1 DRAFT Comments on section 3.5.5 and the proposed amendments of the Planning Board February 14, 2023 David Feigenbaum Introduction The Planning Board proposes to ask Town Meeting to amend section 3.5.5 of the Zoning Bylaw to allow adding new nonconformities to nonconforming single-family and duplex structures by special permit rather than by variance. The Bylaw should not be changed in this way because the changes (a) would violate fundamental objectives and principles of zoning recognized by Massachusetts statute and caselaw and (b) would undercut property owners’ reasonable expectations of equitable and predictable treatment of their own and nearby properties. Objectives and principles of zoning Fundamentally, zoning aims to rationalize and organize the uses of land and characteristics of structures to protect the general health, safety, and welfare of its citizens and to maintain and enhance property values. Zoning bylaws achieve these goals by delineating districts and defining uses and structures permitted uniformly in each of the districts. Other uses and structures are strictly prohibited unless covered by explicit exceptions. When no exception is available for a structure, a property owner, under difficult-to-satisfy criteria, may seek a variance from a board of appeals to violate terms of the bylaw. Nonconformities A nonconformity is a feature of a property or structure or a use that violates the terms of the zoning bylaw. Here we focus on nonconformities of structures. The adoption or amendment of a zoning bylaw inevitably causes some structures in districts of a town to acquire pre-existing nonconformities. As time passes, owners often wish to extend those pre-existing nonconformities or even add new nonconformities to their nonconforming structures. The law disfavors nonconformities of structures because they fall squarely outside the defined bounds of the structures that zoning bylaws have been carefully written to allow. Although a core principle of zoning is to constrain and reduce nonconformities of all types, state statutes and bylaws typically grandfather pre-existing nonconformities triggered by zoning bylaw changes. This forgiveness of the zoning nonconformity is considered fair in light of the sudden imposition of the zoning violation caused by the zoning bylaw change. By contrast, fairness and forgiveness would not play a role in a property owner’s voluntary desire to create extensions of pre-existing nonconformities, let alone to add new nonconformities. Those requests to further violate the terms of the zoning bylaws would be gratuitous, not triggered by any action of the town. In any case, such proposed bylaw violations can be permitted by variances granted by the board of appeals. In this sense the owner of a nonconforming property is properly under the same 2 burden as an owner of a conforming property who similarly cannot add new nonconformities without a variance. It would be unfair to treat owners of conforming properties differently in that respect than owners of nonconforming properties. Extended nonconformities Despite these sensible general constraints on extended and new nonconformities, the Massachusetts Zoning Act does allow extensions of pre-existing nonconformities involving single and two-family residential structures when authorized by special permits granted by zoning boards of appeal. This amounts to a form of relief, because special permits are easier to get than variances. Allowing such extensions of pre-existing nonconformities by special permit might be seen as a logical recognition of an owner’s reasonable expectation of being able to construct such an extension under the more relaxed standards of a special permit. New nonconformities But there is no logical basis for allowing a new nonconformity for a nonconforming structure by special permit. A reasonable approach to what constitutes a new nonconformity for a structure can be based on the table of dimensional requirements: a new violation of any line item in the table is a new nonconformity, whether the structure is previously conforming or previously nonconforming Allowing new nonconformities for nonconforming structures by special permit would be inequitable in light of the sensible requirement for a variance when creating a new nonconformity for a conforming structure. Massachusetts zoning law The points stated above are consistent with public policy objectives expressed in the Massachusetts Zoning Act (Chapter 40A), the related court decisions, and the Winchester zoning bylaw. They all recognize this sensible distinction between extensions of nonconformities and new non-conformities by requiring a variance for new nonconformities for pre-existing nonconforming structures while allowing extensions of nonconformities by special permit. Section 6 of Chapter 40A In Chapter 40A, the organization of the first paragraph of section 6 demonstrates its intention to allow certain extensions of nonconformities by special permit while not providing that same relief for new nonconformities. The early clauses