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Zoning Deficiencies Not Cured by Existing Structures Exception for Approval Not Required (ANR) Plans

Dividing up the “traditional New England family compound” has a host of societal implications and land use complications that were on display in the Supreme Judicial Court’s recent decision in Palitz v. Zoning Board of Appeals of Tisbury, 470 Mass. 795 (2015).  In that case, the SJC ruled that zoning infirmities caused by the division of such a tract under the “existing structures” exception of M.G.L. c. 41, § 81L, must be addressed by variance because the property  division, even though accomplished by way of an Approval Not Required (ANR) plan under § 81L, does not cure those zoning deficiencies.

As with many land use cases, Palitz involves one neighbor attempting to block the water view of another by expansion or replacement of an existing, smaller dwelling.  Here, three homes were built close together on three parcels held in common ownership from the early 1920s.  In the mid-1990s, the owner divided the land into three lots under the “existing structures” exemption to the Subdivision Control Law pursuant to § 81L.  The owner obtained and recorded the ANR endorsement from the Tisbury Planning Board and sought a variance to address the zoning problems (minimum lot size and frontage) of the lot known as 87 Main Street, which was created by the § 81L plan.  The Zoning Board of Appeals granted the variances and the property was sold to the plaintiff in 2007. 

In 2012, the plaintiff sought a building permit to tear down the existing dwelling and construct a new dwelling on the same footprint, but with a third floor measuring 10 feet taller that would block a neighbor’s water view.  The zoning enforcement officer required the variance to be amended, which the Zoning Board denied based in part on the impact on the neighbor’s view.  The plaintiff appealed to Land Court, which agreed that a new or amended variance was required, and the SJC took the case on direct appellate review.

The plaintiff argued that because the structure was nonconforming prior to enactment of the Zoning Act, it was entitled to grandfathering under M.G.L. c. 40A, § 6, and that the § 81L plan did not result in a physical alteration of the preexisting structure.  As a result, the plaintiff argued, the earlier variance was not necessary and the later proposed new structure did not require an amended or new variance.  The SJC disagreed and explained that the § 81L division created noncompliance with the Zoning Bylaw in several respects (lot size, frontage, and front yard setback) that did not fall within the protection of § 6 for pre-existing nonconformities.  Instead, the 1995 variance was necessary at the time and a new or amended variance was required to change the structure because the proposed reconstruction would have expanded noncompliance permitted by the earlier variance. The SJC effectively prohibited the plaintiff from piggybacking § 6 nonconformity protections on a § 81L “existing structures” lot division.

Grandfathering arguments aside, the plaintiff also asserted that the a policy behind the “existing structures” exemption contemplated the “traditional New England family compound” and must insulate it from the need for any zoning relief that might otherwise arise from the division of the land into separate lots.  “[While t]his would explain why plans depicting such structures are entitled to ANR endorsements,” the SJC reasoned, “it would not explain why a landowner should be entitled to carve up the land without any regard to zoning bylaws – particularly in light of the long-standing principle that ‘a landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity.’"  Palitz, 470 Mass. at 805, quoting Planning Bd. of Norwell v. Serena, 27 Mass. App. Ct. 689, 690 (1989).  In short, the SJC rejected the notion that “an ANR endorsement pursuant to the existing structures exemption” is “tantamount to the grant of a variance.”  The SJC upheld the decision of the Land Court requiring an amended or new variance for the proposed project.

© 2019 Beveridge & Diamond PC


About this Author

Marc J. Goldstein, Environmental Attorney, Beveridge Diamond law firm

Marc Goldstein helps clients resolve environmental and land use disputes and to develop residential, commercial, and industrial projects.  He serves as the Managing Principal of Beveridge & Diamond’s Wellesley, Massachusetts office.

Brian Levey, Land Use, Real Estate, Attorney, Beveridge Diamond, Law Firm

Mr. Levey, a Principal with Beveridge and Diamond, P.C., has more than twenty years of project development experience before permit-granting authorities and in court. He is Co-Chair of the Firm’s Land Use Practice Group.

Mr. Levey's real estate development and land use and zoning law experience focuses on the representation of builders, developers, and property owners seeking all types of permits and approvals — special permits, site plan approvals, variances, and comprehensive permits — before dozens of boards throughout Massachusetts. His environmental practice focuses on permitting matters before local boards and state agencies on wetlands and Title V matters. Representative project approvals include residential subdivisions, affordable housing projects, retail stores, shopping centers, restaurants, telecommunications towers and assisted living facilities. In addition to property owners and developers, his clients include educational and religious nonprofit institutions and project abutters and neighborhood associations. He also has experience serving as special counsel to boards.