[Amended 11-18-2024 AFTM by Art. 36, approved 2-28-2025]
(1)
Nonconforming structures and uses and lots - Nonconforming structures, uses, and lots shall be understood to mean structures, uses, and lots that do not conform to the Zoning Bylaw. Nonconforming structures, uses, and lots that had conformed to the Zoning Bylaw, but that became nonconforming upon adoption or amendment of the Zoning Bylaw, shall be understood to be lawful, pre-existing nonconforming structures and uses. Additionally, where state law expressly declares a nonconforming structure to be deemed a legally nonconforming structure - such as in MGL c. 40A, § 7, and in § 240-10.3 of this bylaw - it shall be understood to be a legally nonconforming structure in the application of both state law and this bylaw.
(3)
Governing provisions - Except as otherwise expressly governed by other sections of this bylaw, the provision of Article 10, shall govern.
(4)
Purpose - It is the purpose of this bylaw to regulate nonconforming structures, uses, and lots.
(1)
First notice - "First notice" refers to the first notice of the Planning Board public hearing on a zoning bylaw or map amendment as required by MGL c. 40A, § 5.
(2)
Chapter 40A, § 6 conflict - No provision of this bylaw shall be interpreted or applied so as to conflict with the preemptive provisions of MGL c. 40A, § 6. Zoning bylaws adopted and amended shall not apply to:
a.
Building permits - building permits issued before the first notice provided that construction commences within 12 months after the issuance of the permit and is thereafter continued through to completion as continuously and expeditiously as reasonable and provided further that no design changes occurring after the issuance of the building permit shall increase the intensity of the development of the building to which the building permit relates.
b.
Special permits - special permits issued before the first notice provided the special permit has been exercised within a period of 12 months.
c.
Uses lawfully begun - uses lawfully begun before the first notice. However, this bylaw shall apply to any change or substantial extension of such use.
d.
Structures lawfully in existence before the first notice - Except as stated in the preemptions listed in § 240-10.1B(1)e, the Bylaw shall apply to:
e.
Single- and two-family residential structures - Zoning bylaws adopted or amended shall not apply to the alteration, reconstruction, extension, or structural change to a single or two-family residential structure that does not increase the nonconforming nature of the structure. Where the alteration, reconstruction, extension, or structural change increases the nonconforming nature of the structure, that exemption shall apply where the Zoning Board of Appeals finds that it is not substantially more detrimental to the neighborhood.
f.
All other structures - Zoning bylaws adopted or amended shall apply to the alteration, reconstruction, extension, or structural change to all structures other than those preempted under § 240-10.1B(1)e, above, where the Zoning Board of Appeals finds that the alteration, reconstruction, extension, or structural change:
(1)
Lawful structures/uses not applicable - Except as otherwise provided, Article 10 shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building permit or special permit issued before the first notice of public hearing.
(2)
Lawful structures/uses applicable - However, this bylaw shall apply to the following:
a.
A change or substantial extension of the use referenced in (1) above, or
b.
A building permit or special permit issued after the first notice of the public hearing, or
c.
Any reconstruction, extension, or structural change of such structure, or
d.
Any alteration of a structure begun after the first notice of a public hearing to provide for its use in a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent, except where alteration, reconstruction, extension, or a structural change to a one-family or two-family residential structure does not increase the nonconforming nature of the structure.
(3)
Extension or alteration of pre-existing nonconforming structures/uses - Pre-existing nonconforming structures or uses may be extended or altered, provided no extension or alteration shall be permitted unless there is a finding by the Zoning Board of Appeals that the extension or alteration shall not be substantially more detrimental to the neighborhood than the existing nonconforming structure or use.
(4)
Conformance with bylaw amendments - Construction or operations under a building permit or special permit shall conform to any subsequent amendments to this bylaw unless the use or construction is commenced within a period of 12 months after the issuance of the permit and, in cases involving construction, unless that construction is continued through to completion continuously and expeditiously.
