In yet another twist in the law of residential non-conformities, the Massachusetts Appeals Court has held that there are some circumstances where municipalities may require a variance in order to alter a single- or two-family residence. In short, the Court has drawn a new bright line between work that intensifies an existing non-conformity on the one hand and changes that create new nonconformities on the other hand: In the former case, extensions or alterations may be authorized by the local board of appeals’ finding of “no substantial detriment” and/or grant of a special permit while in the latter case a variance is required.  Deadrick v. Zoning Board of Appeals of Chatham, Appeals Court No. 13-P-1264 (June 25, 2014).  This ruling resolves what “at first blush” appeared to be the holding in Gale v. Zoning Board of Appeals of Gloucester, 80 Mass. App. Ct. 331 (2011), that variances were impermissible in the case of residential alterations or extensions. (See Massachusetts Environmental and Land Use Alert dated September, 2011.)  

The Chandlers purchased property in Chatham containing a single-family home built in the 1920s. The home was 19.2 feet above grade with 2,161 square feet of living space. The Chandlers’ property was nonconforming as to lot size and building coverage and contained additional dimensional nonconformities with respect to its frontage, front-yard setback, and side-yard setback. The Chandlers sought a special permit to raze the old house and replace it with a new structure with an additional 529 square feet of living space on substantially the same footprint. The new structure maintained the same nonconformities as the old structure, however, the height of the new structure was 27.2 feet above grade in excess of the 20-foot height limit. Part of the height increase was caused by the property’s location in a Federal Emergency Management Act (FEMA) “velocity zone” which mandates pilings instead of a foundation.

Following the Chatham Zoning Board of Appeals’ (Board) approval of the requested special permit, an appeal by abutters was filed. After several procedural motions and rulings not relevant here, the Land Court ultimately reversed the Board’s decision and ruled that since a height exemption under § IV.A.3 of the Chatham Zoning Bylaw was inapplicable, the new structure’s increased height created a new nonconformity requiring a variance.

The Appeals Court first revisited the height exemption ruling. Section IV.A.3 of the bylaw exempts certain structures from the bylaw’s height restriction if FEMA regulations require the added height. The Land Court ruled, however, that the Board found the height increase was owing to the home’s expansion and had correctly ignored the exemption. Finding an absence of evidence in the record that the Board had properly considered the exemption, the Appeals Court reversed this ruling and remanded the matter to the Board for further consideration.

Since, on remand, the Board could find the exemption inapplicable, the Court next wrestled with the so-called “second except clause” of Massachusetts General Laws Chapter 40A, § 6, to determine the zoning relief that the Chandlers would have to obtain. The Court recited the familiar formulation last-quoted in Gale that,

[U]nder the second “except” clause of ... the statute, as concerns single or two-family residential structures, the permit granting authority must identify the particular respect or respects in which the existing structure does not conform to the present bylaw and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones. ... If the answer to that question is in the affirmative, a finding of no substantial detriment under the second sentence is required. (emphasis in original).

Reviewing the case law, the Court concluded that prior cases that allowed alterations by way of a special permit (which typically incorporate the “no substantial detriment” standard) dealt solely with intensifications of pre-existing non-conformities in single- or two-family homes, not new nonconformities.  Rejecting the Chandler’s contention that the special permit sufficed, the Court explained that:

the fallacy of the Chandlers’ contention…is illustrated by contrasting a landowner with a conforming structure who wishes to construct an addition that violates the applicable setback requirements (which would require a variance) with a neighboring landowner with a nonconforming structure as to height who also wishes to construct an identical addition, also encroaching to the same extent into the required setback (which, according to the Chandlers, would require only a finding of no substantial detriment). Such a result is illogical, given the significantly more stringent burden for a variance….

In announcing this new rule, the Appeals Court interestingly put the addition of new nonconformities to a pre-existing single- or two-family residential structure on the same footing as an intensification of or additional nonconformity to a commercial structure – all of which will now require a variance. After decades of zoning jurisprudence, the law – at least for the time being – now seems settled that a section 6 finding of “no substantial detriment” and/or a special permit is limited to those instances where the owner or developer seeks merely an intensification of pre-existing nonconformities to single- and two-family residences notwithstanding the special protections historically afforded non-conforming homes in the Commonwealth of Massachusetts.