The first two sentences of Section 6 of the Zoning Act, M.G.L. Chapter 40A govern the effect of zoning changes on uses and structures already in existence when the zoning change took place. What is protected is the use or structure which was already there and reasonable expansion of that use or structure. The mechanism for altering a protected use or structure is a finding by the ZBA. Section 125-3 of the Harvard Protective Bylaw requires that such findings be made by a special permit process, with exceptions for de minimus (trivial) cases.
B.
It is the responsibility of the applicant to prove that the structure
or use at issue meets all three of these requirements.
C.
Such structures or uses may be expanded in area or scope only if
the ZBA finds by special permit that the expansion would have been
permissible at the time the structure was erected or the use was begun
and that the expanded use or structure is not more detrimental to
the neighborhood than the current nonconformity.
In the case of a structure which meets § 135-24A(1) through (3) above but which is used as a one- or two-family dwelling, the process must first consider whether the proposed alteration creates or increases the degree or extent of a nonconformity. If there is compliance or no increase, the proposed alteration will be permitted (by special permit or otherwise as provided below). If there is an increase, the alteration may still be permissible (by special permit) provided, among other things, the ZBA finds it to be without adverse impact on the neighborhood.
The following uses and structures do not qualify:
A.
Uses and/or structures whose existence is allowed by variance.
B.
Uses or structures commenced or erected in substantial violation
of the Bylaw. Although an owner of an older structure will not be
required to produce a building permit or similar evidence which is
not ordinarily recorded at the Registry of Deeds or in the Land Court,
it is nevertheless his responsibility to prove that the structure
conformed at the time it was erected.
C.
Uses or structures which are in fact new or which are other than
mere alterations or expansions of an existing use or structure.
Expansions in a use or structure over time will be judged as
a whole from the point of non-conformity, not incrementally from the
last previously granted increase under Section 6, of M.G.L. Chapter
40A.
A.
Through an application for a building permit or special permit, and
most often an application for a mortgage, it is revealed that there
are one or more inconsistencies of the current use or structure with
the ongoing requirements of the Bylaw. In order to receive the benefit
of further permits these inconsistencies or violations must be remedied
by one or more of the following:
(1)
Discontinuance or abandonment.
(2)
Special permit, if the use or structural alteration could have been,
or can be, so authorized.
(3)
Section 6, of M.G.L. Chapter 40A finding or special permit if the
use or structural alteration could have been, or can be, so authorized.
(4)
Variance if the use is permitted in the zoning district.
B.
A hearing process cannot incorporate one of § 135-28A(2), (3) or (4) unless there has been proper notice. In such cases the ZBA may exercise any of the following options:
If the ZBA concludes that the proposed expansion of a structure
or use is de minimus, as defined by § 125-2B(2) of the Protective
Bylaw, it will make all of the required findings under the first two
sentences of Section 6 of M.G.L. Chapter 40A by a majority vote without
a public hearing, provided that in the opinion of the ZBA those findings
do not create a detrimental impact on the neighborhood.
A.
An expansion in use will not be considered de minimus if it involves
a change from one individual use listed in the Bylaw to another, or
the addition of another such use.
B.
An alteration in use will not be considered de minimus if the use
is no longer explicitly permitted in any zoning district or if it
is inherently noisy, smelly, polluting, or otherwise a burden on the
neighborhood.
C.
An alteration of a structure will not be considered to be de minimus
if it involves an increase in footprint of more than 15% or an increase
in gross floor area greater than 15% of the present amounts.
In the case of a proposed alteration of a lawfully existing
nonconforming one- or two-family dwelling, where the change to the
footprint or to the gross floor area is less than 15% of the existing
footprint or area, respectively, the homeowner may apply directly
to the Zoning Administrator (Building Commissioner) for a finding
that the proposed changes do not create or increase the degree or
extent of the nonconformity to the present Bylaw, subject to the following
guidelines and limitations:
A.
The sliding setback provisions of the Bylaw are interpreted as applying
to horizontal setbacks only. The Zoning Administrator may also use
a similar sliding setback for the vertical dimension (one foot of
increased height for every two feet of further distance from the street)
if the dwelling already is higher than its distance to the street,
but not so as to create or increase violation of the thirty-five-foot
height limitation.
B.
The Zoning Administrator may set his own documentation requirements
for making his decision, as long as they are not more stringent than,
and do not conflict with, those of the ZBA. His decision must be made
within 35 days of application.
C.
The Zoning Administrator may not process applications under Section
6 of M.G.L. Chapter 40A where he finds or has found the dwelling or
its use to be in violation of the Bylaw, even if the nature of that
violation appears to be remote from the alteration requested. He shall
in such cases direct the applicant to apply to the ZBA.
D.
The Zoning Administrator may not process applications under Section
6 of M.G.L. Chapter 40A for approval of alterations to buildings in
the historic district(s) unless all of the proposed alterations are
entirely internal to the dwelling and do not alter the use or potential
use of the structure and, in addition, the structure is one which
public records show as being entirely on land owned by the applicant
in fee simple and the entire dwelling complex has vehicular access
from a public street (a public way, or a subdivision road that has
actually been constructed, or a through way maintained for, and used
by, the public) usable in all seasons and in all weather.
E.
If the Zoning Administrator decides that the alterations may proceed,
he shall so notify the ZBA and the Town Clerk. After the Town Clerk
posts a notice of the decision the Building Inspector may issue the
permit for the proposed alterations.
F.
If the Zoning Administrator finds that the proposed alterations to
the dwelling do produce an increase in the degree or extent of the
nonconformity, then the homeowner shall apply anew directly to the
ZBA (the application is nevertheless filed with the Town Clerk) for
a special permit for a Section 6 of M.G.L. Chapter 40A permit that
the proposed alterations do not increase the adverse effect of the
nonconformity upon the neighborhood.
