Posted by: Patricia Salkin | March 25, 2012

Massachusetts Land Court Upholds Granting of Special Use Permit for Expansion of Nonconforming USe

Plaintiff’s neighbor sought and obtained a special use permit to add a sloping second story to a single story residence that was a legal nonconforming use.  Massachusetts law permits the expansion of a nonconforming use by way of special use permit, where the applicant shows “such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood.”  The ZBA determined that the applicant made a sufficient showing and granted the permit.  The plaintiff challenging this grant, claiming the new construction will affect the plaintiff’s view of the ocean, impact his privacy, and would result in his backyard being more enclosed. 

In looking to the special use permit application and the ZBA’s determination, the Land Court found the permit was properly granted as it conformed to state law.  Specifically, the court observed that: that the application complied with the purpose of Marblehead’s bylaws; the site is appropriate for expansion, making it more compatible with the neighborhood; there are no adverse affects to the neighborhood; there will not be a nuisance or hazard to vehicles or pedestrians; and, “adequate and appropriate facilities are provided.”  The Land Court also provided that the proposed change to the nonconforming use would not affect the footprint of the current structure and would merely add an addition story to the side of the house furthest away from the plaintiff’s lot.  Thus, the affect on the plaintiff’s property is minimal – the effects complained of existed prior to the grant of the permits or would not materialize at all – and the Land Court found the plaintiff’s contentions without merit.

Herman v. Moriarty, 2012 WL 611197 (Mass. Land Court, 2/27/2012)

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