Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

Real-Time News & Commentary on Massachusetts Land Use & Real Estate Law

Category Archives: Nonconforming Use

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When Is It Too Late to Force a Neighbor to Cure a Zoning Violation?

Posted in Nonconforming Use, Police Power, Subdivision Control, Zoning
Section 7 of Chapter 40A contains a statute of limitations for actions by individuals and municipalities to compel the removal, alteration, or relocation of any structure due to a zoning violation.  In Bruno v. Zoning Board of Appeals of Tisbury, the Appeals Court considered when the statute of limitations commences based on a zoning violation… Continue Reading

Appeals Court Ruling Confirms Grandfathering Protection for Former Cambridge Courthouse

Posted in Nonconforming Use, Zoning
Today the Appeals Court decided Gund v. Planning Board of Cambridge.  That case concerns the former location of the Middlesex Superior Court, an asbestos-filled, anomalous sky-scraper near Lechmere in Cambridge.  The building, which does not comply with zoning, has been sold to a developer.  At issue was whether the court house is a preexisting, nonconforming… Continue Reading

SJC Confirms That Zoning And Subdivision Control Are Two Different Animals

Posted in Nonconforming Use, Subdivision Control, Variances, Zoning
Last week the Supreme Judicial Court (SJC) issued its much-anticipated decision in Palitz v. Zoning Board of Appeals of Tisbury.  The fact that the high court took this appeal directly from the Land Court (bypassing the Appeals Court) caused some to wonder whether a dramatic change in the law on the relationship between zoning and subdivision control – especially with… Continue Reading

Fully Conforming Structure Not Tainted By Nonconforming Use

Posted in Nonconforming Use, Zoning
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… Continue Reading

Appeals Court Fixes One Anomaly In The Tricky Law Of Nonconforming Structures

Posted in Nonconforming Use, Variances, Zoning
In a previous post we discussed Gale v. Zoning Board of Appeals of Gloucester (pdf) and the “difficult and infelicitous” language of the first two sentences of M.G.L. c. 40A, § 6 governing nonconforming uses and structures.  In Gale, the Appeals Court upheld the grant of a special permit authorizing the reconstruction of a single-family house that increased… Continue Reading

Motive For Torching Of Spooner Road House Still A Mystery

Posted in Miscellaneous, Nonconforming Use, Zoning
For three years we’ve been following the saga of 81 Spooner Road, the Brookline property at the center of a contentious zoning dispute and, more recently, an arson investigation.  See our original post here, and our follow-ups here, here and here.  Now, a trio of Northeastern University journalism students under the supervision of their professor – former Boston Globe Spotlight Team editor… Continue Reading

Merger By Acquisition: Grandfathered Status Can Be Lost

Posted in Nonconforming Use, Zoning
In a decision that re-affirms its 2001 ruling in Preston v. Board of Appeals of Hull, the Appeals Court last week held that the grandfathered status of a lawful pre-existing nonconforming lot is not perpetual, and can be lost if the lot later comes into common ownership with adjoining land.  In such circumstances, the adjoining lots merge to the extent necessary to eliminate… Continue Reading

House In Spooner Road Case Goes Up In Smoke

Posted in Nonconforming Use, Standing, Zoning
The Brookline house at the center of a zoning controversy that resulted in an important 2010 Appeals Court decision (pdf) on nonconforming uses, “infectious invalidity” and standing, which in another important decision (pdf) was partiallly reversed by the Supreme Judicial Court, has been destroyed by fire.  Our prior posts on the case are here and here.  As reported by the Brookline… Continue Reading

Time Not A Vaccine Against Infectious Invalidity

Posted in Nonconforming Use, Zoning
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, § 7. In 1974 the plaintiff, Patenaude, acquired a… Continue Reading

Appeals Court Panel Reverses Approval of Change in Nonconforming Use

Posted in Nonconforming Use, Zoning
In an “unpublished” decision issued last week in Hambley v. Dalzell (pdf), a panel of the Appeals Court reversed a Superior Court decision that upheld a zoning board’s approval of a change in a lawful nonconforming use.  Rejecting the Superior Court’s deferential analysis, the panel ruled that a 1988 change in the use of the property to a machine shop was not “substantially similar”… Continue Reading

Wayside No Longer Waylaid: SJC Reverses Appeals Court In Nonconforming Use Case

Posted in Nonconforming Use, Zoning
We reported in November, 2010 on the Appeals Court’s decision in Shirley Wayside L.P. v. Board of Appeals of Shirley (pdf).  To our surprise, the Supreme Judicial Court (SJC) granted further appellate review and, in a decision (pdf) issued earlier this month, the SJC reversed the Appeals Court. The facts of the case aren’t unusual.  The defendant Shirley Board of Appeals… Continue Reading

