SJC Victory for Town of Tisbury in “Existing Structure” Appeal

Attorneys Jonathan Silverstein and Katherine Laughman have secured a significant zoning decision on behalf of the Town of Tisbury and also of great significance to other Massachusetts communities. The Supreme Judicial Court, the Commonwealth’s highest appellate court, issued a decision in Palitz v. Zoning Board of Appeals of Tisbury (2015), in which it accepted this firm’s argument that lots created by a provision of the Subdivision Control Law that allows division of certain tracts of land containing multiple buildings into separate lots, each having one of the “existing” buildings, does not carry with it any favorable zoning status to the lot created or to the “existing structure.”

That is, neither the lot nor the building thereon acquires “pre-existing nonconforming” status pursuant to G. L. c. 40A, the Zoning Act. A puzzling provision of the Subdivision Control Law allows division of a lot containing multiple buildings that were in existence on the date the Subdivision Control Law first came into effect in the community in which the land is located into two or more lots, each containing one such structure. Some, including the plaintiff in this litigation, have contended that the division of the land in this fashion creates lots which enjoy protected “pre-existing nonconforming” status under the Zoning Act. The Court in the Palitz decision resolved the debate on this topic, by holding that although an ANR lot may be lawfully created under the Subdivision Control Law, the zoning status of such a lot is entirely distinct from its status under the Subdivision Division Control Law. The result of the Palitz decision is that creation of a recordable lot by division of a tract containing multiple buildings does not carry with it pre-existing nonconforming status for the new lot or the structure it contains. For the text of the decision click HERE.