Agenda - Planning Commission - 06/04/2015

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April 25, 2015 1 Volume 9 1 Issue 8 Zoning Bulletin Palitz applied for an amended or new variance. The ZBA denied Palitz's variance request, in part because the increased height of the proposed dwelling would have eliminated the view of an abutter. Palitz appealed the ZBA's decision to court. Among other things, Palitz argued that 87 Main Street was entitled to grandfather protection under the Zoning Act, G.L. c. 40A, § 6. Under that grandfathering pro- vision, "a zoning ordinance or bylaw shall not apply to structures or uses lawfully in existence or lawfully begun, . . . but shall apply to any change or substantial extension of such use, . . . [and] to any reconstruction, extension or structural change of such structure . . . except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure." Palitz argued that because the dwelling at 87 Main Street predated the town's zoning bylaw and the lot was created pursuant to the exist- ing structures exemption from the subdivision control law, neither the 1995 variance nor an amended variance was necessary to her project. The land court judge disagreed with Palitz. The judge held that the ANR endorsement did not establish zoning compliance and, as a result, 87 Main Street was not rendered lawful for zoning purposes by the grandfather protection afforded by § 6. Rather, the judge concluded that 87 Main Street was rendered lawful by the 1995 variance, and consequently, an amendment to that variance was required for Palitz to enlarge her dwelling. Palitz appealed. DECISION: Judgment of land court affirmed. The Supreme Judicial Court of Massachusetts agreed with the land court judge. It held that a division of land pursuant to the state's subdivision control law's existing structures exemption, G.L. c. 41, § 81L, does not entitle structures on the resulting lots to "grandfather" protection against new zoning nonconformities created by the division. Here, the court found that Palitz was not entitled to a grandfather status for zoning nonconformities on her lot. In so holding, the court acknowledged that because the original structure on Palitz's lot predated the effective date of the Town's bylaw, it constituted a preexisting nonconforming structure entitled to grandfather status under the Zoning Act, G.L. c. 40A, § 6. The court noted, however, that although preexisting nonconforming status runs with the land, the introduction of a new nonconformity to a pre-existing nonconforming residential structure requires a variance. Here, noted the court, the § 81L division under the state's, subdivision control law had created new zoning nonconformities as to lot size, frontage, and front yard setbacks, among others. The court reiterated that the Zoning Act's grandfathering provision (G.L. c. 40A, § 6) did not render those 4 © 2015 Thomson Reuters