Epic 16-Year Zoning Battle Ends with Court-Ordered Demolition of Seaside Mansion

Posted in Nonconforming Use, Zoning
Yesterday at 7:15 a.m. a giant excavator began tearing down Wayne Johnson’s 5,000 square-foot seaside home, which stood at the center of a 16-year zoning battle in Marblehead, Massachusetts.  The dispute is described in our related post here.  A sampling of local news coverage, including some dramatic video of the demolition, can be found here and here (warning: this video may… Continue Reading

When The Judge Says You’re Building At Risk, You Should Listen

Posted in Miscellaneous, Nonconforming Use, Zoning
Wayne Johnson’s epic battle to save his house from the wrecking ball appears to have come to an end, after 16 years of litigation involving four different Land Court Judges.  In his November, 2011 decision in Schey v. Johnson (pdf), Judge Keith Long ordered the demolition of Johnson’s waterfront residence in Marblehead.  To ensure compliance, Judge Long ordered Johnson to enter… Continue Reading

The Benefits of Owning a Pre-existing Nonconforming House

Posted in Nonconforming Use, Zoning
Since its inception, the first paragraph of M.G.L. c. 40A, sec. 6 (Section 6) has confused lawyers, landowners and judges alike.  One question that has arisen is whether a variance is needed in order to alter a pre-existing nonconforming structure, where the alteration creates new nonconformities or exacerbates existing ones.  In Gale v. Zoning Board of Appeals… Continue Reading

Grandfathering Gets A Haircut

Posted in Nonconforming Use, Zoning
In 2007, when the Supreme Judicial Court (SJC) decided Rourke v. Rothman (pdf), it seemed clear that the court was endorsing the principle that a local bylaw exemption from the effects of the common law zoning merger doctrine could itself give rise to grandfathering protection under M.G.L. c. 40A, sec. 6 (pdf) (Section 6).  A recent Appeals Court decision, Kimmett v. Town of Tolland, attempts to distinguish… Continue Reading

If It Looks Like Zoning, It’s Probably Zoning

Posted in Miscellaneous, Nonconforming Use, Zoning
Believing that excessive off-street parking has a negative impact on the character of residential neighborhoods, the Town of Barnstable adopted a general bylaw that limits the number of vehicles that can be parked overnight in residential districts.  A disgruntled resident filed suit, alleging that the town was attempting to impose a zoning regulation without complying with the procedures in M.G. L. c.… Continue Reading

Update: SJC Seeks Amicus Briefs in Nonconforming Use and Dover Amendment Cases

Posted in Nonconforming Use, Zoning
The Supreme Judicial Court (SJC) has granted further appellate review and is requesting amicus briefs in the case of Shirley Wayside, L.P. v. Board of Appeals of Shirley.  In this case, the Appeals Court upheld the defendant zoning board’s denial of a permit that would allow the plaintiff to expand a lawfully nonconforming mobile home park.  Our prior… Continue Reading

“Sorry” Is Not a Defense: Appeals Court Affirms Order to Tear Down Nonconforming Structure

Posted in Nonconforming Use, Standing, Zoning
The Appeals Court has affirmed a Superior Court judgment ordering that a house built in violation of both zoning and a previous Superior Court judgment be torn down.  In Cornell v. Michaud (pdf), the defendant Michaud owned several parcels on Harris Pond in Blackstone, Massachusetts.  Some of the lots had been reconfigured and been granted a… Continue Reading

“Dude, Where’s My Grandfathering?” Partial Taking Destroys Protected Status

Posted in Eminent Domain, Nonconforming Use, Zoning
In its recent decision in Johnson v. Board of Appeals of Andover (pdf), the Appeals Court affirmed a Land Court ruling that a 1971 eminent domain taking of part of a lot destroyed the lot’s grandfather protection under M.G.L. c. 40A, § 6 (pdf) (Section 6).  The court noted that, when this occurs, the owner is entitled to seek compensation for any diminution in value attributable to the… Continue Reading

Supersize It: Enlarged Appeals Court Panel Upholds Denial of Permit by 3-2 Vote

Posted in Nonconforming Use, Zoning
Substantively, the Appeals Court’s recent decision in Shirley Wayside L.P. v. Board of Appeals of Shirley (pdf) reflects a routine zoning case.  Here’s what happened: The defendant Board of Appeals denied a request to expand a mobile home park, a lawfully non-conforming use.         The Board’s written decision cited typical reasons for denying the permit:  impacts on the school system,… Continue Reading

Doctor, Doctor, (Don’t) Give Me the News: Appeals Court Diagnoses “Infectious Invalidity”

Posted in Nonconforming Use, Standing, Zoning
While many legal doctrines have poetic names (ancient lights, fruit of the poisonous tree), few are as vivid as “infectious invalidity.”  At its simplest, this land use doctrine holds that an owner of an existing lot that is legally non-conforming with zoning (say, because it doesn’t meet increased lot area requirements) who also owns adjoining land cannot lawfully create a… Continue Reading