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Section Review

Alteration Of Nonconforming Structures and Uses Under The Zoning Act: Is There a Difference Between Lawful and Unlawful?

After the enactment of the Zoning Act, G.L. c. 40A, by Chapter 808 of the acts of 1975, every city and town in Massachusetts, with the exception of Boston, has adopted or amended a zoning bylaw or ordinance to conform with the Zoning Act. (There is no practical difference between town bylaws and city ordinances with regard to the matters discussed in this Article. Accordingly, for convenience, zoning bylaws and ordinances are collectively referred to as “bylaws.” However, because Chapter 40A does not apply to the City of Boston, the comments in this Article may not be relevant to Boston properties.) Municipalities frequently amend their zoning bylaws to address the specific needs and objectives of the community. For example, municipalities may control growth by increasing minimum lot size and frontage requirements. In addition, communities often add or eliminate uses in order to modernize the scope of their zoning or to protect the integrity of residential zoning districts.

As zoning amendments are adopted, the status of lots already built upon and the structures themselves can change from lawful and conforming to pre-existing nonconforming. Section 6 of the Zoning Act is the statutory provision that establishes the framework for changing, expanding, altering and reconstructing pre-existing nonconforming uses and structures.

A separate provision of the Zoning Act, Section 7, provides statutes of limitations for structures and uses built or commenced illegally or mistakenly. If an illegal structure or use survives the applicable statute of limitations, it remains unlawful, but is legally protected from enforcement.

As is typical of government regulation, the application of provisions such as Sections 6 and 7 of Chapter 40A can be subject to various interpretations. Consequently, zoning cases involving Section 6 and Section 7 can present interesting challenges in determining the status of a use or structure and whether a use or structure can be expanded or changed. The purpose of this article is to analyze those sections and provide a discussion of how certain interpretations of these sections can be frustrated by local opinion and neighborhood opposition.

Lawful uses and structures

Uses and structures that complied with zoning when commenced or built and remain in compliance with subsequent changes in zoning are lawful and conforming uses and structures. If a landowner wants to alter, change or extend a lawful use or structure, he or she needs only to identify the zoning district in which the property is located and check the “table of uses” or the “table of dimensional controls” in the bylaw to determine whether the alteration, change or extension is allowed as-of-right or conditionally, or prohibited (unless the landowner obtains a use variance if authorized by the local bylaw).

Pre-existing nonconforming uses and structures – Section 6

The procedure for changing a use or structure is far more complicated if the use or structure complied with zoning when it was commenced or built, but subsequent changes to the bylaw placed the use or structure in noncompliance with current zoning. These pre-existing nonconforming uses and structures are created when zoning bylaws are amended, e.g., to increase dimensional controls on a lot or structure, or to prohibit uses that previously had been allowed. So, for example, a previously lawful 20,000 square foot lot would become nonconforming if the minimum-lot-size requirement were increased to 30,000 square feet. Likewise, a house located on that lot with a 20-foot front yard setback that met the setback requirement when the house was built would become nonconforming if the minimum front yard setback were increased from 20 feet to 30 feet.

In this example, the legal status of the lot and house would change from lawful and conforming to pre-existing nonconforming. Although the lot and house have become nonconforming, the house does not need to be moved back 10 feet from the front property line. This is because Section 6 provides that uses and structures that existed lawfully prior to the effective date of a zoning change are exempt from zoning changes.

According to Section 6, the provisions of the amended zoning bylaw would apply only to:

• any change or substantial extension of a pre-existing nonconforming use;

• any reconstruction, extension or structural change of a pre-existing nonconforming structure; and

• a building or special permit issued after the first notice of the public hearing on the proposed zoning amendment; and

• any alteration of a structure begun after the first notice of the public hearing on the proposed amendment to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent.

Section 6 establishes standards for local zoning boards of appeals to use when they evaluate proposed changes to pre-existing nonconforming uses and structures. As described below, the provision provides different requirements for single-family and two-family residential structures than it provides for all other structures.