of the first paragraph state positively that, after the first notice of public hearing on the bylaw, the bylaw will apply broadly to “any reconstruction, extension or structural change of such structure and to any alteration of a structure ... to provide for its use ... to a substantially greater extent [emphasis added]”. Zoning bylaws regulate and require approvals for such reconstructions, extensions, or structural changes that provide for use of a structure to a substantially greater extent, and this early part of section 6 broadly requires the continued application of those local zoning bylaw requirements. The drafter of section 6, apparently recognizing that exceptions to the breadth of the earlier clauses would need to be articulated explicitly, inserted the following exception: “except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure.” Court opinions have 3 concluded that the phrase “increase the nonconforming nature of said structure” refers to extensions of nonconformities and not to new nonconformities. Had the drafter intended to include another exception for new nonconformities, she knew how to do it and would have done so. But she did not. Because the Appeals Court in the case of Deadrick v. Chatham considered this to be the correct interpretation of section 6, it is worth recounting the decision in detail: Deadrick vs. Chatham (Appeals Court, 2014) In the Deadrick case, the Appeals Court held that, under chapter 40A, §6, while nonconformities can be extended by special permit on a showing of no substantial detriment to the neighborhood, new nonconformities require a variance In that case, the landowner got a special permit from the Chatham board of appeals to reconstruct, on the same footprint, an existing house that was nonconforming for dimensional and coverage reasons. The reconstructed house would be nonconforming for the same reasons as the existing house. But, unlike the existing house, the reconstructed house would also be nonconforming for a new reason: it would be taller than permitted (if it did not have the benefit of a certain height exemption in the Chatham zoning bylaw, for an interpretation of which the Appeals Court sent the matter back to the board of appeals). In addition, the Appeals Court held that the introduction of a new nonconformity (in this case height) to a pre-existing nonconforming structure would require a variance based on the language of the final portion of Section 6, which as noted earlier provides that “Except as hereinafter provided, a zoning ordinance or by-law ... shall apply ... except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure . ...” The question confronted by the Appeals Court was whether the highlighted exception should be interpreted to apply only to extensions of nonconformity or also to new nonconformities. As part of the basis for its holding, the Appeals Court cited the Supreme Judicial Court for the proposition that the interpretation should take account of the important general objective of zoning to eliminate nonconforming uses [emphasis added]: “As the Supreme Judicial Court made clear in Bransford, 444 Mass. at 859, " the ultimate objectives of zoning would be furthered by the eventual elimination of nonconformities in most cases ." (Citation omitted.) See Strazzula v. Building Inspector of Wellesley, 357 Mass. 694, 697 (1970), cert. denied, 400 U.S. 1004 (1971) (considering eventual elimination of nonconforming uses as an objective underlying zoning regulations ). ... [T]he fallacy of the [property owners’] contention that an alteration creating a new nonconformity may be authorized upon a finding of no substantial detriment is illustrated by contrasting a landowner with a conforming structure who wishes to construct an addition that violates the applicable setback requirements ( which would require a variance ) with a neighboring landowner with a nonconforming structure as to height who also wishes to construct an identical addition, also encroaching to the same extent into the required setback ... . Such a result is illogical, given the significantly 4 more stringent burden for a variance ... [citations omitted] compared to the lesser burden for a special permit. "If a sensible construction is available, [a court] shall not construe a statute to make a nullity of pertinent provisions or to produce absurd results." Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376 (2000). Like the Land Court judge, we construe the provisions of the first and second sentences of § 6 together to allow extension of existing nonconformities upon a showing of no substantial detriment, but to require a variance for the creation of any new nonconformity .” It is worth noting that this final highlighted clause of the opinion does not appear to leave room for a local bylaw to switch the approval requirement from a variance to a special permit. Rather the interpretation of section 6 is unequivocal. The existing Winchester zoning bylaw is consistent with this interpretation and arguably cannot be changed to allow new nonconformities by special permit rather than variance Sections 3.5.4 and 3.5.5 of the Winchester zoning bylaw The suggestion that there is a lack of clarity in section 3.5.4 and in the final paragraph of section 3.5.5, shown below, may should be reconsidered. 