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Important Decision Regarding Pre-Existing Nonconforming Structures

March 2017Advisories

In a recent decision, the Land Court clarified that Massachusetts state law does not require local zoning boards to make detailed factual findings when approving an extension or alteration to a pre-existing nonconforming structure under M.G.L. c. 40A, § 6. The decision is explained in more detail below:

Case: Wojcik v. Lovett, 24 LCR 343, 2016 WL 3430554 (Mass. Land Ct. June 22, 2016)

Background:  Defendant property owners (the “Applicants”) applied for a building permit in the town of East Brookfield to raze a pre-existing nonconforming summer cottage at their property and construct a new single family year-round dwelling with a footprint twice the size of the cottage. Because the proposed construction was an extension and/or alteration of the pre-existing nonconforming structure, the Applicants were required to obtain a so-called “Section 6 finding” from the East Brookfield Zoning Board of Appeals (“ZBA”). A Section 6 finding refers to the requirement under M.G.L. c. 40A, § 6 that pre-existing nonconforming structures cannot be extended or altered unless the local permitting authority makes a finding that the extension or alteration will not be substantially more detrimental to the neighborhood than the existing nonconforming use.  Pursuant to M.G.L. c. 40A, § 6, as codified in the East Brookfield Bylaw (“Bylaw”), after receiving the Applicants’ application and holding a public hearing, the ZBA made the Section 6 finding, stating that Applicants’ proposed plans “are not more detrimental to the property and the surrounding neighborhood than the current use.” An abutter appealed the Section 6 finding, claiming, among other things, that the ZBA failed to make sufficient findings of fact to support its decision, and that its Section 6 finding was not supported by any evidence on the record.

Holding: The Land Court upheld the ZBA’s Section 6 finding, holding that neither M.G.L. c. 40A, § 6 nor the Bylaw required the ZBA when making a section 6 finding to make the sort of detailed findings of fact that would be required to support the granting of a special permit or variance. The Court noted that under some town bylaws Section 6 findings may be treated as special permits or variances, which require detailed findings of fact under M.G.L. c. 40A, §§ 9 and 10. However, nothing in M.G.L. c. 40A, § 6 requires the permit granting authority to make detailed factual findings, and therefore, unless the local bylaw chooses to adopt such a requirement, detailed factual findings are not required to support a Section 6 finding. 

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.

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