grandfathering

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

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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

Mass. High Court Says Not All Divisions of Land Require Planning Board Approval, Dismisses Prospect of “Wild Deeds”

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In its recent decision in RCA Development, Inc. v. Zoning Board of Appeals of Brockton (pdf), Massachusetts’ Supreme Judicial Court (SJC) considered whether a division of land into two lots accomplished solely by deeds describing the new lots, with no plan having been drawn or approved by the local planning board, is valid. Without hesitation the SJC held that it is.

In 1964 the owner of a lot in Brockton conveyed the northern half of the lot to the owner of a northerly abutting lot, and the southern half of the lot (the locus) to the owner of a southerly abutting lot. Each half of the original lot independently complied with the then-existing frontage, lot-depth, and area requirements. Going forward, the locus and the southerly abutting lot were conveyed together but continued to be separately described. At some point a house was built on the southerly abutting lot but the locus remained vacant.

In 2016 the plaintiff applied for a permit to