Not Your Grandfather’s Nonconforming Structure: Mass. Appeals Court Discusses Difference Between Increasing an Existing Nonconformity and Creating a New One

Practice area:

In perhaps a sign of the linguistic times, Appeals Court Justice James R. Milkey’s  opinion in the case of Comstock v. Zoning Board of Appeals of Gloucester received more media coverage for certain racial history commentary in a footnote than for the central zoning principles at stake. Yet, for zoning lawyers, there is far more to the ruling than the footnote.

First, Justice Milkey’s linguistic footnote: In Massachusetts and elsewhere, uses and structures in place prior to the effective date of various zoning and other regulations have long been referred to as “grandfathered.” In footnote 11 of its decision, the court acknowledges the “racist origins” of the term due to its prior use in the context of Reconstruction Era voter suppression. Certainly, the court is correct that the concept of time-exempted structures and uses can be discussed with other, less controversial, phrasing, and this post will do so.

Back to zoning. The extent to which a preexisting nonconforming structure can later be modified or extended under M.G.L. c. 40A, § 6 (Section 6) has long been a tangled thicket, but some of the safe pathways have been clear. As recited by the court: (1) all such structures have some protection under Section 6; (2) in general that protection is lost when the structure is extended or structural changes are made; (3) Section 6 provides an additional layer of protection if the structure is a single- or two-family residence – such structures can be extended or altered if the change does not “increase” the structures’ “nonconforming nature”; and (4) even lesser such increases in the nonconforming nature can be allowed by special permit if the local permit granting authority determines that the proposed modification is “not substantially more detrimental” to the neighborhood; but (5) adding an “additional” nonconformity requires the hardest to obtain and most easily overturned form of zoning relief: a variance.

The clear path ends at discerning the difference between an allowed increase in an existing nonconformity (allowable by special permit) and adding an “additional” nonconformity (triggering the need for a variance). Based on the Appeals Court’s 2014 ruling in Deadrick v. Zoning Board of Appeal of Chatham, many practitioners (and the trial judge in Comstock) concluded that where the prior nonconformity involved lateral setbacks, a new increase in height was an “additional” nonconformity triggering the variance standard.

Not necessarily so, ruled the Appeals Court in Comstock, stressing that Chapter 40A allows a local bylaw to provide even greater exemption than required by Section 6 and the pertinent case law. Using that distinction, the court noted that the Deadrick ruling was merely a remand – Deadrick didn’t  require a variance; it simply required the defendant zoning board to make the call under the local bylaw. The court then applied the same analysis to the case before it, observing that the Gloucester Zoning Bylaw in fact allowed the increase in height by special permit, which the structure’s owners had duly obtained. Result: trial court reversed and entry of judgment directed in favor of structure owner.

Moral of the story: Deadrick is not a dogmatic test for “additional” nonconformity after all. The line between allowable minor “increases” in nonconformity and prohibited “additional” nonconformities remains unclear. But at least for the Appeals Court, a close reading of the associated local bylaw is a key part of the analysis.