Agenda - Planning Commission - 03/06/2008

Home

Zoning Bulletin The Recpnstruction would essentially comply with all of the town's (~) bylaws except the one acre minimum lot area requirement. Massachusetts statutory law said that a zoning bylaw did not apply to a lawful structure that predated the zoning bylaw. How- ever, the law said reconstruction or structural changes to such structures did require compliance with the zoning bylaws, "except where ... reconstruction ... or structural change to a single or two- family residential structure does not increase the nonconforming nature of said structure" (this quoted phrase is referred to as "the second except clause"). The law also said that other pre-existing nonconforming structures could be extended, altered or changed by special permit if the permit granting authority finds that such change "will not be substantially more detrimental to the neigh- borhood than the existing nonconforming use." (Mass. Gen. L. c. 40A, ~ 6). Section 1642 of the town zoning bylaw essentially mir- rored these state law provisions.. The Owners filed a request for a finding with the town's board of appeals (the "Board") under the state and local laws. The Board denied the 'request. The Owners appealed to the Land Court, which remanded the case to the Board. The Board concluded that the Reconstruction would increase the nonconforming nature of the structure. The Board also found the Reconstruction would be substantially more detrimental to the neighborhood than the exist- ing structure. . The Owners appealed to the Land Court. The Land Court af- firmed the Board's findings and decision. The Owners appealed. The Supreme Judicial.Court of Massachusetts transferred the case to itself. The Owners did not challenge the trial court's conclusion that the Reconstruction would result in substantial detriment to the neighborhood. Thus, the sole issue before the court was whether the Reconstruction increased the nonconforming nature of the structure under the second except clause of Mass. Gen. L. c. 40A, ~ 6. DECISION: Affirmed " The court concluded that the Reconstruction would increase the nonconforming nature of the structure. In reaching its conclusion, the court clarified the meaning of the "second except clause" of Mass. Gen. L. c. 40A, ~ 6. The court said that clause required a board of appeals to: (1) identify the re- spects in which the existing structure does not conform to the re- quirements of the present bylaw; (2) then determine whether the reconstruction would intensify the existing nonconformities or re': 10 ) 162