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

Thu Aug 31 13:15:24 EDT 2023

Thanks Pam,

>From Don's paper, which I have followed closely:

The subdivision plan protection is a build protection and protects the
issuance of a building permit from all zoning changes for an eight year
period.

   - a.
   Owner of a subdivision lot that is conveyed into separate ownership
   after the effective date of any increased zoning requirement must obtain
   the necessary building permit before the expiration of the eight year
   definitive plan protection period. Wright v. Board of Appeals of Falmouth,
   24 Mass. App. Ct. 409 (1987); Tsagronis v. Board of Appeals of Wareham, 415
   Mass. 329 (1993).

Clearly states it is a protection to allow a building permit to be issued
within the protected period, not a separation protection.

Dan Fortier,  AICP
Retired Town Planner

On Thu, Aug 31, 2023, 10:02 AM Pam Kueber <pkueber at gmail.com> wrote:

> Following this thread, found this summary from a while back - great topic:
>
>
> https://www.mass.gov/doc/grandfathered-lots-and-plan-protections-november-30-2009/download
>
> Pam Kueber
> Lenox Planning Board
>
>
>
> On Thu, Aug 31, 2023 at 10:27 AM ruralplanningassociates--- via
> MassPlanners <massplanners at masscptc.org> wrote:
>
>> This excellent vested rights question kept me up last night.
>>
>>
>>
>> Dan’s response was more right-on than mine. But, has caused me to think
>> more fully about what zoning freezes might apply.
>>
>>
>>
>> First, if the subdivision plan was approved in 1977, an 8-year complete
>> zoning freeze for “the land shown on the plan” would begin. This would
>> extend into 1985.
>>
>>
>>
>> Second, as Dan pointed out, when the zoning change occurred in 1980, a
>> 5-year dimensional freeze began for the two adjoining lots in common
>> ownership. This too would extend into 1985.
>>
>>
>>
>> So, by 1986, both freeze periods would have expired. Lot A was issued a
>> building permit in error, but since it was not corrected within 10 years,
>> the dwelling may remain. And, as Dan pointed out, it’s now deemed lawfully
>> non-conforming and subject to those provisions in 40A:6 (so it may
>> reasonably be altered, expanded, etc.).
>>
>>
>>
>> Lot B does not enjoy any zoning freeze protection or the status of lawful
>> non-conformity, so is not now a building lot. A zoning variance for area
>> would have to be obtained, but that may be difficult as the hardship must
>> to owing to lot shape, soils, or topography.
>>
>>
>>
>> Best regards,
>>
>>
>>
>> Jeff Lacy
>>
>> Rural Planning Associates
>>
>> (413) 230-9693
>>
>>
>>
>> *From:* Daniel Fortier <daniel.j.fortier at gmail.com>
>> *Sent:* Wednesday, August 30, 2023 5:43 PM
>> *To:* Jeff Lacy <ruralplanningassociates at crocker.com>; 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?
>>
>>
>>
>> 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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>>
>>
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>>
>
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