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 of Gloucester (pdf), the Appeals Court concluded that, in the case of a single or two-family residence, a variance isn’t needed; such an alteration can be authorized with a finding that the alteration is not substantially more detrimental to the neighborhood than the prior nonconforming structure.
The landowner in Gale wanted to convert a 1,000 square-foot seasonal residence into a 2,700 square-foot year-round residence. The existing structure and lot, which predated the adoption of zoning, did not conform to zoning requirements for lot area and for front, rear and side yard setbacks. The proposed reconstruction called for an expansion of the building footprint, thus creating new zoning nonconformities.
The landowner applied for a special permit under Section 6 as well as a variance under a local bylaw that requires a variance whenever a footprint expansion does not conform to dimensional requirements. The board of appeals granted the special permit, finding that the proposed reconstruction will not be substantially more detrimental to the neighborhood than the existing nonconforming structure. The board also granted the variance.
An abutter appealed to the Land Court, claiming that the variance was granted in error. The Land Court ruled that the finding under Section 6 was sufficient to allow construction and that the variance wasn’t needed. On further appeal, the Appeals Court affirmed the Land Court decision and, in doing so, laid out a roadmap for interpreting Section 6 as it applies to alterations of single and two-family structures.
[The] framework provides that under the second “except” clause of the first paragraph of the statute, as concerns single or two-family residential structures, the permit granting authority must first “identify the particular respect or respects in which the existing structure does not conform to the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones. If the answer to that question is in the negative, the applicant will be entitled to the issuance of a special permit.” If the answer is in the affirmative, a finding of no substantial detriment under the second sentence is required. (Citations omitted).
The Gale decision correctly notes that the Supreme Judicial Court (SJC) decision in Rockwood v. Snow Inn Corp. (pdf) – which is cited by those who believe that nonconforming alterations need a variance – involved a commercial structure. Accordingly, the statement in Rockwood that the reconstruction of single or two-family structures must either comply with zoning requirements or receive a variance is dicta. Gale further notes that a more recent SJC decision, Bransford v. Zoning Board of Appeals of Edgartown (pdf), is consistent with Gale.
Bottom line: if you have a lawful pre-existing nonconforming one or two-family house that you’d like to expand or reconstruct, you can do so with a Section 6 finding, even though similar work would have required a variance if the land had been vacant.