Expanding land use laws are a familiar trend in Massachusetts, as zoning and subdivision control regulations become more comprehensive. Despite this trend, existing buildings are generally exempt from new land use regulations that would otherwise render them illegal. These preexisting nonconforming buildings are commonly referred to as “grandfathered.” A Martha’s Vineyard homeowner learned the limits of grandfathering last March, when the Massachusetts Supreme Judicial Court decided Palitz v. Zoning Board of Appeals of Tisbury.
Suzanne Palitz owned a house at 87 Main St. in Vineyard Haven. The house was built in 1803, when Americans were more concerned with the Louisiana Purchase than land use regulations. The Palitz house and two other houses came under common ownership in 1923, before Tisbury adopted its first zoning bylaws in 1959 and subdivision control regulations in 1974. The houses remained in common ownership for over 70 years.
In 1994, a prior owner divided the property into three separate lots, with one house on each lot. The division did not require Tisbury planning board approval, because Section 81L of the Massachusetts subdivision control law exempts such divisions if each new lot has a building that existed when the subdivision control law took effect. Following this division, the Palitz house lot was smaller than the minimum area required under Tisbury zoning, and the house did not conform to setback and frontage requirements. The prior owner obtained a zoning variance from the Tisbury board of appeals in 1995, legalizing the nonconformities.
Palitz bought the property in 2007. The house had sagging floors, unsafe fireplaces and low ceilings. It did not conform to modern building and safety codes. Palitz hoped to replace the house with a new home built within the same footprint, with an additional story. The additional story would comply with Tisbury’s maximum height zoning restriction, but it would block an abutter’s view. The Tisbury building inspector denied Palitz’s building permit application, requiring her to amend the 1995 variance. The Tisbury board of appeals denied Palitz’s variance request, noting the impact of her proposed house on the abutter’s view. She appealed to the Land Court, which upheld the board’s decision. The SJC took up her appeal of the Land Court decision.
Palitz claimed that her house was grandfathered because it existed before Tisbury adopted zoning and subdivision control regulations. Therefore, the 1995 variance was unnecessary in the first place, and her proposed house did not need a new or amended variance. Her argument relied heavily on Section 6 of the Massachusetts zoning act, which states that “a zoning ordinance or bylaw shall not apply to structures or uses lawfully in existence, … but shall apply to any change or substantial extension of such use … [and] to any reconstruction, extension or structural change to such structure … 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.”
Palitz also argued that because her undersized lot resulted from a lot division that was exempt from the subdivision control law under Section 81L, the lot’s zoning nonconformity should be disregarded. The SJC rejected both arguments.
The court held that the house’s nonconformities as to lot size and frontage did not predate Tisbury’s zoning bylaws, but resulted from the property division in 1994 when the bylaws were in full effect. Therefore, the property lacked grandfathered status, and the 1995 variance was necessary to legally establish the property as a separate lot. The court also dismissed her argument that the Section 81L exemption from the subdivision control law entitled her property to special status so she could build her new home without a variance. The SJC pointed out that zoning law and subdivision control law serve separate purposes. While the former regulates building density and uses, the latter ensures vehicular access. According to the SJC, Palitz’s argument that divisions of land under Section 81L immunized land from zoning restrictions was “abrasive to the independent character” of the zoning and subdivision control regimes. The SJC upheld the Land Court’s judgment.
The SJC’s decision prevents Palitz from expanding her dilapidated house beyond its existing envelope without a zoning variance. Given the house’s condition, Palitz is likely to again seek a variance for her property. When she returns to the board of appeals, she would be well-advised to offer architectural plans that preserve her abutter’s view.
