116 N.E.3d 17
Mass.2019Background
- Defendants (Jewhurst & Zuker) own a unit in a two‑family house in Brookline with a preexisting nonconforming floor area ratio (FAR 1.14; zoning max 1.0).
- They sought to convert a hip roof to a gable roof and add a dormer, creating 677 sq ft and increasing FAR to 1.38.
- Building commissioner denied a permit; defendants obtained a special permit from the Zoning Board of Appeals, which found the change would not be substantially more detrimental to the neighborhood.
- Abutting neighbors (Bellalta & Burnard) challenged the board’s special permit in Land Court, arguing a variance was also required because the bylaw does not permit the FAR increase; Land Court upheld the board; plaintiffs appealed.
- The legal question centered on construction of G. L. c. 40A, § 6 (the second "except" clause) and whether owners of single‑ or two‑family preexisting nonconforming structures need a variance in addition to a no‑substantial‑detriment finding to intensify a nonconformity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a homeowner who increases a single‑ or two‑family preexisting nonconformity must obtain a variance in addition to a finding under G. L. c. 40A, § 6 that the change is not substantially more detrimental | Plaintiffs: § 6 does not exempt defendants from municipal bylaws; because local bylaw does not allow the FAR increase, a variance is also required. | Defendants: § 6’s second except clause allows intensification of nonconformity upon a finding of no substantial detriment; a variance is not required. | Court: § 6 requires the permit authority to find no substantial detriment but does not require a variance; judgment affirmed. |
Key Cases Cited
- Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (Mass. App. Ct. 1985) (articulated early framework for construing § 6 second except clause)
- Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (Mass. App. Ct. 1987) (described the two‑step inquiry whether a proposed change increases nonconformity and then, if so, whether it is substantially more detrimental)
- Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (Mass. 2005) (discussed entitlement to permit when no intensification and endorsed Fitzsimonds/Willard framework)
- Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (Mass. 2008) (adopted and applied the interpretive framework for § 6)
- Rockwood v. Snow Inn Corp., 409 Mass. 361 (Mass. 1991) (recognized special protection for single‑ and two‑family residences but involved a commercial inn; court clarifies dictum does not control here)
- Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 (Mass. App. Ct. 2011) (held variance not required in addition to no‑substantial‑detriment finding for single‑ or two‑family intensification)
- Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 (Mass. App. Ct. 2014) (reiterated that intensifying alterations to residential nonconformities may be authorized upon a no‑substantial‑detriment finding)