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

Safety Issue Can Be “Hardship” Justifying A Zoning Variance

The Massachusetts standard for granting a zoning variance is notoriously difficult to meet.  In a nutshell it requires proof that: (1) due to circumstances concerning soil conditions, the shape of the lot, or the topography of the land; which (2) especially affect the land but not the zoning district generally; (3) literal enforcement of the zoning ordinance would cause a substantial hardship (financial or otherwise); and (4) relief can be granted without substantial detriment to the public good; (5) without nullifying or substantially derogating from the intent or purpose of the ordinance.  See M.G.L. c. 40A, § 10.  Each requirement must be met and the courts tell us variances should be “sparingly granted.”  As a result, while zoning boards issue variances with some frequency, the percentage of those variances that meet the standard and would survive judicial scrutiny is relatively small.  A new, easier-to-meet variance standard is a perennial feature of the zoning reform bills that are introduced each year in the Legislature and, so