(5)
Two or more residential dwellings on a single lot - Anything to the contrary in this bylaw notwithstanding, § 240-10.1C shall not apply to the residential use of two or more dwellings on a single lot, which shall be deemed a preexisting nonconforming use if commenced prior to May 19, 1959. This use may only be altered, extended, or modified by special permit provided the Zoning Board of Appeals finds, through a preponderance of credible evidence, that the use commenced prior to May 19, 1959, and has not been abandoned or not used for a period of two years or more. In approving any alteration, extension, or modification the Board shall require that the number of dwelling units be limited to the same as in existence on May 19, 1959.
This section shall not apply to accessory dwelling units as regulated in § 240-9.1 of this bylaw.
(6)
Structures in existence as of January 1, 1970 - Any residential structure in existence as of January 1, 1970, not protected by the sections of Article 10, will be deemed to be conforming to the dimensional requirements of these bylaws, but any alteration, reconstruction, extension or structural change must conform to the current bylaw dimensional requirements.
(7)
Height increase - In cases where the applicant seeks to increase the height of any structure that encroaches on a required setback, where any increase in height will occur within the encroachment, there shall be no alteration as of right under this section.
(1)
Not increasing the nonconforming nature of a structure/use - Wherever in this bylaw reference is made to not increasing the nonconforming nature of a structure or use or to any alteration, reconstruction, extension, or structural change thereof, there being no statutory definition or otherwise prescribed meaning that must be assigned thereto, that determination shall be understood to be governed by the express provisions of this bylaw that specifies its meaning and application to particular structures or uses.
(2)
Not substantially more detrimental - Wherever in this bylaw reference is made to a determination that a structure or use, or to any alteration, reconstruction, extension, or structural change thereof, is not substantially more detrimental to the neighborhood, that determination shall be made only upon the permit granting authority or special permit granting authority making a finding, including supporting reasons, for the particular structure or use.
(1)
Permitted - Alteration, reconstruction, extension, or structural change to a single-family or two-family residential structure, or accessory structure thereto, that that does not increase the nonconforming nature of that structure shall be permitted.
(2)
Finding required - No alteration, reconstruction, extension, or structural change to a single-family or two-family residential structure, or accessory structure thereto, that increases the nonconforming nature of that structure, or creates a new nonconformity, shall be permitted unless there is a finding by the Board of Appeals that the proposed alteration, reconstruction, extension, or structural change will not be substantially more detrimental to the neighborhood.
(1)
Variance required - No alteration, reconstruction, extension, or structural change to any structure, other than a single-family or two-family residential structure governed by § 240-10.2A above, that increases the nonconforming nature of that structure, or creates a new nonconformity, shall be permitted except by the approval of a variance by the Zoning Board of Appeals.
(2)
Finding required - Alteration, reconstruction, extension, or structural change to any structure other than a single-family or two-family residential structure that does not increase the nonconforming nature of the structure may be allowed upon a finding by the Zoning Board of Appeals that it will not be substantially more detrimental to the neighborhood.
The provisions of § 240-10.3 govern structures and uses in existence so as to conform to the provisions of MGL c. 40A, § 7.
(1)
Status as a legally nonconforming structure - The following requirements shall be used to determine if a structure is a legally nonconforming structure:
a.
If real property has been improved by the erection or alteration of one or more structures, and
b.
If the structures or alterations have been in existence for a period of at least 10 years, and
(2)
Legally nonconforming use - A nonconforming use of a structure may be changed to another nonconforming use by special permit, provided the permit granting authority finds that the new use is not substantially more detrimental to the neighborhood than the existing use.
(3)
Ten-year limit to file civil or criminal action - No criminal or civil action intended to compel the removal, alteration, or relocation of a structure by reason of an alleged violation of MGL c. 40A or of this bylaw, or the conditions of a variance or special permit, shall be maintained unless the action, suit, or proceeding is commenced and notice is recorded within 10 years of the commencement of the alleged violation. Structures that qualify under this provision shall be considered to be non-conforming structures and are entitled to treatment as provided in the section.