Single-family and two-family residential structures

Section 6 affords special treatment to changes proposed to, or reconstruction of, nonconforming single-family and two-family residential structures. First, a change or reconstruction of a residential structure that would not increase the nonconforming nature of the structure is permitted. For example, if a house is nonconforming because the front yard setback is only 10 feet where the amended zoning bylaw requires 15 feet, a proposed addition to the house that would extend solely into the rear yard (and comply with the rear yard setback) would not intensify the front yard setback nonconformity and should be allowed as-of-right by the board of appeals.

Second, if an applicant proposes to change or reconstruct a residential structure in a manner that would increase the nonconformity, the change or reconstruction will be permitted if the board of appeals finds that the change or reconstruction would not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood. See, e.g., Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53 (1985) and Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15 (1987). For example, if a house is nonconforming because the setback on the left side of the house is 7 feet from the property line where the amended zoning bylaw requires 15 feet, a proposed addition to the house that would maintain the present left sideline of the house but would extend it further into the rear yard would increase the nonconformity. Thus, the board of appeals would determine whether the proposed addition would be substantially more detrimental to the neighborhood than the existing structure.

Prior to the 1992 decision in Goldhirsh v. McNear, 32 Mass. App. Ct. 455, the local building inspector commonly made the determination of whether a proposed change would increase a nonconformity. If the building inspector found there would be no increase, he or she would issue a building permit. Otherwise, the applicant was sent to the board of appeals for further evaluation. However, Goldhirsh held that even if a house were expanded upward, solely within the existing footprint, there might be an increase in a pre-existing side lot nonconformity. Goldhirsh further held that boards of appeals must pass in the first instance on whether an alteration or expansion increases a nonconformity.

Other Structures

Alterations or extensions to nonconforming structures or uses other than single-family or two-family residential structures are not allowed as-of-right. Nonconforming uses or structures may be changed only if the board of appeals finds that the change would not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.

Generally, nonconforming non-residential structures cannot be reconstructed under Section 6 unless the reconstruction would conform with the current zoning requirements or a variance is obtained for any nonconformity. However, Chapter 40A does not prohibit a municipality from adopting a zoning bylaw that would allow a nonconforming structure (or a structure on a nonconforming lot) to be rebuilt even if the nonconformity would be maintained. See, e.g., Berliner v. Feldman, 363 Mass. 767 (1973); Planning Board of Reading v. Board of Appeals of Reading, 333 Mass. 657 (1956); Angus v. Miller, 5 Mass. App. Ct. 470 (1977).

Unlawful but legally protected uses and structures – Section 7

Pre-existing nonconforming uses and structures, as discussed above, are lawful, and they should not be confused with unlawful uses and structures that are legally protected from termination or removal because they have survived the statutes of limitations on enforcement set forth in Section 7. Section 7 provides that no action, suit or proceeding may be maintained in any court, nor any administrative or other action taken to recover a fine or damages or to compel the removal, alteration, or relocation of any structure or part of a structure or alteration of a structure, by reason of any violation of any zoning bylaw except in accordance with the provisions of Chapter 40A.

The provision provides two statutes of limitations for structures built illegally or mistakenly. First, there is a six-year limitation on suits to compel the removal, alteration or relocation of a structure that was built in violation of Chapter 40A or a zoning bylaw, if the structure was built in accordance with the terms of the original building permit. This protection applies even where the building inspector had improperly or mistakenly issued the building permit. Second, there is a 10-year limitation on suits to compel the removal, alteration, or relocation of a structure that was built without a building permit.

With regard to uses commenced illegally, Section 7 provides the same six-year limitation on suits to compel the abandonment, limitation or modification of a use commenced under the terms of the original building permit. The use is only protected however, if the building permit specifically contemplated the use. Lord v. Zoning Board of Appeals of Somerset, 30 Mass. App. Court 226 (1991). There is no limitation on the time for taking action against uses that were not authorized by a building permit.

