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SJC Holds that Grandfathered Structures May Increase Nonconformity

SJC Holds that Grandfathered Structures May Increase Nonconformity with Only a Finding

Earlier this month, the Massachusetts Supreme Judicial Court (“SJC”) issued a decision holding that, pursuant to the statute governing modification of grandfathered (i.e., preexisting nonconforming) structures, the dimensional nonconformities of one- and two-family residential structures may be increased upon a finding that there will be no substantial detriment to the neighborhood. The decision is significant because the SJC explicitly determined that such structures need not obtain a variance, notwithstanding the fact that a nonconformity is being increased – that is, rendered more noncompliant with the existing zoning by-laws. The case hinges on the SJC’s interpretation of what it describes to be the “difficult and infelicitous” language contained in the first paragraph of G.L. c. 40A, § 6, which is the statute governing preexisting nonconforming structures and uses in the Commonwealth.

The decision is significant because the SJC explicitly determined that such structures need not obtain a variance, notwithstanding the fact that a nonconformity is being increased – that is, rendered more noncompliant with the existing zoning by-laws.

In Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019), homeowners in Brookline sought to modify the roof of their two-family house to add a dormer. The home was on an undersized lot, and the sole preexisting dimensional nonconformity of the structure was its floor area ratio (FAR). While the zoning by-laws required an FAR no greater than 1.0, the structure’s existing FAR was 1.14; the proposed addition, though modest in nature, would further increase the nonconformity to 1.38. The homeowners applied to the Zoning Board of Appeals of Brookline (“Board”) for a special permit (which incorporated the finding of no substantial detriment under the local zoning by-laws), which was granted. Certain abutters to the property appealed to the Land Court pursuant to G.L. c. 40A, § 17, arguing that the homeowners were also required to obtain a variance because the modification would increase the nonconforming nature of the structure. The Land Court rejected the argument and affirmed the Board’s decision granting the special permit. On appeal, the SJC granted the petition for direct appellate review.

In its decision, the Court held that “the statute requires an owner of a single- or two-family residential building with a preexisting nonconformity, who proposes a modification that is found to increase the nature of the nonconforming structure, to obtain a finding under G.L. c. 40A, § 6, that ‘such change, extension or alteration shall not be substantially more detrimental tha[n] the existing nonconforming use to the neighborhood.’ The statute does not require the homeowner also to obtain a variance in such circumstances.” In reaching such conclusion, the SJC first analyzed the statutory framework (noting, again, that the “language of G.L. c. 40A, § 6, has been recognized as particularly abstruse”) and legislative history, recognizing that the Legislature intended to afford greater protections to one- and two-family residential structures under the Zoning Act.

Accordingly, the Court endorsed the framework previously set forth by the Appeals Court in Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987). Under this approach, there must be an initial determination by the permitting authority to “identify the particular respect or respects in which the existing structure does not conform to the requirements of the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in new ones.” If the answer to this question is “no”, then the applicant is entitled to a permit to proceed immediately with the proposed alteration. If, however, the answer to the question is “yes”, then the homeowner must obtain a finding (often, but not always, incorporated into a special permit requirement in municipal zoning by-laws) that the proposed modification will not be “substantially more detrimental to the neighborhood.” As the SJC stated, it is “[o]nly if a modification, extension, or reconstruction of a single- or two-family house would ‘increase the nonconforming nature of said structure’ [that it must] ‘be submitted … for a determination by the board … .” There is no requirement that a homeowner obtain a variance when increasing a preexisting dimensional nonconformity.

The practical implications of the Bellalta decision are, in some respects, confounding, and an example is likely helpful. Suppose a town’s zoning by-laws require a ten (10’) foot side yard setback, and there is an existing structure that is eight (8’) feet from its side property line at the time the by-laws become effective. Such structure would be considered lawfully preexisting nonconforming, and the homeowner would be able to maintain the structure in its present location. Under the Bellalta decision, if the homeowner proposed to modify this structure, he or she could further expand into the side yard setback; that is, he or she could further encroach into the side yard and, for example, build five (5’) feet from the property line upon receipt of a finding that such construction would not be substantially more detrimental to the neighborhood. At the same time, a homeowner on a neighboring property, whose structure complies with the ten (10’) foot side yard setback, would not be able to expand further into the side yard. Instead, because the second homeowner’s structure is compliant with the zoning by-laws as adopted, a variance would be required. The difference is substantial, as the showing for receipt of a variance is much more rigorous than for a finding.

While the Bellalta decision definitively answers the relief necessary for a one- or two-family preexisting nonconforming structure under G.L. c. 40A, § 6, it may incite the Legislature to finally address the difficult language contained in the first paragraph of the statute. At the same time, there are certain limitations to the decision. The holding is applicable only to single- and two-family dwellings and is inapplicable to commercial structures. In addition, the Court declined to address the issue of what relief would be necessary when there is the creation (rather than a modification, extension, or reconstruction) of a new nonconformity.


1 As the SJC explained in Bellalta, a “preexisting nonconformity is a use or structure that lawfully existed prior to the enactment of a zoning restriction that otherwise would prohibit the use or structure.” Effective November 2016, structures that have been constructed (even without benefit of a building permit or otherwise in noncompliance with applicable zoning by-laws) and not subject to an enforcement action for a period of ten (10) or more years will also be treated as preexisting nonconforming structures, entitled to the protections of G.L. c. 40A, § 6. Please click this link for more information.

Kimberly Beilan Condo Law Blog

Should you have any questions about the Bellalta decision, or any other land use and zoning matter, please contact Kimberly Bielan at 781-817-4900 or via email at kbielan@lawmtm.com.

Kimberly Bielan