The end of summer is usually a slower, quieter month for municipalities. Not so this year, with school opening uncertainties, early voting and voting by mail, and preparation for fall town meetings that are likely to be busier than usual. Perhaps this early fall edition of the Miyares and Harrington LLP newsletter will provide some relief. As always, you can continue to stay up-to-date with COVID-19 guidance by reviewing the Client Alerts on our website or by signing up for the Client Alerts.
 
MCLE’s 18th Annual Municipal Law Conference 2020 was held virtually on September 9, 2020. Our own Ivria Glass Fried presented in the morning session on Short-term Rentals, and Donna Brewer and Rebekah Lacey presented in the afternoon on Code Enforcement. The program was recorded and will be webcast on September 23, 2020.
 
Finally, we are pleased to announce that the Miyares and Harrington family is growing. On Labor Day, appropriately, Alex Rubin brought Matthew Lewis Saul into the world. Congratulations and best wishes, Alex and Jason.

This month's newsletter features:
  • Standing Issues in Zoning Cases Continue to Have Legs

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

  • A Note on Language: Grandfathering

  • Trivia
Standing Issues in Zoning Cases Continue to Have Legs
Our readers may remember that, in our October 2019 newsletter, we discussed the Appeals Court’s opinion in Murchison v. Zoning Bd. of Appeals of Sherborn. In that case, the Land Court had dismissed the appeal of a foundation permit, brought by the owners of an abutting parcel, for lack of standing. The plaintiffs had unsuccessfully argued to the Land Court that the property in question did not comply with the Town’s minimum lot width requirement, and that this violation presented a harm to them as abutters, based on density and overcrowding, that was sufficient to confer standing to bring an appeal under M.G.L. c.40A, §17. The Appeals Court agreed with the plaintiffs and reversed the Land Court, ruling that noncompliance with a dimensional zoning requirement was indeed a sufficient harm to establish their standing.
 
In an unusual step, however, the Supreme Judicial Court took up a further appeal and, shortly after its hearing in March, issued an order reversing the Appeals Court and affirming the Land Court’s judgment with a written opinion to follow. The SJC issued its written decision on July 16, 2020.
 
The plaintiffs again argued before the SJC that they had standing to challenge the issuance of the building permit because the dimensional requirement protects against neighborhood overcrowding. The SJC was not persuaded, however, agreeing with the Land Court that “there is nothing to demonstrate that the purpose of Sherborn’s dimensional lot width zoning requirement is to control density or overcrowding generally, or to protect an abutter’s interests in particular.” In doing so, the Court indicated that setback and lot size requirements are more directly related to density than lot width dimensions. The Court further found that “establishing standing requires a plaintiff to do more than allege a zoning violation” and that the abutter had not demonstrated a particularized harm, different from the general concerns shared by the rest of the neighborhood.
 
So when is a density-related harm particular to an abutter? The SJC reiterated previously recognized density-related injuries, such as loss of a view, loss of privacy, and significant reduction in light or air. But it emphasized that speculative or de minimis harm does not suffice to support standing.
 
The discussion of the alleged harm from stormwater runoff is of particular interest in this regard: The two parties had introduced expert engineering testimony regarding whether the stormwater runoff from defendants’ higher elevated lot would cause damage to the plaintiffs’ lower elevated lot once the defendants’ lot was developed. The plaintiffs’ expert assessed stormwater runoff of the lot in question in its natural state and developed state. The defendants’ expert assessed stormwater runoff of the lot in three states – natural, cleared and developed. Since the lot was already partially cleared, and the plaintiffs’ expert did not rebut the defendants’ expert’s opinion that the runoff in a developed state would be less than that in the lot’s partially cleared state, the Land Court found the plaintiff’s expert opinion to be insufficient to establish the plaintiffs’ standing. The SJC found no error in this conclusion.
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.


A note on language: Grandfathering
The Comstock opinion has garnered most attention, not for its holding, but for a footnote on the history of a common term used in zoning and land use law: “grandfathering.” The term has been widely used to refer to the protection that preexisting structures and uses receive from changes in local zoning requirements. In footnote 11, the Appeals Court addressed the use of this term:
 
Providing such protection commonly is known—in the case law and otherwise—as “grandfathering.” We decline to use that term, however, because we acknowledge that it has racist origins. Specifically, the phrase “grandfather clause” originally referred to provisions adopted by some States after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867. See Webster's Third New International Dictionary 987 (2002) (definition of “grandfather clause”); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).
 
The ubiquity of the term in modern zoning practice and its repressed origins arising outside of the land use field do not excuse continued use of a term with racist roots. We applaud the Court’s leadership on this issue and will likewise decline to use the term in our practice. We have no doubt that the real estate and municipal practitioners can become comfortable with another common term that can embrace the meaning of the disfavored term.


Trivia!
 
Question: What dietary staple is the subject of a memorial monument in Charlestown, MA?
 
Last issue's question: Continuing with superlatives, where is the longest mountain coaster in North America?
 
Answer: And we have a dispute! Your abashed editor must say that, although we have tried to limit our trivia to Massachusetts, we failed in this past issue. The Outlaw Mountain Coaster in Steamboat Springs, CO wins the prize at 6,280 linear feet. We were taken in by propaganda for the Thunderbolt Mountain Coaster in Charlemont, which it turns out is not even the longest in New England! However, Thunderbolt is the longest coaster powered by wind turbines and an array of solar panels and features a computer-assisted safety system that stops the coaster if the seat belt is disengaged. Oddly, no one gave us that answer!
 
Winner: Congratulations to Mark Abrahams of The Abrahams Group, who once again burnishes his trivia bona fides.

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