In its decision today the SJC – on direct appellate review – affirmed a Land Court decision upholding the Brookline ZBA’s grant of a special permit for the landowner to add a dormer window, which would increase the nonconforming floor area ratio set by the zoning bylaw. The SJC, assuming that this change would increase the preexisting nonconforming nature of the structure, addresses whether (as Plaintiff argues) a variance is required, and concluded that a variance is not required.  The SJC prefaces its decision by saying: “We once again construe the “difficult and infelicitous” language of the first two sentences of G. L. c. 40A, § 6, insofar as they concern single- or two-family residential structures. . . .   These statutory provisions set forth both the exemption afforded to all legally preexisting nonconforming structures and uses from the application of zoning ordinances and bylaws, as well as how those protections can be forfeited or retained when such nonconforming structures or uses are extended or altered.  The statute also accords special protection to single- and two-family residential structures in the event that the nonconformity is altered or extended; it is the extent of that protection in the circumstances here that we clarify.”  And later:  “The language of G. L. c. 40A, § 6, has been recognized as particularly abstruse.  See Willard v. Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 20 (1987) (“The first paragraph of G. L. c. 40A, § 6 . . . contains an obscurity of the type which has come to be recognized as one of the hallmarks of the chapter“).”    Click here for the full text of the SJC’s decision.

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