Weston Patrick, P.A.

By Michael W. Wiggins

How can your next door neighbor own such a large house on such a tiny lot, when you can't even secure a permit to convert an attic to an extra bedroom on your larger lot next door? And why does that mineral pit, with its noisy trucks coming and going at all hours of the day and night, continue to operate with impunity in your residential neighborhood? There oughta be a law!

There are indeed state zoning laws and local ordinances in Massachusetts towns and cities that specify the minimum lot size for constructing a house, how large a house can be built there, and how far back it has to be set from the front, side and rear lot lines. There are also explicit limits as to what activities, or "uses", can be conducted in your zoning district. But there are also laws on the books, and a wealth of court cases supporting them, that “grandfather” (or “grandparent”?) lots that were carved out before the zoning changed to increase the minimum lot size. These are called “prior nonconforming lots”. The law also protects existing structures ("prior nonconforming structures") that, when built, conformed to the dimensional requirements as to building size, set back distances from front, side and rear lot lines and open space on the lot, from later changes to those same dimensional requirements. And finally, prior nonconforming uses that were well established on a lot before the law changed to ban them in the same zoning district enjoy limited protection from enforcement of the new restrictions.

Zoning laws that restricted what could be built on a lot and to what uses it could be put arrived relatively late in Massachusetts, with comprehensive statewide enabling legislation for local zoning ordinances first being passed in 1920. Over time since then, cities and towns have passed and amended local zoning ordinances many times, periodically changing dimensional limits and use restrictions. But from the beginning, the authorizing legislation has always protected buildings that were lawfully constructed, certain minimum size lots that haven't yet been built on, and, to a limited extent, uses that were already in effect, at the time of each successive zoning change.

Assume that I purchased a 5,000 square foot lot in my town in 2004 at a time when the law allowed single family residences to be built on lots containing at least 5,000 square feet. I didn’t get around to building on it for the next eight years. The town's zoning by law was changed in 2012 to require that no residences can be built on a lot that is less than 10,000 square feet. My lot would be automatically “grandfathered” as a "prior nonconforming lot", meaning that I would retain the right to build a house there notwithstanding the change in the law as to minimum lot size, so long as the lot contains at least 5,000 square feet and 50 feet of street frontage (minimums that the state zoning law superimposes over local zoning ordinances ) and I can also meet other current ordinance requirements governing maximum habitable floor space, distance setbacks from front, side and rear lot lines, and the percentage of the lot that must contain open space. I would also enjoy limited protection from changes in the allowable setback distances so long as I obtained a building permit that conformed to the prior setback requirements within 5 years after the law changed. The new restrictions might mean that the size of the house I could build would be limited, but I could still build on the lot.

Similarly, if I build a house 11 feet from the rear lot line this year, when the rear yard setback ordinance allows rear lot setbacks to be as short as 10 feet, thereby conforming to the law as it now stands, my existing building will be grandfathered as a "prior nonconforming structure" from future changes to the ordinance that enlarge the minimum rear yard setback in the district to 20 feet. I may even be permitted to add to the house in the future provided that the addition does not extend the prior nonconforming encroachment into the new setback area. In zoning law parlance this is referred to as "a conforming addition to a prior nonconforming use". But if I want to build an addition that also projects into the new 20 foot setback, I may well not be grandfathered, and I will have to seek special relief from my local zoning board in the form of a variance or special permit. (For the strict standards that must be met to obtain a variance, see the earlier article on this website entitled “Opposing A Variance”.)

Limited protection of prior nonconforming buildings and prior nonconforming lots from changes in lot and building dimensional restrictions is understandable, and doesn’t generate a whole lot of controversy, although there are frequent skirmishes about what constitutes a permissible extension of a prior nonconforming building. After all, it doesn't seem fair to shut down an owner whose lot conformed to the zoning law when purchased purely because the zoning law has changed with regard to future dimensional requirements. But far more controversial, and therefore more likely to generate litigation because of the stakes involved, is to what extent a prior nonconforming use can be allowed to persist, and even grow, when the character of the immediate neighborhood surrounding the lot has changed and the zoning ordinance has changed to reflect it. A classic example that we have recently dealt with in our practice is where the owner of a long established gravel pit, operated continuously for generations on a remote rural tract, is faced with a wave of residential subdivisions surrounding the tract, and a new ordinance has changed the zoning in the district in which the pit is located to allow single family residence only.

Businesses are entitled to limited protection from losing their established use of their properties, so long as the use itself isn’t so “changed” or “substantially extended” that it is no longer entitled to grandfathered status. Successful businesses grow and evolve over time. The basic criteria for assessing whether such an extreme change or extension in use has occurred so as to strip away the protection of the prior nonconforming use were originally set forth in the Supreme Judicial Court case of Powers v. Barnstable in 1973, and since refined through subsequent appellate decisions in Massachusetts. Loosely translated, they include:

(1) whether the use reflects the nature and purpose of the use prevailing when the zoning ordinance took effect,

(2) whether there is a difference in the quality or character, as well as the degree, of the use, and

(3) whether the use is different in kind in its effect on the neighborhood.

What these tests mean in practice has been the subject of a raft of appellate decisions since 1973. A gradual increase in the volume of business conducted on a lot as a natural result of successful operations, or the evolution of the use in a manner that closely reflects the original use, such as the gradual evolution of a seasonal farm stand to year round sale of produce, may be entitled to protection. Conversion to only a marginally related use, such as replacement of a small prior nonconforming gas station by an auto collision repair center or an auto dealership, would be harder to sustain because of the difference in nature of the use and impact upon the immediate neighborhood. Sometimes a sudden, sharp spike in intensity of the use, leading to a demonstrably greater impact on the neighborhood that goes far beyond a gradual increase in sales over time, will alone trigger a shut down order. One example of that is the thirty fold increase in the volume of sand and gravel production that resulted when an owner expanded the area of extraction from the original small fraction of the lot that had always been mined previously to the entire lot.

The above overview barely scratches the surface of this ever evolving branch of zoning law in Massachusetts. Whenever an owner proposes to construct a new building or add to an existing structure on a nonconforming lot, or a business seeks to expand or alter a use that is now forbidden in the district, and either the building inspector issues a denial letter or a neighbor campaigns to stop it, estimation of the most likely outcome of ensuing litigation will depend on a thorough examination of the facts and a careful review of the appellate courts' application of the law to similar facts in parallel cases.