3.5.4 Variance Required. The reconstruction, extension or structural change of a nonconforming structure in such a manner as to increase an existing nonconformity, or create a new nonconformity shall require the grant of a variance; provided, however, that the extension of an exterior wall at or along the same nonconforming distance within a required yard shall require the grant of a special permit from the Board of Appeals. 3.5.5 Nonconforming single and duplex residential structures Nonconforming single and duplex residential structures may be reconstructed, extended, altered, or structurally changed upon a determination by the Building Commissioner that such proposed reconstruction, extension, alteration, or change does not increase the nonconforming nature of said structure. The following circumstances shall not be deemed to increase the nonconforming nature of said structure: 1. A reconstruction, extension, alteration or change to a structure which complies with all current setback, yard, building coverage, and building height requirements but is located on a lot with insufficient area, where the reconstruction, extension, alteration or change will also comply with all of said current requirements. 2. A reconstruction, extension, alteration or change to a structure which complies with all current setback, yard, building coverage, and building height requirements but is located on a lot with insufficient frontage, where the reconstruction, extension, alteration or change will also comply with all of said current requirements. 3. A reconstruction, extension, alteration or change to a structure which encroaches upon one (1) or more required yard or setback areas, where the reconstruction, extension, alteration or change will comply with all current 5 setback, yard, building coverage and building height requirements. In any other case, the Board of Appeals may, by special permit, allow such reconstruction, extension, alteration, or change where it determines that the proposed modification will not be substantially more detrimental than the existing nonconforming structure to the neighborhood. Section 3.5.4 is clear in its requirement for a variance for extensions of existing nonconformities and creations of new nonconformities (other than the stated exception at the end). This requirement is consistent with the first parts of section 6 as well as section 10 of the Zoning Act. And it applies broadly to any structures. Section 3.5.5, however, states a narrow exception for changes to single-family and two-family dwellings that do not increase the nonconforming nature of the structure, if the building inspector determines that there is no increase in the nonconforming nature of the structure. He can make that finding when the reconstruction, extension, alteration or change of the existing structure complies with the current setback, yard, coverage, and height requirements, if either (a) the lot is too small or has too little frontage, and the existing structure complies with those dimensional requirements or (b) a yard or setback area is encroached by the existing structure. Putting aside the final paragraph of section 3.5.5 for the moment, the beginning of section 3.5.5 clearly mimics the wording of section 6 and should be given the same interpretation as being applicable to extensions of nonconformities and not to new nonconformities. The suggestion that the final paragraph of section 3.5.5 refers to new nonconformities and allows them by special permit conflicts with the clear wording of that paragraph. That final paragraph refers to “such reconstruction, extension, alteration, or change,” necessarily meaning extensions of nonconformities and not to new nonconformities under the court interpretations. And the phrase “in any other case” could not have been meant to include new nonconformities but rather “any other case of a proposed nonconformity that does not increase the nonconforming nature of the structure.” Prior decisions of the Board of Appeals that may have incorrectly interpreted section 3.5.5 to refer to new nonconformities cannot have changed this clear meaning of the final paragraph and cannot serve as legitimate precedents. Conclusion The rules for treatment of nonconformities can be summarized as: Rule 1: Preexisting nonconformities are grandfathered. Rule 2: If there is no extension of nonconformity, no approval is needed. Rule 3: If there is an extension of a nonconformity, a special permit required. Rule 4: If there is a new nonconformity, whether on a conforming structure or a nonconforming structure, a variance required. The important reasons discussed above for not changing Rule 4 are: a. The change would conflict with settled law. b. The change would mistreat owners of conforming structures relative to owners of nonconforming structures.