Zoning Update-Is Your Lot GrandfatheredIt is no secret that during the past few years, the value of a parcel
of real estate suitable for single family home development in
Massachusetts has increased at a pace which is unparalleled in
modern history. The demand for new residential housing has
continued unabated, largely due to reasonable mortgage interest
rates. Shortages in the available supply of approved or “buildable”
lots, however, has led to an increased focus on the development of
“grandfathered” lots by builders as well as homeowners to meet the
demand.
Undoubtedly, the most common zoning question faced in the
day to day practice of a land use attorney or zoning practitioner
concerns the issue of whether an existing vacant lot or parcel
of land which does not conform to current zoning dimensional
requirements is “grandfathered” as a “buildable lot” for zoning
purposes. The reasons for the inquiry vary. Builders, real estate
brokers and investors are always on the hunt for property. Owners
are finding that with assessed values increasing, the real estate tax
burden of owning an apparently “buildable lot” adjacent to their
existing home is too much to handle. Local assessors often rely on
old subdivision plans or local zoning provisions to conclude that
vacant land is “developable” and tax it accordingly. Some clients
who may have inherited a property with surplus adjacent land, or
who simply wish to sell and downsize their homes, are increasingly
attempting to maximize their returns in the hot market by selling
off adjacent lots for development. In some cases, property owners
are seeking to create or develop a vacant lot for use by their children
who are otherwise frozen out of the market by today’s prices.
Predictably, the clash between the owner who attempts to retain the
value of the lot he has been “paying taxes on for years” and abutters
or town officials seeking to restrain new development in established
neighborhoods has led to frequent litigation with unpredictable
results. As discussed below, whether a vacant lot is “grandfathered”
for building purposes is a complex question that involves a detailed
analysis. The result can turn on many factors. The Massachusetts
Zoning Act has always contained provisions exempting “once
valid,” established lots from the applicability of the increased zoning
dimensional requirements. These protections for vacant lots are
currently set forth in Massachusetts General Laws, Chapter 40A,
Section 6. That statute contains two sentences which seemingly
exempt certain isolated lots or groups of up to three contiguous
lots from increases in zoning dimensional requirements which
would either prevent them from being built upon, or would require
them to be “merged” for zoning purposes with adjacent land. One
section of the statute provides that “Any increase in area, frontage,
width, yard, or depth requirements of a zoning ordinance or by-law
shall not apply to a lot for single and two-family residential use
which at the time of recording or endorsement, whichever occurs
sooner, was not held in common ownership with any adjoining
land, conformed to then existing requirements and had less than
the proposed requirement but at least five thousand square feet of
area and fifty feet of frontage.” As long as the lot contained modest
area and frontage, “conformed to then existing requirements,” and
was not held in common ownership with adjacent land, the statute
seemed to protect the lot from the application of a dimensional
zoning amendment that would render it unbuildable for single or
two-family use.
To give further protection to established lots, while still increasing
minimum requirements for new development, some communities
have historically adopted local zoning provisions which afford
even more liberal protections to “grandfathered lots” than the
Zoning Act provides. For example, some communities maintained
historical provisions which grandfathered any lots which were
“lawfully laid out by plan or deed” or other similar language,
without regard to minimum size or frontage established by Chapter
40A. In some cases, communities have decided to eliminate these
local grandfathering provisions and defaulted to state law without
regard for the effect those enactments may have on existing lots.
This situation was recently encountered in the case of Rourke v.
Rothman, which was decided by the Massachusetts Appeals Court
on September 26, 2005.
In Rourke, the Appeals Court considered the fate of a lot that had
seemingly existed as a buildable lot in the town of Orleans since
1915. The lot was laid out on a recorded plan and consisted of
8000 square feet, with 80 feet of frontage. Orleans first adopted a
zoning by-law in 1954. Although the by-law required a minimum
of 15,000 square feet and 100 feet of frontage, the by-law contained
an exemption allowing one building to be erected on any lot that,
“at the time this by-law is adopted, either is separately owned or
contains five thousand [5,000] square feet.” In 1961, the by-law was
amended, increasing the minimum lot size to 20,000 square feet
and 120 feet of frontage, but retaining the same exemption. Because
the lot was held in common ownership with one or more adjoining
lots from 1949 to 1970, it did not qualify for protection under
Chapter 40A, but it was protected under the local by-law. In 1970,
the lot was sold. For the first time since its creation, the lot was
separately owned from any adjoining land. Although the lot did not
Zoning Update: Is Your Lot
“Grandfathered” or Just Old?
