View source for CPTC: Vested Rights and Non-conforming Uses and Structures

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".

[[Category:Notes]]