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Massachusetts Agencies

Nonconforming Lot: Expansion of Structure

Zoning

In a rare "split" 3-to-3 tie vote, the Supreme Judicial Court in Bransford v. Zoning board of Appeals of Edgartown, — Mass. —, — N.E.2d — (2005) has caused a land court decision to stand that held that erecting an addition to a structure on a footprint larger than the existing structure, even though the structure would still comply with all setback, side yard and other dimensional requirements, is not allowed where the lot on which the structure is to be erected is a nonconforming lot.

The facts of the case were that when the existing structure was erected by a prior owner it was done so on a lot that then complied with zoning. The zoning required a lot of at least 21,780 square feet and the then owner's lot contained more than that amount, namely 22,125 square feet. However, after the construction of the house the minimum lot size in the zoned area was increased to 65,340 square feet. Since the lot was "grandfathered," this increased requirement did not have an adverse effect upon the continued existence of the structure.

After the property was sold to the present owners they decided to put an addition on the existing structure. The addition, as proposed, would comply with all zoning by-law requirements, with the exception of the 65,340 minimum lot area requirement. The building inspector refused to issue a permit, and the owners appealed to the zoning board, claiming that the permit should have been issued based on the provisions of G.L.c.40A, §6, that provides:

[Changes in a zoning law or ordinance] shall apply to . . . any reconstruction, extension or structural change of [a] structure . . . after [the zoning law or ordinance change] except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure.

The zoning board permitted the erection of the addition, provided it was located within the footprint of the existing structure, notwithstanding the fact that the proposed improvement would not violate any zoning provisions applicable to the lot (although the lot itself was undersized). When a special permit was denied the owners brought suit.

The land court ruled, and one "side" of the high court agreed, that "where an undersized lot exists, the proposed reconstruction may be allowed without special permit only if the proposed new residence does not intensify existing nonconformities." This "side" of the court said:

The expansion of the residence's footprint, and the expansion in living area, will, at the very least, tend to reduce the open space previously existing on the lot and to increase the density of the residential neighborhood.

Creating a distinction in treatment between a nonconforming structure and a nonconforming lot is one that analytically and practically should not be made.

The other "side" of the court saw the issue this way:

A 2,400 square foot structure on an undersized lot is equally as nonconforming as a 1,200 square foot structure on the same size lot. It is lot size, not building size, that is at issue.

The nature of the home's nonconformity will remain unchanged and unaffected by the proposed improvements. The home will be neither less nor more nonconforming.

In a practical fashion, the court (Justice Cordy) wrote:

[There are a] multitude of citizens who own homes in cities or towns that, at some point, have attempted to limit growth by increasing minimum lot sizes, often dramatically. The need to secure findings or special permits through lengthy, costly and discretionary local zoning processes for any improvement that might increase the living space or footprint of a home may put such improvements out of reach for many homeowners.