SJC Rules that Increasing the Size of a Residence on an Undersize Lot Increases the Nonconformity Triggering the Need for Zoning Relief

Beveridge & Diamond, P.C. - Massachusetts Environmental, Land Use & Real Estate Alert, February 2008

Noting concern among municipalities regarding the trend of “mansionization,” the Supreme Judicial Court recently issued a decision limiting the ability of owners of undersized lots to replace existing structures with larger but otherwise conforming homes. In Bjorklund v. Zoning Board of Appeals of Norwell, 450 Mass. 357 (2008), the Court considered whether the proposed replacement of an existing single-family residence on an undersized lot with a larger home that would satisfy all other dimensional requirements of the zoning bylaw would “increase the nonconforming nature of the structure” so that it could not be constructed as of right. The majority of the Court answered in the affirmative.

Under the Zoning Act, existing structures and uses are protected from changes in zoning requirements. G.L. c. 40A, § 6. Such preexisting single and two-family residences may be reconstructed, extended, or altered as of right so long as those changes do not “increase the nonconforming nature” of the structure. If a proposed alteration does increase the nonconformity, it may be authorized only upon a finding by the special permit-granting authority that the proposal is not “substantially more detrimental that the existing nonconforming use to the neighborhood.”

The Bjorklund plaintiffs owned a single-family residence on a lot consisting of .792 acres in a zoning district where the current requirement was 1 acre. The property owners proposed to tear down the existing 675 square foot home and replace it with a new house containing 3,600 square feet of living space. The larger house would conform with all other zoning requirements, so the sole issue was whether the reconstruction would increase the nonconforming nature of the structure because of the undersized lot.

Despite the plaintiffs’ arguments that the proposed reconstruction would have no impact on the lot size and therefore no impact on the sole nonconformity, the Court adopted the position that increasing the size of a structure on such a lot could have impacts to density, the natural characteristics of an area, and other planning concerns that constitute a reasonable exercise of a municipality’s police powers. The Court also noted that many municipalities “do not welcome the building of structures that represent the popular trend of ‘mansionization’” that decreases the availability of “starter homes” and could potentially exclude low to moderate income families. 

Generally, a ruling that a proposal would increase the nature of the nonconformity would require project proponents to apply for a finding from the special-permit granting authority that the project would not be substantially more detrimental to the neighborhood in the existing house.  In Bjorklund, however, the Zoning Board in prior proceedings had already made a determination that the project would be detrimental to the neighborhood and the plaintiffs did not challenge that decision. Therefore, the reconstruction could not go forward as proposed.

The ruling does not prevent plaintiffs and other owners of undersized lots from reconstructing or modernizing an existing house with in the existing structure’s footprint and living area. The Court also made a specific ruling that small-scale alterations including the additions of dormers; porches; a single-story, two-car garage; or small-scale sheds would not constitute intensifications of use that would require a finding by the special-permit granting authority.

For more information, please contact Brian Levey at blevey@bdlaw.com or Marc Goldstein at mgoldstein@bdlaw.com.