Although pre-existing nonconforming uses and structures may be changed in certain circumstances, the question arises whether there can be any expansions or changes to an unlawful but legally protected use or structure. Based on the logic that all uses and structures should comply with current zoning laws, one would expect that a structure or use that is unlawful but legally protected, could not be extended, expanded or changed. While Chapter 40A provides no guidance on this issue, it has been suggested that unlawful uses and structures legally protected under Section 7 might attain the status of legal nonconforming structures and uses that can be changed in accordance with the requirements of Section 6. See, e.g., Bobrowski, “Handbook of Massachusetts Land Use and Planning Law.”

In evaluating this question, we find informative the case of Durkin v. Board of Appeals of Falmouth, 21 Mass. App. Ct. 450 (1986), where the Appeals Court addressed the related question of whether a use that was arguably exempt from zoning restrictions could be expanded in accordance with Section 6. In that case, a federal post office was located in a residential district where commercial use was prohibited. Because local officials considered the federal use exempt or immune from local zoning, the building inspector issued a building permit for the building’s construction and use as a post office. A subsequent owner of the property requested a special permit under Section 6 to renovate the building and convert the post office into other business use, but the board of appeals denied the request, reasoning that, as an exempt or immune use, the post office was not merely “nonconforming,” (i.e., it was something else akin to “unlawful”). The Appeals Court found that the board of appeals had interpreted the term “nonconforming” too narrowly, stating that even if the post office had never been a permitted use because it was immune, “it still would have been a use of the locus forbidden by the by-law and thus ‘nonconforming’ in fact.” Since the post office had been built pursuant to a properly issued building permit, the Appeals Court concluded that the six year statute of limitations in Section 7 applied and held that use of the property as stated in the original building permit was protected “and perhaps any uses reasonably similar in character to the post office use and not more detrimental to the community.”

Extrapolating from the reasoning of the Durkin decision, one can argue: (a) that a use or structure that is unlawful when begun, but legally protected because the limitations period of Section 7 has expired, becomes equivalent to a pre-existing nonconforming use or structure; and (b) Section 6 applies when determining whether it can be expanded, altered, or reconstructed.

In Moreis v. Oak Bluffs Board of Appeals, C.A. No. 97-0033 (2001), the Dukes County Superior Court dealt with many of the issues reviewed in Durkin and Lord. The court held that even if a building permit impliedly authorized a particular use of property, the expanded use of that property is not within the protection of Section 7 if the expanded use is not within the terms of the original building permit or similar in character to the use contemplated in the original building permit. The court addressed whether any part of the nonconforming use for which a building permit originally had been obtained was itself extinguished by subsequent expansions or whether the original nonconforming use may be continued. The court held that the extinguishment of all of the nonconforming use, including the part originally contemplated by the building permit, was warranted where the nonconforming use had been substantially extended. The court stated that such a result is consistent with public policy favoring the elimination of nonconforming uses and with Section 6, which specifically states that zoning regulations shall apply to any change or substantial extension of a nonconforming use.

While this portion of the Moreis decision may seem harsh, it supports the hypothesis that an unlawful structure or use, protected after the expiration of the applicable statute of limitations, should be viewed as a pre-existing nonconforming use that can be altered or extended upon requisite findings by a board of appeals acting pursuant to Section 6. Moreis makes clear that a protected unlawful use does not give the owner the right to rely upon the expired statute of limitations alone to protect further alterations or expansions. This case has been appealed, so an appellate decision may provide further guidance with regard to the application of Sections 6 and 7.

An example of the intersection of Sections 6 and 7

Despite the basic principles discussed above, the statute and case law are not entirely clear in guiding practitioners who need to interpret the status of a use or structure and the applicability of Sections 6 and 7. Consider a case involving a use commenced as lawful pursuant to a decision of a board of appeals, but held invalid by a subsequent board of appeals’ decision 10 years later. In the intervening 10 years, two buildings were constructed and used pursuant to building permits issued by the building inspector. At the end of the 10-year period, the statute of limitations had run only on the initial building permit authorizing the construction of the first building.

The practitioners involved in this case (the town counsel and the landowner’s counsel) took different positions on how Sections 6 and 7 controlled future use of the property and the second structure. When the landowner requested a legal opinion on the issue, the case seemed to present an optimal case for applying the rationale set out in Durkin. The salient facts of this example are as follows.

