Posted by: Patricia Salkin | January 14, 2008

MA Supreme Court Finds Proposed Reconstruction of House on Nonconforming Lot is Substantial and Comments on “Mansionization” and Affordable Housing

The law that has developed on the subject of nonconforming uses is state-specific and varies considerably as some states have specific enabling statutes and other states leave it to local governments to address the subject in municipal zoning regulations. Massachusetts, for example, has a statewide statute addressing nonconforming uses.  In a recent Supreme Court case, a question of statutory interpretation focused on whether a proposed a reconstruction of a home, which satisfies all dimensional requirements of the town of Norwell’s zoning bylaw except the required minimum lot size, “increase[s] the nonconforming nature of [the] structure” within the meaning of the language contained in the second “except” clause of G.L.c. 40A, §6, first par., and therefore requires the plaintiffs to seek a special permit.  

At issue was a proposal to quintuple the size of an existing residence that was situated on less than the required one-acre parcel of land. The plaintiffs proposed to remove a 675 square foot house and replace it with a 3,600 square foot residence.  The zoning board of appeals determined that the proposed reconstruction would increase the nonconforming nature of the structure and that it would be substantially more detrimental to the neighborhood than the existing structure.  It was determined that the reconstruction would exacerbate the present nonconformity of the property because of the proposed new house length, height and placement. While the plaintiffs did not challenge the determination that the reconstruction would result in a substantial detriment to the neighborhood, they argued that under the statute, the proposed reconstruction did not increase the nonconforming nature of the structure.  The Court distinguished what it believed to be “small-scale” alterations, extensions or structural changes to a nonconforming preexisting house.  Examples of this type of alteration, the Court said, could include, “…addition of a dormer; the addition, or enclosure, of a porch or sunroom; the addition of one-story garage for no more than two motor vehicles…and the addition of small-scale, proportional storage structures, such as sheds used to store gardening and lawn equipment, or sheds used to house swimming pool heaters and equipment.” The Court explained that these types of uses could not reasonably be found to increase the nonconforming nature of a structure, and therefore, as a matter of law, would not constitute intensifications. However, more substantial improvements or reconstructions, such as the proposal at issue, would require approval under the statute. 

In an interesting commentary at the end of the decision, the Court explains, “Our decision recognizes that many municipalities do not welcome the building of structures that represent the popular trend of ‘mansionization.’”  The Court explained that, “The expansion of smaller houses into significantly larger ones decreases the availability of would-be ‘starter’ homes in a community, perhaps excluding families of low to moderate income from neighborhoods.” The Court further notes that municipal efforts to limits these potential adverse effects is consistent with State policy and concern for the critical need for affordable housing.   

 Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357, 2008 WL 53549 (1/7/2008). 

The opinion can also be accessed at:   

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