(4)
Six-year limit if in conformance with the building permit - If real property has been improved and used in accordance with the terms of the original building permit, no criminal or civil action intended to compel the abandonment, limitation, or modification of the use allowed by the permit or the removal, alteration, or relocation of a structure erected in reliance upon the permit by reason of an alleged violation of MGL c. 40A or of this bylaw or the conditions of a variance or special permit, shall be maintained unless the action, suit, or proceeding is commenced and notice of the action, suit, or proceeding is recorded within six years of the commencement of the alleged violation.
Lot change - Any lot, or open space on a lot, including yards and setbacks, shall not be reduced or changed in area or shape such that the lot, open space, yard, or setback is made nonconforming or more nonconforming unless a special permit has been granted under the provisions of this bylaw. However, this section shall not apply in the case of a lot where a portion of the lot is taken for a public purpose.
(1)
Applicability - The erection, extension, or moving of a structure or the creation or change in size or shape of a lot (except through a public taking) shall meet the minimum requirements set forth in Article 11, Dimensional Regulations, unless otherwise expressly provided by this bylaw or by MGL c. 40A, § 6. The shape of two or more contiguous existing lawful building lots may be changed provided the area of each lot remains the same or meets the current minimum requirements in the zoning district and the total number of buildable lots is the same or less. No lot reconfigured under this § 240-10.4B shall lose its buildable status, and no lot shall be made nonconforming.
(2)
Lot division - Where a lot is formed from a part of a lot already occupied by a building, such separation shall be affected in a manner as not to impair any of the requirements of this bylaw with respect to the existing building and all yards and other open space regarding the lot and no permit shall be issued for the erection of a new building on the new lot unless it complies with all provisions of this bylaw.
(3)
Nonconforming lots - Any nonconforming lot having at least 50 feet of frontage on a street shall be eligible to apply for a building permit, if it conforms to the provisions of any of the following Subsections (3)a through (3)g.
a.
Any increase in area or lot width requirements in the Zoning Bylaw shall not apply to a lot shown on a plan, or described in a deed duly recorded at the Registry of Deeds as of January 1, 1981, for single-family residential use which at the time of the Zoning Bylaw change:
b.
Any lot not held in common ownership with any adjoining land as of January 1, 1981, not protected by § 240-10.4B(3)a, shall be eligible to apply for a building permit if the lot has at least:
c.
Any lot not held in common ownership with adjoining land as of January 1, 1981, not protected by §§ 240-10.4B(3)a and (3)b, may apply to the Board of Appeals for a special permit to construct a single-family residence, if the lot has at least 7,200 square feet of area. If the petitioner's lot is located within a Water Resource Protection District, or within 300 feet of an estuary, hereinafter defined as a saltwater passage, wherein the tide meets a flow of freshwater, or within 300 feet of a tidal marsh, tidal pond, or tidal river as defined, or within 300 feet of a water body listed in § 240-7.2, the Coastal Pond Overlay District, the Zoning Board of Appeals shall require:
i.
Information on the location of public and private wells within 300 feet of the site;
ii.
A nutrient analysis of the receiving waters, taken from the site or from adjacent, undersized lots;
iii.
A projection of the cumulative impact on water quality with the increased density; and
iv.
A determination that the majority of the lots within the neighborhood are already developed, in addition to the criteria specified in § 240-12.1E.
The Zoning Board of Appeals is encouraged to transmit the petition referred to in (3)ci-iv above to the Board of Health, the Board of Public Works, and the Planning Board, in accordance with § 240-12.1G. The responses of the Boards to which the petition is referred shall become a part of the decision record. The Zoning Board of Appeals may impose certain restrictions designed to protect or improve the water quality of the area, including, but not limited to: | |
i. | A requirement to keep the lot in its natural vegetative state; |
ii. | Maximum lot coverage; |
iii. | Limitations on other ordinarily permitted uses which would tend to degrade the water quality; |
iv. | Seasonal uses; and |
v. | Other health and environmental hazards. |
d.
Any lot that was vacant as of January 1, 1981, and was held in common ownership with adjoining lots may be treated as not held in common ownership if, as of January 1, 1981, a dwelling was in existence on all the other commonly held, contiguous lots, or if subsequent to January 1, 1981, the lot was no longer held in common ownership and a dwelling was permitted by special permit on each of the adjoining lots.
e.
