If you own a property in Massachusetts, you can’t do whatever you want with it. The state’s zoning laws and by-laws outline the basic parameters for buildings within each zone. For example, in one particular area, the zone may be designated as residential, while in another, it may be commercial, industrial or open space. Zoning is the preserve of town and city councils and may vary from one municipality to another due to the perceived priorities in each place.
Zoning not only limits new development to broad categories, it also imposes other requirements such as the lot size, height, appearance, design and location of buildings, what sort of commercial enterprises are allowed, etc. Once zoning has been declared in a particular municipality, the restrictions then apply to new developments. For example, if a particular area has been zoned as residential, it would not be possible for someone to open a new restaurant, bar or store in that area. Likewise, if an area has been designated as open space, i.e. reserved for public recreation, then a developer who wanted to build a block of apartments in that area would have to look elsewhere.
Rezoning can upset the apple cart
A municipality does not have to stick to its zoning plans religiously. For one reason or another, councils may decide to change a zoning category from time to time, e.g. to allow for the growth of that suburb, town or city’s population. Old industrial areas which have become abandoned may be rezoned as open space if there is a plan to rehabilitate the area rather than leave it as an industrial eyesore or allow the area to be rezoned as residential so as to accommodate a burgeoning population.
New zoning by-laws and rezoning can catch existing buildings in a potentially difficult situation. If someone had owned and had been running a restaurant in an area for many years, but the area was rezoned as purely residential, or a house that had been built in the late nineteenth century did not conform with building under new zoning regulations, it might seem unfair to make the owners of these properties conform to the new rules. This is where the concept of ‘grandfathering’ comes in.
What happens to existing buildings that do not fit new zoning regulations?
Zoning as a strategy used in urban planning hasn’t been around forever. In most cases, though, municipalities had introduced zoning by the middle of the twentieth century. Rural areas over time may become urbanized; suburbs of cities become gentrified or depopulated; population growth means there is an increasing demand for services; former manufacturing or mining sites are abandoned and create potential for new uses. In order not to disadvantage owners of buildings that no longer conform to changes in municipal by-laws, the state government has allowed such pre-existing structures and their original uses to continue even if their use seems to be opposed to the new regulations. This is what is meant by ‘grandfathering’.
For example, a 1923 house that has been occupied by families for generations as a home may not conform to new regulations after changes in the zoning by-laws. It may now be too small, or too high, or be set back from the adjoining road by too short a distance. However, as long as the building continues to be used for the purposes it was built for and no changes are made which do not conform to the new zoning by-laws, the building will be allowed to stay and remain as a home for its owners. Likewise, the restaurant, bar or grocery store that was operating before the zoning was changed to residential only will be allowed to remain as a restaurant, bar or whatever it had been originally.
The state legislation which allows an exception to pre-existing nonconforming structures is the Massachusetts Zoning Act, G.L. c. 40A, § 6. Note that the term ‘grandfathering’ is not actually used in the text of this section of the Zoning Act. Its use is primarily colloquial.
Limitations on grandfathering in Massachusetts
While state legislation permits pre-existing structures to remain after they no longer conform to new zoning by-laws, there are limitations imposed on their use from then on. For example, a restaurant that had been in existence in a largely residential neighborhood may retain the right to operate as a restaurant after the area is rezoned as residential, but this right to be lawfully nonconforming only exists as long as the restaurant remains open. This means that if the restaurant is closed for a couple of years, then new owners intend reopening it as a restaurant, this may not be allowed.
To sum up, buildings that were lawfully in existence before rezoning may remain unaltered in use or structure after the rezoning has made them ‘lawfully nonconforming’. Continued permission to use the building as a lawfully nonconforming structure may come to an end if the building is:
- abandoned, unused, discontinued or destroyed over a period of at least two years;
- expanded upon, extended or altered in any structural way or used for some purpose that is different from the one that it was originally used for.
Significance of Massachusetts grandfathering laws for new owners or investors
Anyone considering purchasing property in Massachusetts that has been in existence from before the middle of the last century should make sure they find out whether the property conforms to the local zoning by-laws. If prospective new owners or investors are considering any possible modifications to the building they intend purchasing, they should also find out whether the modifications they are considering will make the property no longer ‘lawfully’ nonconforming. Illegal modifications or changes in use can become expensive headaches if the owner or investor hasn’t done the necessary research or has been misled by a real estate agency, whether knowingly or not.
For more information, visit our website Mucci Legal or contact us for a free initial legal consultation today.