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When Does a New Non-Conformity Not Require a Variance?

The Zoning Act provides protection for existing structures and uses from changes in local zoning requirements. Central to M.G.L. c.40A, §6, is the idea that an existing structure or use does not become an illegal nonconformity merely because of a change in local zoning. This insulates property owners, but also presents challenges when they wish to make modifications or renovations to their property. Generally, section 6 provides that an alteration to a preexisting nonconformity can be approved if the proposed modification would not be substantially more detrimental to the neighborhood than the existing nonconformity.

Not all proposed modifications are equal, however. In Deadrick v. Zoning Bd. of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014), the Appeals Court distinguished modifications that would increase an existing nonconformity from those that would create a new one. The Court concluded that the creation of a new nonconformity required a variance rather than merely a finding under section 6. As the Court observed, finding otherwise would create an illogical disparity between the owners of structures with preexisting nonconformities and owners of zoning compliant structures.

The Appeals Court’s recent decision in Comstock v. Zoning Bd. of Appeals of Gloucester, expounds upon the rule articulated in Deadrick by addressing what a “new nonconformity” actually means. The defendant homeowners in Comstock had an undersized lot with a dilapidated garage that they sought to tear down and replace with a new garage on the same footprint. The existing garage violated the side and front yard setbacks. The new garage reconfigured the ridge line such that even though the side closest to the plaintiffs’ property would have a lower elevation than the existing roof line, the new garage’s overall height would be three feet greater than permitted for accessory structures that do not comply with setback requirements.

The homeowners received two special permits, one to modify a preexisting nonconforming garage, and a second to exceed the applicable height limitation for the garage by three feet. The trial judge, however, relying on Deadrick, found that the proposal also required a variance to exceed the height limitation. The Appeals Court reversed, explaining that, where the height exceedance could be permitted by special permit pursuant to the local zoning bylaws, no new nonconformity was created, and no variance was required. Absent a specific provision of Gloucester’s zoning ordinance, the height exceedance would require a variance under Deadrick. However, the ordinance permitted nonconforming and conforming structures alike to exceed the 12-foot height limitation under a special permit process. Since construction under a special permit does not create a nonconformity, no variance for the new height was required.

The confusion possibly arises where some zoning bylaws provide for section 6 findings pertaining to modifications of preexisting nonconformities to be made through a special permit process. The important distinction in Comstock is that the height limitation exceedance was allowed by a special permit available to anyone who met the applicable criteria. It was not a section 6 finding issued as part of a special permit, and as the proposal therefore complied with the local zoning without requiring a variance.

The distinctions among a Section 6 finding, a special permit, and a variance can often be tricky to parse. Comstock outlines the four different considerations when viewing a change to a nonconformity:

  1. Is the change so small that it cannot reasonably be said to increase the nonconformity? If so, no section 6 finding is required;

  2. If the change increases the nonconformity, is it not substantially more detrimental to the neighborhood than the existing nonconformity? If not, then a Section 6 finding is issued, by special permit if a special permit is required by applicable bylaw or ordinance;

  3. Is the change permitted under a special permit process applicable to conforming and nonconforming structures and uses alike? If so, then ordinary considerations apply and no Section 6 finding is required; and

  4. Is the change a new nonconformity that is not permitted by any special permit process? If yes, then a variance is required.


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