Navigating the intricacies of Massachusetts real estate law can be challenging, especially when it comes to understanding preexisting nonconforming uses and structures as defined in G.L. c. 40A, § 6. Many consider this statute complex and somewhat ambiguous.. This article aims to clarify the essentials of § 6 and its implications for property owners.
What Are Preexisting Nonconforming Uses and Structures?
A “nonconforming use” or “structure” refers to those that were legally established before a zoning bylaw change rendered them non-compliant. According to G.L. c. 40A, § 6, these uses and structures are permitted to continue without adhering to the new zoning regulations, provided they were lawful at the time they began. Changes to the zoning bylaw do not retroactively apply to structures or uses that were lawfully in existence or lawfully begun before the public hearing notice regarding the new bylaw was published.
However, it’s important to note that the protections of § 6 do not extend to any modifications that would constitute a substantial change to the use or structure, nor do they apply to a significant extension or alteration of the property. For example, if a structure is modified for a substantially different purpose or in a significantly different manner, it must comply with the current zoning regulations.
The decision in Bellalta v. Zoning Board of Appeals of Brookline, 481 Mass. 372 (2019) emphasizes that once a zoning board of appeals finds “no substantial detriment to the neighborhood,” a nonconforming use or structure can be modified without the need for a variance. This ruling is particularly beneficial for homeowners and businesses wishing to make adjustments while avoiding complex regulatory hurdles. To read my case summary of the Bellata decision, click this link.
It is important to note that if a use or structure was never lawful from the outset, then the protections of § 6 will not apply. In Bruno v. Bd. of Appeals of Wrentham*, 62 Mass. App. Ct. 527 (2004), the court clarified that only those uses that were lawful at the time of their inception can claim protections under this statute.
Municipal Bylaws and State Statutes
Municipal bylaws cannot conflict with state statutes, which means local zoning laws cannot strip away the protections offered by § 6. In the Bellalta case, the court reinforced that local bylaws requiring variances or special permits for residential structures would not be valid. Conversely, local bylaws can provide additional protections for nonconforming uses and structures. In this way, Section 6 serves as floor, rather than a ceiling.
The Three-Prong Test for Modifications
To determine whether modifications to a nonconforming use are permissible under the new zoning bylaws, the courts apply a three-prong test established in Powers v. Building Inspector of Barnstable, 363 Mass. 648 (1973):
- Does the modified use reflect the nature and purpose of the original use when the zoning bylaw took effect?
- Is there a significant difference in the quality or character, as well as the degree, of the use?
- Is the current use different in kind regarding its impact on the neighborhood?
If any of these criteria are not met, the modification may be subject to the new zoning bylaws.
Section 6 Findings
Under § 6, if a building permit or special permit is issued before the publication of notice for a new bylaw, that bylaw does not apply to the issued permit. If a permit-granting authority, such as the building inspector or zoning board of appeals, determines that the changes are not substantially more detrimental to the neighborhood than the existing nonconforming structure, then modifications can proceed. This determination is referred to as a Section 6 Finding.
The Risk of Abandonment
It is crucial for property owners to be aware that the protections for nonconforming uses or structures can be lost if the use is abandoned for two or more years. This aspect emphasizes the importance of active engagement with your property to retain its nonconforming status.
Recent Amendments to § 7
In 2016, G.L. c. 40A, § 7 was amended to address structures built in violation of zoning ordinances. If no enforcement action has been initiated within ten years of a structure’s construction, it is deemed legally nonconforming and may be modified under § 6. However, until this ten-year period has elapsed, such structures are still considered illegal, which could complicate their status in future legal matters.
Conclusion
Understanding the implications of preexisting nonconforming uses and structures under G.L. c. 40A, § 6 is vital for property owners in Massachusetts. As real estate law continues to evolve, it is prudent to consult with an experienced attorney to ensure compliance and to protect your property rights effectively. Whether you’re a homeowner looking to modify your property or a developer navigating zoning laws, being well-informed can significantly impact your success in real estate ventures.
