Posted by: Patricia Salkin | February 17, 2015

MA Land Court Finds No Nonconforming Use Status for Building Destroyed by Hurricane Bob Due to Abandonment

In 1991, Hurricane Bob destroyed, leaving vacant, what was once a lawful prior nonconforming single family dwelling located on a waterfront lot in the Swifts Beach area of Wareham. In a consolidated appeal, the question presented was whether there was a right to rebuild on the property. The Massachusetts Land Court Department found that the new owner had no right to rebuild, recreate, or replace the nonconforming residential structure formerly on the property as that right had been abandoned.

Noting that Section 6 of G.L. c. 40A protects “structures or uses lawfully in existence or lawfully begun” from subsequent changes in zoning ordinances and bylaws. The Bylaws similarly protect lawfully preexisting nonconforming uses and structures in certain circumstances. These protections, however, do not apply to uses or structures that have been abandoned. While Section 6 of G.L. c. 40A permits municipalities to establish provisions that protect the right to carry out alteration or reconstruction of nonconforming structures, municipalities also are authorized to “define and regulate nonconforming uses and structures abandoned or not used for a period of two years or more.” G.L. c. 40A, § 6. In the instant case, Bylaw § 1341 restricts nonconforming uses abandoned or not used for a period of two years or more. The Bylaws, however, did not include a similar time limitation as to nonconforming structures. Massachusetts law distinguishes abandoned nonconforming uses from abandoned nonconforming structures. Section 6 of G.L. c. 40A did not explicitly cause current zoning requirements to apply to abandoned or unused uses or structures if a municipality has elected not to regulate in this area. Massachusetts appellate courts, however, have decided that after sufficient time passes, abandonment will apply apart from local bylaws, even if there be no specific time limit in the municipal law.

The court ruled that Bylaw § 1341 by its words applied only to uses, not structures. The court stated that Wareham Bylaws do not enumerate a period of years after which a once lawfully nonconforming structure would be considered to have been abandoned if not rebuilt. The court stated, “abandonment may be found apart from ordinance.” The court concluded that abandonment “apart from the bylaw” was applicable here.

Next the court turned to determining whether abandonment had taken place. The court stated that abandonment requires a showing of “(1) the intent to abandon and (2) voluntary conduct, whether affirmative or negative, which carries the implication of abandonment,” and noted that “Lapse of time is not the controlling factor, although it is evidential, especially in connection with facts showing an intent to discontinue the use.” Therefore, “an owner can by his diligent efforts have some control over a period of vacancy, and if he allows an extended time to elapse with only desultory and equivocal action in the meantime, he runs the risk of a sustainable finding of abandonment and discontinuance.” Dobbs v. Board of Appeals of Northampton, 339 Mass. 684, 687 (1959).

Other factors such as “evidence that a property has not been maintained, secured, or protected may be viewed as consistent with, if not indicative of, an intent to abandon.”
The court stated that Chiaraluce had the burden of showing that the nonconforming structure had not been abandoned, and here he failed to sustain this burden. The Court noted that an individual cannot continually let pass available opportunities to rebuild, allowing a property to lie vacant for decades, and then take advantage of a bylaw adopted by the town over fifteen years after the destruction of the original nonconforming structure.

The Court found that the original owners formed an intent to abandon rights to reestablish a dwelling structure after the hurricane’s destruction, noting that although the previous owners applied for and received a permit to reconstruct the dwelling on the property, no action was taken by the family to rebuild. Further, the sale of the property to Chiaraluce demonstrated intent to abandon rights to proceed with reconstruction of the dwelling. The owners sold the property for consideration of only $5,000. Chiaraluce admitted during testimony that the property was purchased with the intent to use it as a parking area to accommodate occupants of his residential building next door. This demonstrated an intent on the part of both the original owners and Chiaraluce not to maintain or preserve any still existing ability to reconstruct the prior nonconforming dwelling on the property.

The unexplained eight year period in which Chiaraluce repeatedly missed opportunities to reconstruct a dwelling on the property was the most clear demonstration of the intent to abandon the structure. Although the “blanket permit” rebuilding rights secured by the Olsens was still in effect in 1993 when Chiaraluce purchased the property, no action was taken to preserve or extend the permit to build. Instead Chiaraluce let the permit lapse. Chiaraluce took no action consistent with a desire to preserve the nonconforming structure for nearly eight years. By the time he did apply for a building permit, the better part of ten years had elapsed following the demolition of the hurricane-damaged cottage. The total inaction by Chiaraluce and the long stretch of years beyond the expiration of the extended permit with no real effort or resources expended in the direction of rebuilding, indicated abandonment.

The Court reiterated that with only specific exceptions, zoning regulations are used and intended to fulfill the legislative goal of “eventual elimination of nonconforming uses.” Nonconforming uses and structures are disfavored by the legislature which, subject to carefully defined statutory protections, encourages bylaws that “extinguish nonconforming uses” and structures. See Bartlett v. Board of Appeals of Lakeville, 23 Mass.App.Ct. 664, 667 (1987). In a shoreline community such as Wareham, zoning restrictions serve to mitigate adverse residential concerns such as excessive density and overcrowding.

Chiaraluce v. Ferreira, 2014 WL 7466508 (Mass. Land Ct. 12/ 31/2014)

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