Written by  Michael J. O’Neill, Esq.

The decision of the Appeals Court in Henry W. Comstock, Jr., Trustee and another v. Zoning Board of Appeals of Gloucester and others, authored by Justice James Milkey, illustrates the strong protections afforded by G.L. c. 40 A, section 6 to owners of single- or two-family preexisting nonconforming residences who want to renovate their residences. They are protected by significant obstacles to neighbor opponents of such projects on account of minor issues.

The decision translates the arcane Section 6 in a way that any lawyer, land use planner, and even lay person can understand. It is a must-read for any attorney or client dealing with reconstruction or renovation of a preexisting nonconforming one- or two-family residence.

In Comstock, the Appeals Court addresses an application by the owner of a preexisting nonconforming residence to tear down a dilapidated free-standing garage and replace it with a new garage on the same footprint, three feet higher than the existing garage.

The Superior Court, relying on Deadrick v. Zoning Board of Appeals of Chatham, 85 Mass. App. Ct. 539 (2014), had issued summary judgment in favor of a neighbor opposing the project, on the grounds that the new garage created a new non-conformity because of its height and required a variance, which the owner did not have. The Appeals Court reversed, clarifying its decision in Deadrick and holding that the project was permitted by language in the local zoning bylaw and did not require a variance.

The decision in Comstock explains that, generally, preexisting nonconforming structures lose the protection provided by the statute when the structures are extended or structural changes are made to them. If the structure is a single- or two-family residence, though, the statute provides an additional layer of protection. Such structures can be modified, extended, or reconstructed as of right, so long as the extended or altered structure does not increase its nonconforming nature.

Where the changes do increase the nonconforming nature of a protected residence, however, they can still be undertaken by special permit so long as the permit granting authority finds that the proposed modification would not be substantially more detrimental to the neighborhood than is the existing nonconformity.

The protection afforded to preexisting nonconforming one- and two-family residences does have some important limits. Where the alteration or reconstruction would add an additional nonconformity (not just extension of an existing nonconformity), the owner would need a variance to allow the additional nonconformity.

In addition, according to the ruling, “Municipalities are free to adopt more forgiving rights so long as they do so explicitly.” Gloucester had adopted a zoning ordinance that affords to accessory structures the same extra level of protection afforded to single- and two-family residences. The Appeals Court thus concluded that the freestanding garage was entitled to the same protection afforded to single and two-family residences under G. L. c. 40A, sec. 6 (often referred to as the “second except clause”).

The Appeals Court in Comstock zeroes in on its reasoning in Deadrick to explain why the result in that case was necessary to prevent a gross disparity and why it is not applicable to the facts in Comstock. In Deadrick the Court held that a contrary ruling would create a gross disparity between how owners of conforming structures and nonconforming structure would be treated: an owner of an existing conforming structure could not build an addition that created a dimensional nonconformity without a variance, while an owner of a preexisting nonconforming structure could do so based merely on a finding that the change would not cause substantial detriment to the neighborhood.

Besides, Deadrick did not issue a final resolution of the matter but rather remanded the case to the local zoning board to determine whether the proposed new home was exempt from the height restriction and a variance therefore would not be needed.

The Gloucester zoning ordinance here included a provision that allowed owners to build accessory structures up to twelve feet high and to exceed that height through a special permit process open to owners of conforming and nonconforming structures. Owners who proceeded in this manner would not be creating a new conformity, but would be proceeding in full compliance with the provisions of the ordinance governing height.

The owners in Comstock had obtained a special permit from the zoning board of appeals determining that the new garage would not be more detrimental to the neighborhood. Therefore, the Appeals Court held, the owner’s project to build a new garage was in full compliance with the zoning ordinance and did not need a variance.

The Comstock decision in footnote 1 states that it does not reach the question whether the Legislature intended that the extensive statutory protection afforded to one-and two-family residences also applies to accessory structures, and cited Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357, 362-363 (2008) as a case which touched on that issue. Stay tuned, therefore, as to garages and barns generally.

Bjorklund did far more than just touch on that issue. That decision by Justice John Greaney made a pronouncement as a matter of law that certain specified renovations to one- and two-family preexisting nonconforming residences did not increase their nonconforming nature: “Because of their small-scale nature, [those renovations] could not reasonably be found to increase the nonconforming nature of a structure, and we conclude, as a matter of law, that they would not constitute intensifications.”

Concerns over the making of small-scale alterations, extensions, or structural changes to a preexisting house are illusory. Examples of such improvements could include the addition of a dormer; the addition, or enclosure, of a porch or sunroom; the addition of a one-story garage for no more than two motor vehicles; the conversion of a one-story garage for one motor vehicle to a one-story garage for two motor vehicles; and the addition of small-scale, proportional storage structures, such as sheds used to store gardening and lawn equipment, or sheds used to house swimming pool heaters and equipment.”

id., at 362.

Bjorklund is another must-read for any attorney dealing with issues of reconstruction or renovation of a one or two-family preexisting nonconforming residence.

The Appeals Court decision in Comstock adds a significant historical note, indeed an important advance in linguistic reform, separate from zoning. The Court notes in footnote 11 that the term used to refer to the protection afforded by G.L. c. 40A, sec. 6 to all structures that predate applicable zoning restrictions is commonly known in the case law and otherwise as “grandfathering.” For example, see Burke v. Zoning Board of Appeals of Harwich, 38 Mass. App. Ct. 957, 958 (1995).

The Court describes the origins of the term “grandfather clause,” which originally referred to provisions adopted by some states after the Civil War to disenfranchise African-American voters. The Court declines to use the term “grandfathering” because of its racist origins.

The open question now the subject of list serves and online forums is what term or terms will now be used in substitution for a structure or use that is “grandfathered.” Candidates might include: “prior nonconforming structure/use,” “protected, preexisting nonconforming structure/use,” “lawfully preexisting nonconforming structure/use,” or “prior lawful nonconforming structure/use.” Elsewhere in the country, it is a corollary of “vested rights.” We are accepting nominations!

1Appeals Court No. 19-P-1163