We received an interesting opinion from Town Counsel regarding abandoned residential sites and the Dennis Zoning By-law. This opinion will be the subject of a discussion at the beginning of the Planning Board Meeting on Monday March 5, 2012.
Last month, at a Joint Meeting of the Planning Board and Zoning By-law Study Committee, the issue of non-conforming lots which had a house located on it when zoning changed, but the house has been demolished for a significant number of years, was discussed. Generally, under the Dial Away decision the SJC has determined that the zoning act provides protections for lots which were vacant and never used at the time they became non-conforming. BUT, these same protections are not provided to lots which were physically occupied when they became non-conforming and later vacated. The two committees asked Town Counsel how the Dial Away decision interacted with the Dennis Zoning By-law.
Counsel’s response was much as was anticipated, that the Dial Away decision clearly applied to Dennis. However, Counsel noted that Dennis had a very special provision in its zoning which provided a level of protection not contemplated in the Dial Away decision.
When we re-wrote Section 126.96.36.199 in 2003 we added a series of items within which the Building Commissioner to issue a permit on a non-conforming lot. It is Counsel’s read of our by-law that Section 188.8.131.52 A.5 would allow a home to be reconstructed on a non-conforming lot regardless of how many years has passed since the house was voluntarily removed. This section reads:
184.108.40.206.A.5 The voluntary demolition and reconstruction of a single or two-family residential structure that is reconstructed within the same footprint, building height, and the same volume or less as the building voluntarily demolished.
Counsel points out that a 2009 court case would place the provisions in 220.127.116.11 A.5 as taking priority over the more general provisions on abandonment found in Section 18.104.22.168. However, the protection is very limiting. The house on such a lot would need to constructed essentially to match the house that was demolished, and would not enjoy “lawfully pre-existing non-conforming status” for future changes.
In conclusion, taking this to the lot that originally spurred this inquiry, the house that was ordered demolished nearly two decades ago can be rebuilt in-kind, or a smaller house within the envelope of the original may be constructed. However, as the new house would not have been the one that was on the site at the time of the re-zoning, it could not be enlarged without variance relief. The property owner will need to document the size of the original house in a manner acceptable to the Building Commissioner in order to be issued a building permit.