Posted by: Patricia Salkin | March 21, 2013

MA Appeal Court Finds City May Create Grandfather Provision Protecting non-conforming Adjacent Lots From Merger

been held in common since 1916. One lot contained a residence, and the other a garage. Both lots became pre-existing nonconforming lots in 1940 when the City of Newton, Mass, adopted frontage and lot size requirements. Current zoning requires that such lots have at least 80 feet of frontage, at least 10,000 square feet of lot area, and side setbacks of at least 7.5 feet. Historically, the Chanskys’ garage lot had been treated as unbuildable. However, in August 2009, the city building inspector issued a building permit to the Chanskys allowing them to construct a residence on the garage lot.

Abutting landowners Maureen and Ronald Mauri appealed to the zoning board of appeals, challenging the issuance of a building permit, arguing that the residence would be located too close to the Mauris’ existing home and asserting that the garage lot was not buildable. The proposed dwelling was expected to be substantially larger than the existing garage, with two stories, 13 windows facing the Mauris’ home, and only 7.5 to 10 feet between the new home and the Mauri home. While the proposed dwelling technically complied with setback requirements, the Mauris argued that the home should not be allowed, as it would increase the density of residences in an area which already did not conform to local density and lot size requirements.

The ZBA voted 3-to-2 to overturn issuance of the permit but, since local law required a supermajority vote of four to overturn a building permit, the permit issuance was affirmed. The Mauris appealed to the Massachusetts Land Court, which held that the Mauris had standing to challenge the permit. The Land Court then reversed the ZBA’s decision and revoked the building permit, finding that the application of the rules of grammatical construction could not support the city’s determination that the garage lot was buildable. The Chanskys here appeal.

On appeal, the Chanskys challenged the Mauris’ standing to challenge the building permit, arguing that the Mauris suffered no diminution in property value and thus had no redressable injury. The Chanskys also challenged the lower court’s interpretation of the city ordinance, and its ultimate conclusion that the garage lot was unbuildable. On the matter of standing, the court held that the Mauris had a valid argument that overcrowding may result from permitting increased residential density in the neighborhood, and that this argument was sufficient to give standing to the Mauris as abutting landowners.

The appellate court then reviewed the lower court’s grammatical interpretation of the city’s grandfathering provision to determine whether the ordinance’s protection for adjoining nonconforming lots applied to the Chanskys’ garage lot. The grandfathering provision protected adjoining nonconforming lots from changes in lot dimension and area requirements, providing those lots were improved by a single-family residence. However, there was some ambiguity in the ordinance as written, leading to confusion about whether the protection applied to the lot on which the residence was located–the home lot–or whether it also protected the adjoining lot–the garage lot. The Chanskys contended that the protection applied to both lots, giving them the right to build a residence on the garage lot. The Mauris contended that the protection applied only to the lot improved by the residence, not the garage lot, and thus that the Chanskys could not build on the garage lot. The lower court, applying the rule of the last antecedent, held that the protection only applied to the home lot, not the garage lot, and that the garage lot was unbuildable. The appellate court upheld this interpretation as reasonable, and noted it would not lead to an illogical result or create “great havoc” in the city if applied in that manner in the future. Thus, the lower court’s interpretation was affirmed.

Mauri v. Zoning Board of Appeals of Newton, 83 Mass. App. Ct. 336 (Mass. App. Ct. 2/2/13)

The opinion can be accessed at:

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: