To see if the Town will vote to amend the Zoning Bylaw to update Section 8.1.3 Nonconforming Single-Family or Two-Family Dwellings to modify or remove Section 8.1.3 C; or take any action related thereto.

(Inserted at the request of the Redevelopment Board)

Arlington has a considerable number of nonconforming single- and two-family homes, which is similar to most communities in Massachusetts where zoning was codified after the development of residential neighborhoods. Nonconformities may continue to exist because the zoning bylaw does not require changes to pre-existing conditions with regard to the lot size, frontage, setbacks, and other dimensional characteristics of existing neighborhoods.

To address this, Massachusetts General Law (M.G.L.) Chapter 40A § 6 lays out a “second except” clause. The second except clause provides single- and two-family homes with additional rights relative to existing prior nonconformities—e.g., nonconformities on older properties that resulted from zoning codification—than these same homes would have for a new nonconformity. Prior non-conformance rights of such structures and uses are allowed to continue as they are within certain qualifications under state law. Chapter 40A and the Arlington Zoning Bylaw (Section 8.1.3(B) also set forth the criteria for expanding or intensifying those non-conformities. However, Section 8.1.3(C) limits the prior non-conformance rights in certain kinds of projects and as such conflicts with state law in the specific scenario where a single- or two-family home seeks to extend an exterior wall further than the furthest non-conforming point of the same exterior. 

The Massachusetts Supreme Judicial Court’s decision on the 2019 case, Bellalta v. Zoning Bd. of Appeals Brookline,[1] confirmed the conflict between M.G.L. Chapter 40A § 6’s second except clause and Section 8.1.3(C) of the Town’s Zoning Bylaw. The Court noted that a variance is not required for expansions of existing prior nonconformities, and if a prior nonconformity is not being intensified, then a building permit should be issued as of right. The second except clause is specific to single- and two-family homes. Further, the special rights only relate to existing non-conformities. If a new non-conformity is created, a variance is required.

To reconcile the conflict, it is the recommendation of the Zoning Board of Appeals, Director of Inspectional Services, and Town Counsel that Section 8.1.3(C) be stricken from the Bylaw. The ARB concurred noting that Section 8.1.3(C) is surplus content and does not lead to clarity in the Zoning Bylaw and conflicts with property rights as allowed under state law.

ARB Vote and Recommendation to Town Meeting: The Redevelopment Board voted (5-0-0) to recommend Favorable Action on Article 4 that the Zoning Bylaw be and hereby is amended as follows:

Amend Section 8.1.3(C):                                                                               

8.1.3         Nonconforming Single-Family or Two-Family Dwellings

A.         Alteration, reconstruction, extension, or structural change to a single or two-family residential structure that is completely within the existing foundation walls does not increase the nonconforming nature of said structure.

B.            No alteration, reconstruction, extension, or structural change to a single or two-family residential structure that increases the nonconforming nature of said structure shall be permitted unless there is a finding by the Board of Appeals that the proposed alteration, reconstruction, extension, or structural change will not be substantially more detrimental to the neighborhood.

C.            The extension of an exterior wall of a single-family or two-family residential structure along a line at the same nonconforming distance within a required setback may be allowed providing that the extension creates no new nonconformities, nor increases any open space nonconformities, and that no such extension shall be permitted unless there is a finding by the Special Permit Granting Authority that the extension shall not be substantially more detrimental to the neighborhood than the existing nonconforming dwelling. In making such a finding, the Special Permit Granting Authority shall assess the dimensions and proposed setback of the alteration in relationship to abutting structures and uses.

D.C.        Any lot lawfully laid out by plan or deed duly recorded which complies (at the time of recording) with the minimum area, frontage, width, and depth requirements, if any, of the zoning bylaw then in effect, may be built upon for residential use provided it has a minimum area of 5,000 square feet, with a minimum front footage of 50 feet, and is otherwise in accordance with the provisions of G.L. c. 40A, § 6.

E.D.        The creation or addition of an accessory dwelling unit within an existing single-family dwelling, two-family dwelling, or duplex dwelling, or within an existing accessory building on the same lot as any such dwelling, does not increase or affect the nonconforming nature of said existing dwelling or accessory building, and shall not cause such dwelling or accessory building to become non-conforming or result in any additional dimensional requirements with respect to such dwelling or accessory building, provided that such creation or addition of an accessory dwelling unit neither expands the footprint nor the height of said dwelling or accessory building, in each case except (i) for changes necessary to provide for required egress or other modification to meet the State Building Code and State Fire Code, (ii) for any projects allowed under Section 5.3.9, and (iii) to the extent authorized by a special permit issued pursuant to clause (iii) of Section 5.9.2.B(1), fifth bullet.

ARB Report to Special Town Meeting

video presentation by ARB