Massachusetts Zoning: The 6 and 10 Year Clocks

An addition with no permit behind it is something I watch buyers discover late in an older Massachusetts house. The zoning statute handles it mostly through periods of time, plus a recording requirement that rarely comes up outside a lawyer’s office. One scope note before anything else: c. 40A is the state Zoning Act and it does not govern zoning in the City of Boston, which runs on Chapter 665 of the Acts of 1956. Everything below is the rule in the cities and towns around Boston.

Who enforces zoning

Under M.G.L. c. 40A, § 7, the inspector of buildings, building commissioner or local inspector is charged with enforcing the zoning ordinance or by-law. In a town with none of those, it falls to the board of selectmen or whoever the local by-law designates. That officer must withhold a permit for construction, alteration or moving of a building that would violate zoning, and no permit or license may be granted for a new use that would violate it.

Asking the officer to act

Anyone can request enforcement in writing. If the officer or board declines to act, the statute requires written notice to the party who asked, stating any action or refusal and the reasons for it, within fourteen days of receiving the request. You need that written answer before you can appeal.

The penalty cap

No local zoning by-law or ordinance may assess a penalty of more than $300 per violation. The same sentence preserves the ability of a local by-law to provide that each day the violation continues is a separate offense, so the cap sets what a single violation costs, and a long-running one can still add up.

The six year clock

Where real property has been improved and used in accordance with the terms of the original building permit, no criminal or civil action to compel abandonment, limitation or modification of the permitted use, or removal, alteration or relocation of a structure erected in reliance on the permit, may be maintained unless the action is commenced and notice of it recorded within 6 years of the commencement of the alleged violation. The phrase doing the work is “in accordance with the terms of the original building permit.” Work that went beyond what the permit described is not sitting inside this clock.

The ten year clock

For an action intended to compel the removal, alteration or relocation of a structure because of an alleged zoning violation, including a violation of the conditions of a variance or special permit, the period is 10 years from the commencement of the alleged violation, again measured by when the action is commenced and notice recorded.

When a structure becomes legally non-conforming

This is the paragraph I get asked about most. If real property has been improved by the erection or alteration of one or more structures, the structures or alterations have been in existence for at least 10 years, and no notice of an action as to an alleged violation has been recorded in the registry of deeds, or filed in the registry district for registered land, within 10 years from the date the structures were erected, then the structures are deemed for zoning purposes to be legally non-conforming structures, subject to the statute’s non-conforming provisions and to any local by-law on non-conforming structures.

Recording is the step that counts

Every one of these clocks turns on a recording at the registry; a letter or a phone call does nothing to it. The action has to be commenced and notice of it recorded in the registry of deeds for each county or district where the land lies. The notice must include the name of at least one owner of record, the name of the person initiating the action, and adequate identification of the structure and the alleged violation. The superior court and the land court have jurisdiction to enforce the chapter and may restrain violations by injunction.

Appeals have their own windows

An appeal to the permit granting authority is available to a person aggrieved by an inability to obtain a permit or an enforcement action, and to abutting municipalities and regional planning agencies among others. From there, an appeal of a board of appeals or special permit granting authority decision goes to the land court or superior court by bringing an action within twenty days after the decision is filed in the office of the city or town clerk, with notice and a copy of the complaint received by that clerk inside the same twenty days. Where the appeal goes to a district court division, a party may claim trial in the superior court within twenty-five days after service is completed.

What I do with this before an offer

I pull the permit history for the address and compare it against what’s physically there, then check the registry for any recorded notice of an action. A title examination will surface a recorded notice. It will not tell you whether the sunroom was permitted. Those are two different searches, and the second one is on you and your attorney to ask for. A couple of limits on all of this. § 7 reaches violations of c. 40A and of ordinances and by-laws adopted under it, and a structure deemed legally non-conforming is deemed so for zoning purposes. Whether the work met the building code is a separate question with its own answer. None of this is legal advice, and where a real question comes up, a Massachusetts real estate attorney should answer it before your contingency dates run.

Writing an offer on an older house

If you’re looking at a Greater Boston house with work that doesn’t appear in the permit file, send me the address and I’ll pull what the city or town has on it before your inspection date. Diana Kim, REALTOR®, eXp Realty.