[Massplanners] Subdivsion Lot surving as 'non-conforming' after zoning change?

[Richard Harris]

I would concur with Dan's take on the issue. But, like Jeff, I would like
to hear from either or both of the "Bobs".

Thank you

Richard Harris, AICP
PDR, LLC
Planning Consultant
413-335-5012


On Wed, Aug 30, 2023 at 5:45 PM Daniel Fortier via MassPlanners <
massplanners at masscptc.org> wrote:

> Going to take a little bit of a twist on Jeff’s conclusions. Chapter 40A
> Section 6 provides a five year protection for lots to be built upon. Based
> upon what you provided, that window expired in 1985 and neither lot should
> be build upon. I will let you think about whether the hardship tests are
> met for the vacant lot. The home that was constructed in 1986. On the built
> lot, a change in Chapter 40A Section 7 would now grant it lawful
> pre-existing status to the home as the violation was not enforced for ten
> years after the structure was built.
>
>
>
> My two cents.
>
>
>
> Dan Fortier, AICP
>
> Retired Planner
>
>
>
>
>
>
>
>
>
> Sent from Mail <https://go.microsoft.com/fwlink/?LinkId=550986> for
> Windows
>
>
>
> *From: *Jeff Lacy via MassPlanners <massplanners at masscptc.org>
> *Sent: *Wednesday, August 30, 2023 3:03 PM
> *To: *Douglas Finn <dfinn at edgartown-ma.us>
> *Cc: *Mass Planners <massplanners at masscptc.org>
> *Subject: *Re: [Massplanners] Subdivsion Lot surving as 'non-conforming'
> after zoning change?
>
>
>
> Never sure until either of The Bobs (Mitchell or Ritchie) weigh in, but my
> guess is the lots merged for zoning purposes after the 1980 vote. This was
> because they were then still in common ownership and the so-called Merger
> Doctrine says they merge to meet the new lot size requirements.
>
>
>
> Lot A, by itself was not a legal building lot. But because a building
> permit was issued in error and never challenged within 7 years thereafter,
> the structure and use may remain. However, they are unlawful and not
> subject to the 40A:6 provisions for altering lawfully nonconforming
> structures. No expansion of the use should occur absent a zoning variance.
>
>
>
> Lot B, even if now in single ownership, remains not a building lot absent
> a zoning variance.
>
>
>
> Despite, the Lot B owner could make economic use of the lot by selling to
> owners of Lot A in order to cure the zoning problems there. This would make
> Lot A fully conforming and allow for expansions, etc.
>
>
>
> Jeff Lacy
>
> Rural Planning Associates
>
> (413) 230-9693
>
> Sent from my iPhone
>
>
>
> On Aug 30, 2023, at 2:11 PM, Douglas Finn via MassPlanners <
> massplanners at masscptc.org> wrote:
>
> 
>
> Greetings, folks -
>
> Back again with an interesting story.  Here goes...
>
>  - A subdivision, creating a series of lots of about 1 acre, was
> approved and recorded in 1977.
>  - The developer began selling lots shortly thereafter.
>
>  - In 1980, the Town changed its zoning to require lots to have a minimum
> of 1.5 acres (60,000 square feet)
>
> - At the time of the zoning change, the developer still held title to two
> adjacent lots.
>
> - One of these two lots (lot "A") was sold in August 1981, the other (lot
> "B") in October 1981.
>
> - Lot A was developed for residential use in 1986.
>
> - Lot B lot remains undeveloped, but has been held by the original buyer
> since that time.
>
> Now comes someone wishing to develop the lot.
>
> Does that lot have status as pre-existing non-conforming?
>
> If not, did that lot lose that status in 1980?  or at some later point?
>
> Any section of the General Law, or any Case Law that you could cite would
> be very helpful.
>
>
>
> Thanks,
>
> - Doug.
>
> ============================
>
> Douglas Finn
>
> Assistant Pro Tem
>
> Edgartown Planning Board
>
> 508-560-6602
> dfinn at edgartown-ma.us
>
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