Posted by: Patricia Salkin | August 6, 2014

MA Appeals Court Holds the Introduction of a New Nonconformity Would Require a Variance Not a Special Permit

The Chandlers had purchased property located at 24 Windmill Lane in Chatham, Massachusetts containing a single-family home. The structure was built in approximately 1929 and is located within a residential R–40 district and in a coastal conservancy district. The structure is 19.2 feet high above grade, and contains 2,161 square feet of living space. The Chandlers’ property is nonconforming as to lot size and building coverage, and contains additional dimensional nonconformities with respect to its frontage, front yard setback, and side yard setback. On December 31, 2007, John V.C. Saylor, Georgia A. Saylor, Peter Hallock, Edwin J. Deadrick, and Mary Anne Hall Deadrick filed their complaint appealing from the board’s decision to grant a special permit to the Chandlers. The defendants, Robert Jeffrey Chandler and Jayne Kerry Chandler (collectively the Chandlers), appeal from the entry of summary judgment by a judge of the Land Court that reversed a decision of the zoning board of appeals of Chatham (board). The board had granted the Chandlers a special permit allowing them to reconstruct a pre-existing nonconforming structure on their nonconforming lot. However, the judge reasoned that, since the new structure created an additional nonconformity as to its height, the project required a variance rather than a special permit.

Under G.L. c. 40A, § 6, pre-existing nonconforming structures or uses may be extended or altered, provided, that “no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood”. However, the court construed the provisions of the first and second sentences of § 6 together to allow extension of existing nonconformities upon a showing of no substantial detriment, but to require a variance for the creation of any new nonconformity.

Thus, the matter was remanded to the Chatham zoning board of appeals to determine whether the Chandlers’ proposed new structure is eligible for the exemption provided under § IV.A.3 of the Chatham by-law from otherwise applicable height limitations.

Deadrick v Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 (MA App. 6/25/2014)


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