In the recent matter of Bellalta v. Zoning Board of Appeals of Brookline 481 Mass. 272 (2019), the Massachusetts Supreme Judicial Court (the “SJC”) ruled that a variance was not required for a homeowner to add a dormer to their roof (only a special permit) despite the additional living space increasing a nonconforming Floor Area Ratio (the “FAR”) and despite there being no such provision in the local zoning by-laws. In this case, the SJC reviewed the statutory framework of Massachusetts General Laws Chapter 40A § 6 (the “Statute”) and clarified decades worth of case law.
The homeowner owned a second-floor condominium in Brookline that was non-conforming when the owner purchased it. The homeowner proposed adding a dormer to the attic, which would increase the living space and therefore also the FAR (FAR compares the gross floor area of the building to the area of the lot upon which it is built). The FAR, which was already slightly over the limit, would become even more so with the added living space. After a hearing involving the petitioner, the architect, town officials and neighbors, the Brookline Board of Appeals (the “Board”) allowed the homeowner’s request for a special permit. An abutter appealed to the Land Court, which found for the homeowner on a motion for summary judgment. The case was appealed to the Appeals Court where the SJC granted an application for direct appellate review.
In its analysis, the SJC discussed the protections afforded to preexisting nonconforming structures and the details of the Statute (pasted below in relevant part) that contains two “except” clauses:
“[1] Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, . . . but shall apply to any change or substantial extension of such use, . . . to any reconstruction, extension or structural change of such structure and . . . to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent [2] except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming structure or use to the neighborhood”
The first “except” clause affords explicit protection to preexisting nonconforming structures (those that became nonconforming due to the enactment of new zoning bylaws) and the second “except” clause allows for an increase in nonconformity provided the special permit criteria has been met.
The SJC concluded that an owner of a single- or two-family residential building with a preexisting nonconformity, who proposes a modification that is found to increase the nonconformity, must obtain a finding that “such change, extension or alteration shall not be substantially more detrimental than the existing nonconformity to the neighborhood.” [The special permit criteria.] The Statute does not require the homeowner to also obtain a variance in such circumstances. This is important because the standard to obtain a variance is much more difficult to meet than that of a special permit. The Statute “sets the floor” throughout the Commonwealth for the minimum protections to be afforded to nonconforming structures. Local bylaws may provide more protection but not less.
