CPTC: Vested Rights and Non-conforming Uses and Structures

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Presented by Barbara Saint Andre, on December 14, 2020.

A vested right is the right to use land for a particular use or structure, where the particular use or structure would be prohibited by the adoption of a new zoning ordinance. The underlying idea is that a person can't be stripped of their property rights without due process. Vested rights are balanced against a municipality's right to regulate land use.

In state law, most of the vested rights provisions are set out in MGL Chapter 40A Section 6. There are also numerous court cases which set precedent. Local zoning bylaws may provide more generous vested rights than Chapter 40A, and it's common for them to do so.

Landowners have the responsibility of proving they're protected under a vested right.

Nonconforming uses and structures are protected as a vested right, if they pre-date the first advertisement of a zoning change. The building permit must be issued before the first advertisement; applying for a building permit is not sufficient. For new permits, construction must begin within twelve months.

Something allowed by variance is not protected as non-conforming.

Non-conforming single and two-family homes are granted special protections. They can be altered or reconstructed, as long as this doesn't result in an increase of the non-conformity. Undersized lots are an example of this. Special permit granting authorities (SPGAs) must issue a permit if a modification doesn't increase the non-conforming nature. When a modification does increase the non-conforming nature, SPGAs must find that it's "not substantially more detrimental to the neighborhood". This is called a "Section 6 Finding". The term "section 6 finding" refers to MGL Ch 40A section 6. Also note that the finding requires a majority vote; rather than the supermajority required for special permits and variances.

Non-conforming uses and structures that aren't single- or two-family homes may be altered, but the SPGA must find that the alteration is not substantially more detrimental to the neighborhood.

Some cities and towns allow the zoning enforcement officer to determine whether a change would increase the non-conforming nature. This saves the applicant from having to appear before the SPGA.

Who makes section 6 findings? It's usually the Zoning Board of Appeals (ZBA), but this can vary by municipality.

What does "substantially more detrimental" mean? Ideally, local regulations should provide guidance in the form of explicit or implicit standards. There are case law precedents for this. For example, see Bjorklund vs. Norwell, 450 Mass 357.

What distinguishes use variances from dimensional variances? If the need for a variance involves something that's not strictly dimensional, then it's a use variance.

Chapter 40A has a protection for separate lots. A lot cannot be rendered unbuildable (for a single or two-family home) if it contains at least 5000 square feet, at least 50 feet of frontage, and is not held in common ownership with an adjacent lot.

Common lot protections protect up to three adjoining lots, as long as each has 7,500 square feet and 75 feet of frontage. This protection lasts for three years.

There are protections for subdivision plans. When a parcel is subdivided, the zoning in effect at the time of subdivision applies for eight years. This protection applies, even if the land is ultimately used in a way that differs from what was portrayed in the subdivision plan. The subdivision plan must be filed before proposed changes are heard (which can be after they're advertised). The zoning freeze remains in effect, even if the planning board rescinds the plan.

ANR (approval not required) plans are protected by a three-year use freeze. Dimensional requirements aren't frozen, but allowed uses are.

There's also a notion of practical prohibition. If a zoning change makes a use unbuildable, there are cases when it can still be built, despite the dimensional regulations.

Under certain circumstances, a planning board may rescind subdivision plans. The zoning freeze remains in effect, even if the plan is rescinded.

Subdivision plans are also protected from changes to other types of laws (e.g., board of health regulations). The freeze isn't limited to zoning.

There is a six-year enforcement limit, if the work is done under a properly issued building permit. Enforcement must take place within six years from the time that the violation began.

If no enforcement takes place after ten years for a non-conforming structure, then it becomes a prior non-conforming structure. This applies whether a building permit was properly issued or not.

Vested rights may be terminated. If a lawfully non-conforming use is changed or extended, it may lose its non-conforming status. The protections end when the use changes, or if the property is used in a substantially different manner than when the non-conforming use began. Local bylaws often have additional provisions in this area.

There is a "powers test" for substantial changes in use, which has three parts. (1) does the new use reflect the non-conforming use when the prevailing zoning took effect; (2) if there a difference in the quality, character, or degree of the use; and (3) does the new use have a different effect on the neighborhood.

There are laws around the merger of non-conforming lots. When adjoining lots under separate ownership come into common ownership, they lose their vested rights protection. For example, suppose a municipality has a 30,000 square foot minimum lot size for construction of a single-family home. Two adjacent, separately-owned 5000 square foot lots (with 50 feet of frontage) are buildable; you can put one house on each. Now suppose these lots came under common ownership. In that situation, you effectively have a single 10,000 foot lot (and can put one house on it). Adjoining lots that come into common ownership are treated as a single lot for zoning purposes.

There are several court cases that establish precedent for what counts as "adjoining". Lots that touch at the corners are not adjoining. Lots that touch along an edge of 13' or greater are considered adjoining. Lots separated by a road or a body of water are not adjoining. The road (or body of water) is a physical barrier that prevents the lots from being used as a single entity.

There are provisions that apply to non-use or abandonment. Protected non-conforming lots remain protected for two years after the non-use or abandonment begins. In this context, abandonment is the intentional act to abandon a use or structure (i.e., abandonment can happen in under two years). Non-use simply means "you don't use it for two years".