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Zoning - Nonconforming house - Fire.

Byline: Mass. Lawyers Weekly Staff

Where the Marion zoning board denied an application for a special permit to tear down a two-family structure and replaced it with another two-family structure, the property lost its ability to continue to host a nonconforming two-family residence in November 2012, nearly a year before the plaintiff bought it.


"This case presents two issues: (1) whether the Town of Marion, Massachusetts's Zoning Bylaws permanently 'grandfather' uses of properties that the Bylaws outlaw, if those uses began before the Town adopted its original Bylaws; and, if not, (2) whether a property at 120 Front Street in Marion, a property that's in a district zoned for single-family homes only, nevertheless may host a two-family home without special approvals from the Town. This Court interprets the Bylaws as not permanently grandfathering pre-existing, but now nonconforming, uses. This Court also holds that, while the Bylaws at one time allowed 120 Front Street to be used for two-family purposes without special approvals, that right lapsed in November 2012.

"The parties to this case are plaintiff 120 Front Street, LLC, the current owner of 120 Front Street, and the defendant members of the Marion Zoning Board of Appeals (the 'Board'). In October 2017, the LLC applied for a building permit. The LLC sought to raze a fire-damaged two-family dwelling on 120 Front Street (the 'Old House') and build a new two-family dwelling there (the 'New House').

"Marion's building inspector denied the building permit. He cited concerns that the Old House had been 'abandoned' for so long that the LLC lost the right under Marion's Zoning Bylaws to continue using 120 Front Street for two-family purposes. The LLC appealed the permit denial to the Board under G.L.c. 40A, 8 and 15. In a March 2018 decision, the Board agreed that no one had 'abandoned' the Old House or 120 Front Street. Instead, the Board ruled that the Old House went unused as a two-family residence for more than two years following the Old House fire. Section 6.1.6 of the Zoning Bylaws states that a nonconforming use 'which has been abandoned, or not used for a period of two years, shall lose its protected status and be subject to all of the provisions of this zoning bylaw.' (Emphasis added.) The Board thus upheld the building inspector's denial of a building permit on grounds of non-use.

" In the LLC's view, the first sentence of 6.1.1 of the Bylaws (the 'First Sentence') offers permanent protection for the two-family use of 120 Front Street.

"The First Sentence reads: 'No provision of this Zoning Bylaw shall apply to structures or uses lawfully in existence ... before the first publication of notice of the public hearing required by M.G.L., c. 40A, s. 5.' The LLC argues that the First Sentence means what it says: '[n]o provision' of the Bylaws applies to the preexisting, lawful use of 120 Front Street as a two-family residence.

"The LLC buttresses its plain-language reading of the First Sentence with a public-policy argument: the LLC claims that the First Sentence manifests the Town of Marion's lawful decision to provide to preexisting structures and uses more generous protections from zoning bylaws than those found in c. 40A, 6.

"The LLC is mistaken both as to how generous municipalities may be with 'grandfathering' uses and as to how one should interpret 6.1.1. Reasoning that since c. 40A doesn't mandate that a parcel be any particular size, the court in Lee v. Board of Appeals of Harwich, 11 Mass. App. Ct. 148 , 154 (1981), held that a municipality legitimately may decide to give 'generous grandfathering protection' to undersized lots.

"Municipalities don't enjoy the same flexibility when it comes to nonconforming uses and structures.

"The Town of Marion thus has no power to 'permanently grandfather' nonconforming uses: c. 40A, 6 mandates that if one abandons a nonconforming use, one can't resume it.

" Interpreting the First Sentence as permanently grandfathering all lawful pre-existing nonconforming uses and structures would make several parts of 6.1 of the Bylaws inoperative, and still others superfluous.

"The better reading of 6.1.1 and its two Sentences is that they cover two distinct periods. The First Sentence provides that a zoning bylaw won't apply retroactively to 'structures or uses lawfully in existence or lawfully begun, or to a building or Special Permit issued[,]' before the first publication of a notice of the public hearing required under c. 40A, 5 in advance of a municipality's adoption of any zoning bylaw or amendment. The First Sentence couldn't provide otherwise: c. 40A, 6 draws the same line (and goes further: zoning bylaws 'shall apply' to all sorts of things 'after the first notice of public hearing ...'). The Second Sentence governs a different period, that after the Town of Marion adopts a zoning bylaw: 'Such prior, lawfully existing nonconforming uses and structures may continue,' on one condition: 'that no modification of the use or structure is accomplished, unless authorized hereunder.' This reading of 6.1.1 allows every part of 6.1 of the Bylaws to operate, including 6.1.6.

"The questions of use and cessation of use are ones of fact. The facts of this case show that 120 Front Street hasn't been used for two-family purposes since the November 2010 fire. There's a simple explanation for that: owing to the lack of a certificate of occupancy, no one has been allowed to inhabit the Old House, the only structure that's been present on 120 Front Street since the fire. 120 Front Street thus lost its ability to continue to host a nonconforming two-family residence in November 2012, nearly a year before the LLC bought 120 Front Street."

120 Front Street, LLC v. LeBlanc, et al. (Lawyers Weekly No. 14-013-19) (12 pages) (Vhay, J.) (Plymouth Land Court) (Docket No. MISC 18-000191) (Feb. 21, 2019).

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Title Annotation:120 Front Street, LLC v. LeBlanc, Plymouth Land Court, Massachusetts
Publication:Massachusetts Lawyers Weekly
Date:Mar 4, 2019
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