By James M. Burgoyne, Esq.
RESPONSIVE SOLUTIONS
508.459.8000 | www.fletchertilton.com
contain the minimum area required for a building lot, there was
no question that it was “buildable” under the local by-law which
had protected any lot which “existed” as of the first adoption of
zoning regulation 1954 and had at least 5000 square feet.
In 2001, the lot was purchased by Rothman for $300,000, a
significant sum of money for a house lot, even in a desirable
Cape Cod town. Understandably, Rothman wanted assurance
that the lot was buildable. Before he purchased the lot, the
Orleans building inspector had written two letters, one to the
seller’s attorney and the second to Rothman himself, which
concluded that the lot was “buildable.” Facing challenge by
abutters, the Building Inspector later reversed his decision. On
appeal, both the Orleans Board of Appeals and later the Land
Court found that Rothman’s lot had “lost” its grandfathered
status. In 1971, the town had deleted the by-law’s more liberal
local grandfather provision and replaced it with a provision
allowing development of nonconforming lots for “single
residential use” provided that the lot or parcel complied “with
the specific exemptions of ...Chapter 40A of the General Laws.”
Although at the time of the 1971 amendment, the lot had more
than 5000 feet and 50 feet of frontage and was not held in
common ownership with adjacent land, the question turned on
the requirement of Chapter 40A that an isolated building lot is
protected only if it “conformed to then existing requirements.”
Although the lot did not have the minimum dimensions then
required for new building lots, it was a buildable lot under the
by-law in effect immediately before the amendment because it
complied with the requirements for the exemption. Nevertheless,
the Appeals Court interpreted “then existing requirements”
to which the lot must have “conformed” to be the minimum
area and frontage requirement in effect for new building lots
despite the fact that the lot was then undeniably protected by
the local exemption in effect. The Court stated “... we conclude
that conformance with the “then existing requirements” refers
to the minimum dimensional requirements contained in a
zoning by-law, not to those requirements as exempted by the
grandfather provision of the by-law...” In sum, c. 40A, § 6, does
not grandfather local by-law grandfather provisions...”
One result of this seemingly harsh decision is that in retrospect,
Rothman’s predecessors likely paid real estate taxes to the Town
of Orleans for over 30 years for a lot that the Court decided had
actually been unbuildable since the 1971 zoning amendment
deleted the local exemption. But the consequence was obviously
much more devastating to Rothman. Despite having obtained a
written determination by the local zoning enforcement officer
that the lot was “grandfathered” before investing $300,000,
after four years of appeals and litigation he is now the owner
of a vacant, unbuildable lot of questionable value to anyone. If
nothing else, the Rourke decision again dramatically illustrates
that lot owners or prospective purchasers must be very skeptical
of claims or assumptions that a lot is “grandfathered.” No one
can rely on the opinions of assessors, brokers and even building
inspectors who administer the zoning by-laws. Whether a
nonconforming lot is grandfathered requires careful examination
of the lot’s origin, its history of ownership with adjacent land,
and a careful study of the history of all zoning enactments
and their interplay with the Zoning Act. This usually can only
be reliably done by an attorney who is knowledgeable and
experienced in this area and who can identify the many pitfalls
and minefields which can be encountered with zoning issues in
real estate transactions.
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This material is intended to offer general information to clients, and potential clients, of the firm, which information is current to the best of our knowledge on the date indicated below. The
information is general and should not be treated as specific legal advice applicable to a particular situation. Fletcher Tilton PC assumes no responsibility for any individual’s reliance on the
information disseminated unless, of course, that reliance is as a result of the firm’s specific recommendation made to a client as part of our representation of the client. Please note that changes
in the law occur and that information contained herein may need to be reverified from time to time to ensure it is still current. This information was last updated Fall, 2005.
James M. Burgoyne
P: 508.459.8019
F: 508.459.8319
E: jburgoyne@fletchertilton.com