Posted by: Patricia Salkin | August 17, 2012

MA Land Court Holds Variance as Opposed to Special Permit is Required for Lot Alterations

The property in question is located in a Small Business Zoning District (SB District) and is comprised of an automobile repair and sales business as well as a gas station.The property is completely noncomforming in lot, structure and use and neither use is allowed as of right or with conditions, nor are they listed among those uses requiring a special permit. The property owners submitted an application for a special permit to convert the existing gasoline station / automobile repair / sales business to a gasoline station and convenience store by proposing to demolish the existing structure and construct an entirely new building. The Board approved the permit with conditions attached, and the owner appealed.

The Court noted that “the Board concluded that the proposed nonconforming structure intended to house the gas station / convenience store would reduce existing structural nonconformities. That structure would conform to one setback requirement, and reduce the lot coverage from 86.1% to 59.1%, well in excess of the 50% maximum.” Further, the Court commented that the Board members “found that the proposed use and new structure and site improvements were an improvement over existing conditions, and found that they were not substantially more detrimental to the neighborhood than the existing, nonconforming uses and structures, and voted unanimously to grant the request for a Special Permit.”

The Plaintiff argued that Board lacked authority to approve the Special Permit because it would result in a new dimensionally nonconforming structure and use. The defendants claimed, however, that the Bylaw was “permissive in spirit,” thereby allowing a change in a nonconforming use upon a finding by the Board “that any change will not be substantially more detrimental to the neighborhood than the existing nonconformity.” The Court stated “it is clear that, absent a variance, a preexisting nonconforming commercial structure, may be reconstructed, (extended or changed), only if it is first found to be in compliance with the Bylaw. Thereafter, if the Bylaw so permits, the local board may grant a special permit upon a finding that the proposed structural change is not substantially more detrimental to the neighborhood than existing nonconformities. The statutory authority conferred upon the town under c. 40A provides it with the power to … determine when an alteration has—or has not—occurred. However, the statute does not permit the town to ignore the legislative provision requiring conformity with current zoning requirements.” The Court concluded that the” Board’s decision is legally untenable and must be annulled,” holding that a variance, rather than a special permit, was required.

Harrison v. Fouhy, 2012 WL 2450776 (Mass.Land Ct. 6/26/2012)


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