ZBA meeting minutes 9-12-06
Present Dennis, Russ, Ingrid, Norm, and Tony. Attorney Ciota, Linda Leduc
6:30 PM – Attorney Ciota was present to discuss the topic of Common Ownership.
He stated that the MGL addresses these “grandfathered” provisions in Chapter 40A Section 6. Paragraph 1 deals with structures, paragraph 4 deals with vacant lots. There are two kinds of vacant lot situations, commonly owned or single ownership.
The Common Ownership law is to prevent landowners from trying to seek zoning relief after creating their own problem. Therefore, where land is available it must be merged to comply with zoning.
To determine whether a lot is held in common ownership or not, the deed must be researched to the point just before the zone change that the owner is seeking relief from.
If a lot is not held in common ownership and does not conform to current zoning (ie. width, yard depth, frontage), then it is exempt from the zoning requirements. Paragraph 4 of section 6 begins by addressing this exemption, as follows “Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage.”
If it is determined that a lot was commonly owned at the time of the zone change which resulted in its non-conformity, then according to the second portion of paragraph 4 of the Zoning Act, the new zoning requirements would not apply for five years, and is stated as follows: “Any increase in area, frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less
area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and seventy-six, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership. The provisions of this paragraph shall not be construed to prohibit a lot being built upon, if at the time of the building, building upon such lot is not prohibited by the zoning ordinances or by-laws in effect in a city or town.”
If the five-year window elapses then the lots need to be conjoined with the adjacent lot to create a conforming lot.
Adjoining lots are defined as those that are adjacent to each other and share a common lot line for a greater length than a single point (ie. diagonally).
The Zoning Board of Appeals role is to first determine the status of the vacant lot. If it is not held in common ownership it is exempt from the local zoning dimensional requirements and may be built on as long as it contains a minimum of fifty (50) feet of frontage and five thousand (5,000) square feet.
If the lot is held in common ownership and it is within the five-year window it may be built upon as long as it contains at least seven thousand five hundred square feet of area and seventy-five feet of frontage.
If the lot is found to be held in common ownership, and the five-year window has past then either a variance may be applied for through the Zoning Board of Appeals, or a building permit
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