Land Use and Title: A Nonconforming Lot, a Third Unit, and a 25-Year-Old Fence

The lot itself is probably fine

• A lot recorded on a 1927 plan, in separate ownership, is likely protected as a pre-existing nonconforming lot under the Zoning Act, so the 9,600 square feet and 62 feet of frontage do not by themselves block a building permit.

The third unit is the problem

• The statute allows a pre-existing nonconforming single- or two-family structure to be altered or extended as of right only if the work does not increase the nonconforming nature of the structure. Adding a third dwelling unit increases the intensity of the nonconformity, so it is not as of right.
• The owner needs either a special permit (if the bylaw authorizes an increase in dwelling units in a nonconforming structure) or a use variance.

The variance standard is hard

• A variance requires hardship tied to soil conditions, shape, or topography peculiar to the lot and not to the neighborhood generally; the hardship cannot be self-created; and the relief must be grantable without substantial detriment to the public good and without nullifying the zoning plan. Four of five board members must vote in favor.
• Wanting a third unit, or the extra income it produces, is a self-created economic hardship. That generally defeats a use variance. Since 2016 a special permit requires only a simple majority, so the bylaw language controls the outcome.

Dimensional variance

• A setback variance is a dimensional variance and is easier to obtain than a use variance, but the applicant still must prove the hardship arises from the lot's shape or topography, is not self-created, and that the relief is no greater than necessary.
• A 62-foot-wide lot with an existing house and a garage proposed 3 feet from the line is the kind of constraint that can support relief, but the plan must show the garage was located to minimize the intrusion. Putting it at 3 feet when 5 feet was workable makes the hardship look self-created.

Timing and appeals

• The building inspector acts first; a refusal or a permit with conditions can be appealed to the zoning board of appeals within 30 days.
• A variance or special permit decision can be appealed to the Land Court or Superior Court within 20 days of the decision being filed with the town clerk, and only by a party who participated in the board proceedings.
• A buyer should not waive the zoning contingency until the decision is filed and the 20-day appeal period has run. Buying during the appeal window means buying a lawsuit.

What the neighbor may have acquired

• Adverse possession of the strip requires 20 years of actual, open, notorious, exclusive, continuous, and non-permissive use. A fence in place since 1999 gives more than 25 years, so the neighbor has a colorable claim to the strip.
• Prescriptive easement uses the same 20-year, open-and-notorious, non-permissive test. The driveway crossing the rear corner is a classic prescriptive-easement claim even if the fence claim fails.
• If any of the land is registered (Land Court) land, the analysis changes and the period may not run the same way; check the certificate of title first.

What to do before closing

• Get an ALTA survey and have counsel map the exact encroachment, then either negotiate a boundary line agreement and quitclaim deed, or a written easement/encroachment agreement acceptable to the title underwriter.
• A seller's affidavit about the fence does not cure the problem. If the parties cannot agree, expect a title exception, and the lender may refuse to close on a policy with that exception.
• Advise the buyer in writing of the risk and the cost of a quiet title action before the P&S is signed, not after.