11 N.E.3d 647
Mass. App. Ct.2014Background
- Chandlers sought to replace a 1929 nonconforming house on a nonconforming lot with a taller structure; height exceeds 20 feet in the coastal conservancy district; FEMA velocity zone requires pilings and elevation; exemption § IV.A.3 may apply if the new structure is not an “expansion”; board granted a special permit, allowing reconstruction within existing footprint but height increased; Land Court reversed, finding a variance required for new nonconformity; on remand, issues included whether § IV.A.3 was considered and whether new nonconformities require a variance; Court remanded for determinations on § IV.A.3 eligibility by the ZBA.
- Procedural posture included the original suit challenging the board’s decision, a 2011 unpublished Hallock decision on standing, and a 2013 remand with cross-motions for summary judgment; the district judge determined no standing but this was reversed on appeal; the current appeal centers on zoning interpretation and variances vs. exemptions.
- The structure’s height increase (27.2 ft) creates a new nonconformity unless exempted by § IV.A.3; the old nonconformities remain; the board did not clearly determine § IV.A.3 applicability in its decision; the issue of whether creation of a new nonconformity requires a variance is central.
- The opinion discusses the interplay of the first and second sentences of G. L. c. 40A, § 6, in single/two-family residential contexts; it emphasizes deference to local bylaw interpretation but disallows assuming § IV.A.3 applicability without explicit board determination; it ultimately remands for the board to decide eligibility for the § IV.A.3 exemption.
- The litigation also addresses standing of the Deadrick heirs, later substituted by Frye, and their relation to the alleged harm from the project; standing issues are resolved in favor of the Deadrick heirs based on their ongoing ownership interest.
- The decision clarifies that if § IV.A.3 applies, no new nonconformity exists and a variance is not required; otherwise, a variance is necessary for the new height nonconformity.
- The case thus centers on the proper application of the height exemption, the creation of new nonconformities, and remand to the ZBA for further determinations on § IV.A.3 eligibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § IV.A.3 applicability was considered by the ZBA in the special permit decision | Chandlers argue the board did not determine § IV.A.3 applicability | Board did not expressly decide § IV.A.3 applicability | Remanded for § IV.A.3 eligibility determination |
| Whether adding a new nonconformity requires a variance, not a mere no-substantial-detriment finding | Chandlers contend no new nonconformity; no variance needed | Board could rely on no substantial detriment for changes | New nonconformity requires a variance; remand |
| Whether the board’s interpretation of § IV.A.3 should control, given deference to local bylaw interpretation | Board’s interpretation should be respected | Board’s interpretation may be reviewed for reasonableness | Remand allows board to interpret bylaw first; not reviewable here |
| Whether the Deadrick heirs have standing to pursue the case on remand | Substitution and standing raised by Frye and heirs | Deadrick heirs have standing due to ownership interests | Standing recognized; remand proper |
| Whether the project is eligible for the § IV.A.3 exemption so it can proceed by special permit | If eligible, no variance; proceed under § V.B | If not eligible, variance required | Remand to determine § IV.A.3 eligibility before final judgment |
Key Cases Cited
- Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852 (Mass. 2005) (creation of new nonconformity requires variance or no substantial detriment finding)
- Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (Mass. 2008) (initial determination by building inspector; Bransford concurring approach adopted)
- Rockwood v. Snow Inn Corp., 409 Mass. 361 (Mass. 1991) (new nonconformity triggers variance; first and second sentences of § 6 read together)
- Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331 (Mass. App. Ct. 2011) (second exception clause; no substantial detriment allowed for intensifying existing nonconformities)
- Wrona v. Bd. of Appeals of Pittsfield, 338 Mass. 87 (Mass. 1958) (extension to nonconforming use/structure may require variance)