Any lot not held in common ownership with any land as of January 1, 1981, not protected by Sections 240-10.4B(3)a or (3)b, may be eligible to apply for a building permit, without the benefit of the special permit required under Section 240-10.4B(3)c, if either:
i.
The petitioner acquires another undersized vacant lot within the subdivision or immediate surrounding neighborhood and records a covenant at the Registry of Deeds running in favor of the Town prohibiting the erecting of any structure thereon; or
ii.
The petitioner acquires the development rights on another undersized vacant lot within the same subdivision and covenants a permanent development restriction against the development rights on the subject lot, such that the total of the area of the lot to be built upon plus the assignable area of the lot to be restricted equal the minimum size requirements of § 240-10.4B(3)a.
More than one petitioner may participate in the acquisition of the undersized vacant lot or the entire lot, as long as the sum of the restricted development area assignable to each petitioner does not exceed the sum of the area of the restricted lot. |
f.
Any lot held in common ownership with any adjoining land as of January 1, 1981, not protected by Section 240-10.4B(3)d, may apply to the Planning Board for a special permit to construct a single-family residence on the following two conditions:
i.
That the lots are on roads which have been constructed as of April 1, 1982, in accordance with Chapter 305, the Subdivision Rules and Regulations of the Town of Falmouth, and
ii.
That if the lots are re-subdivided so that the total area of the commonly held lots, when divided by the number of building permits to be requested, results in an area of land per single-family residence that equals at least 75% of the existing requirements for that zoning district.
The additional criteria specified in § 240-10.4B(3)c shall also be considered. In addition, the Planning Board may set aside one of the created lots as an open space lot as allowed under MGL c. 41, § 81U. |
g.
Any lot in an RB or AGB Zoning District, shown on a plan or described in a deed duly recorded at the Registry of Deeds before January 1, 1975, with an area of at least 20,000 square feet, shall be eligible for a building permit by right, as long as the lot width is 100 feet or greater, provided that the lot conforms to all other requirements of the Zoning Bylaw.
h.
Any lot in a GR, RC, RB, RA, AGB or AGA Zoning District not held in common ownership with adjoining land as of January 1, 1994, shown on a plan filed at the Registry of Deeds before April 4, 1988, with an area of at least 45,000 square feet, lot width of at least 150 feet, and frontage of at least 100 feet, shall be eligible for a building permit by right. In addition, on any such lot otherwise ineligible for a building permit the number of bedrooms shall not exceed one bedroom per 13,500 square feet of lot area, unless additional bedrooms are allowed by special permit. The Board of Appeals shall impose conditions to preserve and protect existing and potential sources of drinking water, including required use of a sewage disposal system with enhanced nitrogen removal.
(4)
One dwelling per lot - Not more than one dwelling shall be erected on a single lot, except for multifamily use as allowed within designated zoning districts.
(5)
Two or more dwellings per lot - An existing, nonconforming use of two or more structures on a single lot, as of January 1, 1981, not previously used for year-round habitation, may not be altered, reconstructed, extended or changed structurally, except by special permit from the Board of Appeals. Year-round habitation is deemed to be an extension of use.
(1)
Damage & restoration - Reconstruction of a legally nonconforming structure damaged or destroyed by fire or other accidental or natural cause, other than flood damage sustained to structures within Zones A and V Floodplains shown on the Flood Insurance Rate Maps of Falmouth, shall be allowed if:
a.
The reconstruction is substantially in the form it had at the time of damage or destruction;
b.
The reconstruction is in any form if within applicable setback requirements and not larger than previously; and
c.
If reconstruction is started within 24 months, and completed within 36 months, of the damage or destruction.
(2)
Use abandonment - A specific nonconforming use shall be considered abandoned when the premises have been converted to another specific use, whether conforming or nonconforming, or when the characteristic equipment and the furnishing of the nonconforming use has been removed and has not been replaced by similar equipment within two years, unless other facts show intention to resume the nonconforming use.
