Pierce & Mandell, P.C. partner, Michael C. Fee,
a member of the Council of the Boston Bar Association, recently
participated in the BBA's efforts to pass a zoning reform measure that
the organization has championed since 1995. House Bill 3611 was signed
into law by Governor Baker on August 5, 2016 and provides much needed
clarification to the Massachusetts Zoning Act, G.L. c. 40A, § 7.
Most do not realize that the Massachusetts zoning statute was first
enacted into law in the 1920's. While it underwent significant overhaul
in both the Fifties and Seventies, in many ways it remains today an
historical anachronism, full of dense language and land use principles
perhaps better suited to less complicated times. Every legislative
session in recent memory has seen efforts to promote comprehensive
zoning reform, however, there is rarely consensus among the most highly
interested stakeholders. Neither, developers, builders, housing
advocates or municipalities appear able to agree on what is right, and
what is wrong with G.L. c. 40A.
Consequently, the more effective approach, and the one pursued by the
BBA in this instance, is to propose legislation that tackles the most
glaring ambiguities in the zoning statute, section by section. House
Bill 3611 amends G.L. c. 40A, § 7, which requires municipalities to
bring enforcement actions against non-compliant structures or uses no
later than ten years after the inception of such structure or use. The
problem with the old provision was that it was silent as to the legal
status of those structures which survived the applicable statute of
limitations. One would think that such structures would automatically
become pre-existing, non-conformities, subject to the grandfather rights
explicitly detailed in G.L. c. 40A, § 6. However, G.L. c. 40A, § 7
omitted any such explicit reference, and left non-compliant structures
that had survived the statutory limitations period in a kind of legal
limbo.
The issue came to the forefront recently, as several appeals court
panels issued inconsistent rulings regarding the status of such
surviving structures. The newly enacted legislation cures the section's
ambiguity by granting these structures recognized legal status as a
preexisting non-conformities protected under G.L. c. 40A, § 6. The
change will provide greater clarify to owners, buyers and lenders that
participate in transactions involving these types of property rights. To
read the BBA's press release regarding the recent enactment of H3611, click here.
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