot itself met all then-applicable zoning requirements, the remainder lot was left with less land area than required.  As a result, Patenaude’s lot was unbuildable due to infectious invalidity (see explanatory post here).  Under that doctrine, a portion of Patenaude’s lot was deemed to have “merged” for zoning purposes with the remainder lot, to lessen the remainder lot’s nonconformity.

In 1987 the town amended its zoning by-law, causing Patenaude’s lot to become nonconforming as to lot size.  In 2010, Patenaude applied for a building permit.  Patenaude argued that the lot’s infectious invalidity was cured in 1984, when the 10-year statute of repose under M.G. L. c. 40A, § 7 lapsed.  Patenaude also argued that his lot was protected from the 1987 zoning amendment by the grandfathering protection of M.G. L. c. 40A, § 6.

The panel rejected both of Patenaude’s arguments.  It noted that under M.G.L. c. 40A, § 7, expiration of the 10-year period does not erase an illegality; it simply protects the lot from enforcement action, such as an order to remove an unlawful structure.  It also ruled that an unremedied violation could not serve as a “launching pad” to obtain grandfather protection under M.G.L. c. 40A, § 6, which is reserved for lots that, are the time of a zoning change, legally conforming.