Recent Amendment to Massachusetts State Zoning Law Clarifies Status of Nonconforming Structures

November 2016 – Advisories

On August 4, 2016, Governor Baker signed into law H3611, “An Act relative to nonconforming structures.” The new law, which became effective on November 4, 2016 and is retroactive, amends the Section 7 of the State Zoning Act (Chapter 40A). The amendment clarifies the legal status of structures which were built in violation of zoning but which have survived the 10-year limitations period of M.G.L. c. 40A, § 6 for zoning enforcement actions.

Under prior law, it was unclear whether, and under what terms, such a structure could be re-built or repaired if it were to be damaged or destroyed. In layman’s terms, the unanswered question was, “is such a structure entitled to grandfathered status?” That is, once past the reach of a zoning enforcement action, did a structure that was in fact commenced illegally or under a building permit that was issued in error, have the status of a pre-existing nonconforming structure which could be altered, repaired or extended pursuant to a so-called Section 6 Finding as opposed to a variance? The amendment resolves the question, and gives noncompliant structures that are past the 10-year enforcement period grandfathered status.

The amendment provides clarity as to the legal status of such structures and thus gives property owners, buyers, developers and lenders protection in dealing with non-complying buildings.

To learn more about this recent amendment, please contact the author of this advisory:

Kevin P. O'Flaherty
(617) 574-6413
[email protected]

This advisory should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer concerning your situation and any specific legal questions you may have.