Posted by: Patricia Salkin | March 16, 2015

MA Supreme Court Finds Variance Was Required When New Zoning Nonconformities Were Created By the Division of Land

The Plaintiff was the most recent owner of a lot in the town of Tisbury, which was created in 1994 by a division of land pursuant to the existing structures exemption. The plaintiff sought a permit to tear down the existing structure and build a new one, somewhat larger and taller than the existing structure. The permit was denied on zoning grounds, and the plaintiff appealed to the Land Court, which concluded that the § 81L division created new zoning nonconformities that deprived the plaintiff’s dwelling of the grandfathered status it might have had under the Zoning Act. As a result, the plaintiff, who sought to tear down and rebuild her dwelling approximately ten feet taller, was required to obtain a variance.

Although preexisting nonconforming status runs with the land, the introduction of a new nonconformity to a pre-existing nonconforming residential structure requires a variance. Here, the § 81L division created new zoning nonconformities as to lot size, frontage, and front yard setback, among others. Because the Zoning Act only permits changes to grandfathered structure sonly if the changes themselves comply with the ordinance or by-law, the Zoning Act did not render those new nonconformities lawful, and the 1995 variance was necessary to render the new nonconformities lawful. Because the proposed reconstruction in this case would have expanded nonconformities permitted by variance, the plaintiff was required to obtain a new or amended variance to proceed with her project. Since the plaintiff did not challenge the grounds on which the variance was denied, the court affirmed the holding of the Land Court in favor of the defendants.

Palitz v Zoning Board of Appeals of Tisbury, 2014 WL 7930410 (MA 3/3/2015)

The opinion can be accessed at:

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