Creating Thriving Communities Through Land Use And Real Estate Law

Constructive Notice and Grandfather Protection in Leominster

Constructive notice and grandfather protection – all in a day’s work for the Land Court, which analyzed the application of both Zoning Act and the local zoning bylaw to a proposed home on a Leominster lot.  In Niall v. Guaranteed Builders & Developers, et al. (Mass. Land Ct. 2015), the Leominster Building Commissioner sought a determination that a lot owned by Guaranteed Builders & Developers was not buildable because it did not meet the area and frontage requirements of the zoning bylaw, was not entitled to grandfather protection from those same requirements, and that a notice of constructive approval filed by Guaranteed Builders & Developers was void.

The vacant lot in question, known as Lot 2, admittedly does not meet the area and frontage requirements of the current zoning bylaw, although it met the requirements of the previous zoning bylaw prior to a 2001 change.  The adjacent lot, Lot 1, has at all relevant times had a house and garage on it, but was held in common ownership with Lot 2 just before the 2001 change.  Guaranteed Builders & Developers requested a building permit for a single-family home on Lot 2, and the Plaintiff Building Commissioner denied the application based on the lack of area and frontage.  Guaranteed Builders & Developers appealed the denial on April 14, 2014, but the Zoning Board did not open the public hearing until June 18, 2014, and continued the hearing twice, to July 16, 2014 and August 27, 2014.  On July 22, 2014, 99 days after the filing of its notice of appeal, Guaranteed Builders & Developers filed a Notice of Constructive Approval, claiming that their request was approved because the Zoning Board failed to act on their application in a timely manner.  The Building Commissioner subsequently filed this action.

In a summary judgment decision, the Land Court judge opted to deal with the constructive approval issue first because that determination would affect the rest of the analysis.  Relying heavily on appellate cases that require strict compliance with statutory timelines, the Court concluded that Guaranteed Builders & Developers’ Notice of Constructive Approval was void for failure to file after the expiration of the allotted 100-day period for the Zoning Board to make a decision.  Although the Zoning Board in fact did not issue a decision during the 100-day period, Guaranteed Builders & Developers was not allowed to jump the gun.  While Guaranteed Builders & Developers argued that their early filing did not prejudice anyone, the Court concluded otherwise, reasoning that third parties were prejudiced by the early filing, as it could engender potential confusion regarding the proper deadline to file an appeal.  The Court concluded that strict compliance with the statutory time periods “avoids causing uncertainty about when a potential challenger may initiate an appeal and prevents the beneficiary of the grant from controlling the appeal period by the timing of his notice.”

Having disposed of that issue, the Court considered the question of whether Lot 2 was entitled to grandfather protection under either G.L. c. 40A, § 6 or the local zoning bylaw.  The Court concluded that Lot 2 was not subject to G.L. c. 40A, § 6 protection because it was held in common ownership at the time of the changes to the zoning ordinance.  However, the Leominster ordinance extended greater protection than state law, allowing for development of a non-conforming lot so long as the lot was valid at the time it was created and was not held in common ownership with an adjacent vacant lot at the time the zoning requirements changed.  Lot 1 was not vacant at the time the zoning requirements changed.  Therefore, under the City zoning ordinance, Lot 2 was entitled to grandfather protection, and therefore to the requested building permit.

Having determined that Guaranteed Builders & Developers is entitled to build on Lot 2, the Court only briefly addressed other issues raised by Guaranteed Builders & Developers: Guaranteed Builders & Developers was not entitled to a variance; and the Court didn’t need to address an estoppel argument as the underlying issue was resolved.

This case presents a somewhat-rare situation where a local zoning bylaw provides greater protection for nonconforming lots than G.L. c. 40A, § 6.  Despite the Building Commissioner’s argument to the contrary, where the bylaw expresses clear intent to expand the protections provided by state law, development is permitted that would not otherwise be allowed.  The decision also affirms that the deadlines set out on the Zoning Act are mandatory, not simply suggestions.  Imposing mandatory deadlines makes it easier for applicants, municipalities, and those who wish to appeal a decision to know precisely what is required to successfully move through the zoning and permitting process procedures.