State High Court Upholds Edgartown


In an Edgartown case which is esoteric but has application for small towns across the commonwealth, the Massachusetts Supreme Judicial Court has ruled that a house on an undersized lot cannot be expanded without a special permit - even if the expansion itself conforms to the requirements under zoning.

The decision upholds an earlier land court ruling that found Katama homeowners who wanted to double the size of their house on a substandard half-acre lot were required to obtain a special permit from the town zoning board of appeals. The homeowners had argued that because the new house met all setback requirements, they were entitled to a building permit.

The case dates back to 2001. The legal issue centers on whether the expansion increases the nonconforming nature of the property under Chapter 40A, the state zoning and enabling act.

The town of Edgartown, through its attorney Ronald H. Rappaport, argued that the expansion intensified the nonconforming use of the property and therefore required a special permit from the zoning board of appeals. The Thomas Bransford family, through its attorney Daniel C. Perry, argued that a clause in the state law should be interpreted to mean that the home expansion was allowed by right.

The Edgartown building inspector and later the town board of appeals denied the Bransford application to double the size of the house on a preexisting half-acre lot in a one-and-a-half-acre zone. The Bransfords appealed the decisions in two different cases to the Massachusetts Land Court. Last year the land court upheld the position of the town. The cases were appealed and consolidated and taken by the state supreme court for direct appellate review.

Announced in June and issued in written form early this month, the supreme court decision came down in a rare 3-3 tie vote, because one of the justices had recused herself from the review. The tie vote means the land court ruling is affirmed and the question of expanding homes on nonconforming lots is now a matter of law. Separate opinions were written by Justice John M. Greaney, who agreed with the land court along with chief Justice Margaret H. Marshall and Justice Francis X. Spina; and Justice Robert J. Cordy, who disagreed, along with Justices Roderick L. Ireland and Martha B. Sosman.

Both sides of the court used case law to support their opinions.

"While the issue here is novel, the appeals court has had considerable occasion to interpret the statute's ‘difficult and infelicitous‚ language,'" Justice Greaney wrote. He continued:

"Several land court decisions . . . have applied the framework and have concluded that reconstruction is not permissible of right where an otherwise conforming structure lies on a nonconforming (undersized) lot. The rule to date, therefore, is simple; where an undersized lot exists, the proposed reconstruction may be allowed without special permit only if the proposed new residence does not intensify existing nonconformities."

Quoting a 1940 case from the town of Needham, Justice Greaney wrote about the principles which form the bedrock of the zoning and enabling act: "[T]o lessen congestion in the streets, to conserve health, to secure safety from fire, flood and other dangers; to provide adequate light and air; to prevent overcrowding of land; to avoid undue concentration of population; to encourage housing for persons of all income levels; . . . to conserve the value of land and buildings."

He also took note of the landmark 1997 three-acre zoning case in the town of Edgartown: "As noted in Johnson v. Edgartown . . . There are regional and statewide interests in the preservation of the unique quality of Martha's Vineyard. Those interests justify the making of conservative assumptions about the consequences of land uses."

Writing for the dissenting three justices, Justice Cordy offered a different interpretation of the statute.

"So the issue we must decide is whether the increase in the size or footprint of a single or two-family home, as a matter of law, intensifies the nature of its nonconformity when its only nonconformity is, and will continue to be, the size of its lot. I conclude that it does not," he wrote.

"The need to secure findings or special permits through lengthy, costly and discretionary local zoning processes for any improvement that might increase the living space or square footage of a home may put such improvements out of reach for many homeowners," he concluded.

The case has attracted some attention in the academic world; earlier this year Mr. Rappaport was among a group invited to speak about the case to a class at the Urban Policy Institute for the Massachusetts Institute of Technology.

He said this week that the outcome of the case is important for the Vineyard and beyond.

"What the land court decision held - and the SJC has now affirmed that decision - is that doubling the size of a house on a lot too small for zoning purposes requires review by the zoning board of appeals," Mr. Rappaport said. He continued:

"In effect this means that all zoning is local - just like all politics is local - and review by a zoning board of appeals, which is five members of this community, is required before a larger home may be built in an area where it may not be suited for it. It simply means review - not a prohibition."

Eric Wodlinger, a partner at Choate, Hall & Stewart in Boston who has a long background in land use law and who represents the Martha's Vineyard Commission, agreed.

"This is an area where there has been a certain amount of confusion over the years . . . . it's sort of angels on the head of a pin, is what the court is telling us," Mr. Wodlinger said. "But the fact is when you have this sort of situation the town should have a say. When you have a nonconforming lot and someone is proposing to build not what existed there before, but something that could change the appearance and feel of the neighborhood, then the town should have some voice in it. And who can issue a special permit - it's those people appointed by the town who look at this sort of thing. It's a judgment call that's best made at the municipal level."

Daniel Perry, a partner with the New Bedford firm of Perry, Hicks, Crotty & Deshales who represented the Bransfords and is also the town counsel for Gosnold and Rochester, agreed that the decision is important for small towns.

"There are probably several hundred thousand of these [substandard] lots in the commonwealth. It's been 30 years since the [zoning and enabling] legislation was written and there has never been a case that clearly addressed it," he said.

But with a 3-3 split on the state's highest court, Mr. Perry said the outcome is still at best unclear.

"In this particular case it is upheld, but this issue is up for grabs in any court and is clearly undecided. And it should come up again, because it's too important," he said.

Mr. Perry complimented Mr. Rappaport for his work on the case.

"Ron did a very good job, and frankly I think both [supreme court] opinions are very good," he concluded.