A landowner sought a building permit to construct and operate a pathological incinerator on industrially zoned property for use as a pet crematorium. Because the term “pathological incinerator” was not among the uses specifically allowed in the zoning district, the building inspector denied the request and an appeal was taken to the board of appeals.

The board of appeals found that the proposed use of pathological incinerator was allowed in the industrial zoning district. No one appealed the board’s decision and, thereafter, the building inspector issued a building permit for the construction of a pet crematorium. The landowner immediately commenced use of the property for incineration of animal carcasses.

Five years later, the landowner sought a building permit to construct a second building to house an additional pathological incinerator and, relying on the original board of appeals’ decision, the building inspector issued a building permit for the second building. The second building was constructed, and use of the incinerator commenced the following year. However, this pathological incinerator was used to burn medical and hospital waste, not animal carcasses.

Five more years later, acting on complaints from neighboring property owners, the building inspector issued a cease-and-desist order prohibiting the incineration of medical and hospital waste in the second building. On appeal of the building inspector’s order, the board of appeals interpreted the zoning bylaw as prohibiting incineration of any type in all zoning districts in the town and determined that the prior board of appeals had erred in finding the use lawful and authorizing the issuance of the original building permit. Because the latter board of appeals found that the use was unlawful from the outset, it looked to Section 7 to determine whether the statute of limitations had run on enforcement.

The board ruled that because the six-year statute of limitations had run on the first building permit issued for a “pet crematorium,” Section 7 protected the first building from enforcement against use for the incineration of animal carcasses (but not for pathological incineration of medical or hospital waste). The decision also stated that there was no Section 7 protection for the second building, because use of that building had started under a building permit issued less than six years earlier. Based on the decision of the board of appeals, the landowner ceased use of the second building for pathological incineration of any kind. Although the landowner appealed the decision, the parties entered into a settlement agreement whereby the effect of the board’s decision stood.

Recently, the landowner requested a legal analysis to support expansion of the use of the property for cremation of animal carcasses into the second building. As noted above, use of the first building was ruled to be unlawful, but legally protected under Section 7. Based on the Durkin decision discussed above, one approach is that the initial unlawful use of the property for animal cremation attained the status of a pre-existing nonconforming use after the six-year statute of limitations expired. Arguably, the use could then be expanded into the second building if the current board of appeals would make the appropriate findings under Section 6.

Alternatively, it could be argued that the first board of appeals did not err in its decision on the lawfulness of the use, and that the second board simply interpreted the zoning bylaw differently. Because the first decision was not appealed within the statutory appeal period, the effect of the decision was that any property in the industrial district could be used lawfully for “pathological incineration.” As the practical effect of the second decision was to eliminate the use from the zoning district, any pathological incinerator use commenced in the zoning district during the years between the two decisions was commenced lawfully, arguably allowing both the cremation of animal carcasses in the first building and the burning of hospital and medical waste in the second. At the time of the second decision, these lawfully commenced uses would have become pre-existing nonconforming uses. In essence, the second board of appeals’ decision resulted in a zoning change just as if the zoning bylaw had been amended by town meeting. However, since the landowner had voluntary abandoned use of the second building after the second decision, the second building lost its protected status under Section 6. Accordingly, in order to now expand the pre-existing nonconforming lawful use of the property into the second building, the landowner would need to obtain a Section 6 finding from the board of appeals, based on a request to expand the use into the second building.

As it turned out, local officials were entrenched in the position that the use was unlawful from the beginning, and so were not inclined to consider expansion of the use from the first building to the second, regardless of their legal authority to do so. At a public meeting, it was clear that neighbors also had come to believe that the second board decision meant that the use had always been unlawful, and argued that this decision was binding on the property as a result of the landowner’s acceptance of the second board decision. These positions eliminated the feasibility of obtaining support for consideration by the board of appeals of a request for a finding under Section 6, and the landowner decided not to pursue the matter.

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