Agenda - Planning Commission - 12/04/2014

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Zoning Bulletin October 25, 2014 I Volume8 ( Issue 20 within the § 6 limitation on grandfathering protection for "recon- struction, extension or structural change" of a nonconforming structure. Philippino argued that, notwithstanding that both the existing and proposed structures here would comply with existing dimensional and density regulations, they were devoted to a nonconforming use. In other words, argued Philippino, a "noncon- foiuiing structure" for purposes of G.L. c. 40A, § 6, encompasses a structure devoted to a nonconforming use even when there is no nonconformity in the structure itself. Philippino contended that therefore a dimensionally conforming structure devoted to a nonconfoiiiiing purpose —such as the proposed Project would be subject to the "reconstruction, extension or structural change" pro- vision of the statute, which, in turn, would render the Project subject to regulation under the City's zoning ordinance. DECISION: Judgment of land court affirmed. The Appeals Court of Massachusetts, Suffolk, concluded that because both the existing and replacement structures for the Proposed project were dimensionally confoiiiiing structures, the Project would not entail a "change or substantial extension" of the lawful preexisting nonconfoliiiing commercial use and therefore the protections afforded under the first sentence of G.L. c. 40A, § 6, governed, and the provisions of the second sentence of .§ 6 were not implicated. As an apparent matter of first impression (i.e., the first time a Mas- sachusetts court addressed the issue), the court held that replace- ment of a conforming structure devoted to a nonconfouuning use that does not result in a change or substantial extension of the use is permissible as of right under the zoning statute governing existing structures and uses. In so holding, the court rejected Philippino's interpretation of the statute. The court looked at the plain language of the statute and found that the Legislature had made an "important distinction" be- tween preexisting nonconforming uses and nonconforming structures. The court found that, under the language of c. 40A, § 6, nonconforming uses lose their protection against subsequently enacted local zoning ordinances when there is "any change or substantial extension of such use." Nonconforming structures, on the other hand, found the court, lose their protection when there is "any reconstruction, extension or structural change of such struc- ture," or modification that amounts to "alteration of a structure . . . for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent." Significantly, the court found that there was no © 2014 Thomson Reuters 7