Flipping Out? Appeals Court Reverses Itself on Expansion of Grandfathered Structures

In a decision issued on June 25, 2014, the Appeals Court waded back into the muddy waters of “grandfathering” under the state Zoning Act, offering yet another opinion on what zoning relief is required when a property owner expands a nonconforming residential structure, the existence of which pre-dates the zoning bylaws to which it is nonconforming.  

As discussed in a previous post, the Appeals Court held in Gale v. Gloucester ZBA (2011) that the enlargement or expansion of a “grandfathered” residential structure (meaning one that does not comply in one or more respects to a zoning dimensional requirement like setbacks or height) that incidentally creates new dimensional nonconformities need only be approved through a special permit under G.L. c. 40A, s. 6, and does not require a zoning variance under Section 10, the standards for which are much tougher.  The house expansion proposal that was the subject of Gale would have made the existing yard setbacks, which were already shorter than required under the Zoning Bylaw, even shorter through an enlargement of the building’s footprint. This new encroachment into the setback would seem to constitute a new nonconformity.       

As we commented in the previous post, allowing “grandfathered” structures to create new zoning violations with merely a discretionary special permit, yet hold new, conforming structures to a higher variance standard was illogical, and contradicted long-standing precedent and public policy favoring the eventual elimination of all zoning nonconformities.  In its June 25th opinion in Deadrick v. Chatham ZBA, the Appeals Court seems to recognize this anomaly, but only as it relates to a new kind of nonconformity.  Specifically, the Court held that if a house that is nonconforming to setbacks or lot size wants to expand vertically, and in doing so violates the zoning bylaw’s height restriction for the first time, the height nonconformity would require a variance. However, the decision appears to require just a special permit for increases in existing nonconformities, even if such increases are, in effect, new nonconformities.  This was the ruling of the Land Court judge, Alexander Sands, which was affirmed by the Appeals Court.  The efficacy of this reasoning is therefore still open to debate.