(3)
Abandonment & reestablishment - A nonconforming use that has been abandoned, demolished without reconstruction, or not used for a period of two years, shall lose its protected status and shall be subject to this bylaw; however, the Zoning Board of Appeals may grant a special permit for the reestablishment of a nonconforming use where such reestablishment does not result in substantial detriment to the neighborhood. In determining if the proposed reestablished use would be detrimental, the Board shall consider the following:
a.
Lot size;
b.
Existing building coverage;
c.
Available on-site parking;
d.
Traffic patterns;
e.
Access to public ways;
f.
Intended use of the site and/or structure; and
g.
Protection of public safety and convenience.
h.
The extent to which the abandoned structure has deteriorated due to the neglect of the property owner.
(4)
Unsafe structure - A nonconforming structure determined by the Building Commissioner to be unsafe may be restored to a safe condition, provided the work on that structure shall be completed within one year of the determination that the structure is unsafe and the restoration work shall not place the structure in greater nonconformity. The Board of Appeals may extend the one year time limit by the grant of a special permit.
(1)
Standards and criteria - Recognizing the need to provide guidelines for determining actions that may be substantially more detrimental to the neighborhood and the Town, and recognizing there are basic and consistent principles of zoning which are broadly accepted, the following standards shall apply to the granting of a special permit, or in making a finding that a structure or use is not substantially more detrimental:
a.
The factors enumerated in § 240-12.1E.;
b.
The change, alteration, or extension of the structure or use may be allowed as maintaining or lessening any nonconformity without having to meet existing dimensional requirements; however, the extension of a structure may be considered substantially more detrimental after the Zoning Board of Appeals considers whether the extension extends or creates a new dimensional nonconformity, impairs views or vistas, or does not reasonably conform to the average dimensions found in the neighborhood; and
c.
Where the proposed use is regulated by other sections of this bylaw, the applicable standards of those sections shall also be considered in determining whether the proposal is substantially more detrimental.
(2)
Finding - Whenever a finding is prescribed in this bylaw it shall be understood to mean facts found by the Zoning Board of Appeals in accordance with procedures established by the Board that are consistent with state law. The Zoning Board of Appeals may adopt procedures analogous to those used for special permit applications, so long as the Board's final action is limited to making the finding or findings specified in this bylaw.
(1)
Alteration - Alteration, reconstruction, extension, or structural change to a nonconforming single-family or two-family structure shall not be considered an increase in the nonconforming nature of the structure and shall be permitted by right under the following circumstances:
a.
Normal repairs or replacement of parts of any nonconforming structure, provided this repair or replacement does not constitute an extension of a nonconforming use of the structure;
b.
Alteration to a conforming structure where the alteration will also comply with all applicable sections of this bylaw in effect at the time of application, if the existing structure is located on a lot which is nonconforming as the result of a zoning change;
c.
Alteration within the existing footprint of a nonconforming structure to comply with requirements of the Massachusetts Building Code;
d.
Alteration to a nonconforming structure where the alteration will comply with all applicable sections of the Zoning Bylaw in effect at the time of application and will not increase the habitable space;
e.
Alteration to a nonconforming structure on a lot of at least 20,000 square feet, where the alteration will comply with all applicable sections of the Bylaw in effect at the time of application, including, setback, yard, building coverage, and height requirements.
(2)
Interior alteration - Interior alteration of any otherwise conforming structure that does not change the nature of, nor increase the intensity of, a nonconforming use, and interior alterations of preexisting nonconforming structures for a use or uses that are otherwise allowed by zoning is exempt.
(3)
Commercial accommodation structure - Reconstruction of any permitted commercial accommodation structure or unit(s), if for the purpose of rehabilitation or upgrade, and if the commercial accommodation was licensed and operational for the three years prior to the rehabilitation upgrade is exempt. The reconstruction shall not allow rebuilding at a greater density, greater height, or at a different location than previously existed.
(4)
Accessory uses & structures - Accessory uses and structures are not exempted under § 240-6B.