Posted by: Patricia Salkin | June 15, 2012

MA Land Use Court Holds Homeowner May Not Increase Nonconformity by Adding to Existing Third Story and that the Board Properly Denied Variance Request

Carmine Sodano applied for a permit to construct a dormer on his roof, extending the top half-story of his 2 ½-story home to create a full third story.  The construction project would not have changed the building footprint, but it would have extended the top half story sufficiently for Sodano to use the upstairs as a residence, leaving the bottom stories available to house his aging mother. 

Sodano had previously applied for and was issued a permit in 1997 to raise the left side of his roof and change the top story attic space into a small room.  In 2008, Sodano sought to raise the right side of his roof, to create a full third story on the home.  However, because the home was located in a Residential A zoning district which allowed residences no greater than 2 ½ stories, Sodano’s permit was denied as not being in accordance with Town zoning laws.  He appealed to the Board of Appeals and, after a hearing, the Board upheld the permit denial, finding that Sodano’s 1997 project had created half of an illegal third story, and that he was not entitled to increase the nonconformity of the building by extending the third story any further.  Sodano appealed.

The Massachusetts Land Court reviewed the zoning ordinance, which stated that “no existing building may be altered to exceed 2 ½ stories, not to exceed 35 feet” in the Residential A zone.  Therefore, the court concluded that increasing the size of Sodano’s third story would not comply with the zoning and would require a variance.  In fact, the construction completed under the 1997 building permit also caused Sodano’s property to fall outside compliance with the zoning regulations, however that construction was protected by lapsed statutes of limitations. 

Sodano had argued that his residence was already a legally-protected non-conforming three-story residence, and that he should be able to expand it under a new permit.  The court disagreed.  While it was true that the construction completed under the 1997 permit was non-conforming but protected, the court said that did not give Sodano a right to increase the non-conformity by adding to the already improper third story.

In order to qualify for a variance, the Board interpreted the law to require that Sodano demonstrate either that there were factors such as soil conditions, or the shape of his lot which affected his residence in a way that other properties in the zoning district were not affected, thus justifying a variance, or else that enforcement of the zoning requirements and denial of the variance would cause a substantial hardship.  The Board had held that Sodano’s land did not contain any of the unique circumstances which made his property different enough to justify a variance, nor was he able to show a substantial hardship.  The court agreed, holding that Sodano was able to put his property to good use as a two-family residence, and that he was merely prevented from adding square footage to the second residence because of the permit denial.  The mere fact that Sodano wanted the variance to make the resident more spacious and comfortable did not justify issuance of a variance, according to the court.  The denial was upheld.

Sodano v. Marks, 2012 WL 1345314 (Mass. Land Ct. 4/17/12)

The opinion can be accessed at:

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