In a previous post we discussed Gale v. Zoning Board of Appeals of Gloucester (pdf) and the “difficult and infelicitous” language of the first two sentences of M.G.L. c. 40A, § 6 governing nonconforming uses and structures. In Gale, the Appeals Court upheld the grant of a special permit authorizing the reconstruction of a single-family house that increased existing setback nonconformities. The court ruled
that in such circumstances, the special permit must include a so-called Section 6 finding, i.e., a finding that the project will not be substantially more detrimental to the neighborhood than the existing nonconformity. The Gale court made no distinction between a reconstruction that increases existing nonconformities and one that creates new nonconformities. Under Gale, then, the owner of a nonconforming single- or two-family house arguably could undertake a reconstruction that created new nonconformities upon the issuance of a special permit – no variance would be required.
In its recent decision in Deadrick v. Zoning Board of Appeals of Chatham (pdf), the Appeals Court reconsidered this aspect of Gale. In Deadrick, the court found that, under M.G.L. c. 40A, § 6, there’s a difference between a reconstruction that increases existing nonconformities and one that creates new nonconformities. The former may be authorized by a special permit and Section 6 finding; the latter requires a variance.
The Appeals Court based its decision in Deadrick largely on what it perceived to be an illogical result if new nonconformities could be approved by special permit. The court noted that, until now, it appeared (based on the language of Gale) that the owner of a fully conforming house who wished to build an addition that violated setback requirements would need a variance, while the owner of a nonconforming house who wished to build an addition that similarly violated setback requirements could do so with an easier-to-obtain special permit and Section 6 finding.
After Deadrick, it’s clear that the owner of a nonconforming single- or two-family house needs a variance for any reconstruction that creates new nonconformities. However, that owner can still expand existing nonconformities with just a special permit and Section 6 finding.