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