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 regard to pre-existing buildings – was in the works. In the end, the court largely stuck to the path marked by prior decisions. My colleague Jesse Abair and I filed an amicus brief on behalf of the Massachusetts Association of Regional Planning Agencies, the Massachusetts Association of Planning Directors, Inc., the Massachusetts Chapter of the American Planning Association, and the Martha’s Vineyard Commission.
Palitz concerned land in Tisbury (on Martha’s Vineyard) shown on a plan that the town’s planning board in 1994 endorsed “Approval Not Required” (ANR). The basis for the ANR endorsement was a provision in the Subdivision Control Law which exempts from that law a division of land on which there are two or more pre-existing buildings (i.e., buildings in existence before the town adopted the Subdivision Control Law) so that, after the division, there is one building on each new lot. This is known as the “existing building” exemption. In connection with this ANR endorsement the owner also obtained a variance because the resulting lots violated setback and lot size requirements of the zoning bylaw.
In 2012 Palitz, who owned one of the lots, sought to rebuild her 200-year-old house. The new house would retain the same footprint as the old one but would be almost 10 feet higher and would include a basement. The building inspector refused to issue a building permit until Palitz obtained a new or amended variance. When Palitz applied for such a variance she was denied. She appealed that denial to the Land Court, arguing that she didn’t need a variance because her house was a lawful pre-existing, nonconforming structure that was grandfathered under the state Zoning Act, M.G.L. c. 40A, § 6 (Section 6). The Land Court disagreed and upheld the local decision.
The SJC affirmed the Land Court, holding that the prior variance “cannot serve as a launching pad for the expansion of zoning nonconformities” through use of the grandfathering protections in Section 6. Thus, Palitz’s project did require a new or amended variance. However, the SJC found no reason to disturb the Land Court’s conclusion that her variance application was properly denied.
The cases on pre-existing uses and structures are a dense thicket, and Palitz is no exception. Had Palitz’s predecessor not used the “existing building” exemption to obtain an ANR endorsement placing her house on its own lot, it’s possible Palitz would have been able to rebuild the house using the protections afforded by Section 6 – a much easier task than meeting the notoriously difficult variance standard. Indeed, that was Palitz’s principal argument. But those protections were lost when her predecessor created a new lot through the “existing building” exemption of the Subdivision Control Law, and then obtained a variance to excuse the resulting zoning violations. This is so even though Palitz’s 200-year-old house itself didn’t change. Palitz confirms that zoning and subdivision control are two different animals that must be addressed on their own terms.