DocketNumber: No. 12-P-215
Citation Numbers: 82 Mass. App. Ct. 914
Filed Date: 11/28/2012
Status: Precedential
Modified Date: 6/25/2022
In 1974, the plaintiff’s brother and sister-in-law conveyed a parcel of land to him (lot), by dividing it from a larger tract.
As the plaintiff acknowledges in his brief, expiration of the limitations period of G. L. c. 40A, § 7, does not remove the illegality of an unlawful structure; it simply protects it from enforcement action. See Cumberland Farms, Inc. v. Zoning Bd. of Appeals of Walpole, 61 Mass. App. Ct. 124, 127 n.9 (2004). “For purposes of deciding whether a use is nonconforming within the meaning of G. L. c. 40A, § 6, the question is not merely whether the use is lawful but how and when it became lawful.” Mendes v. Board of Appeals of Barnstable, 28 Mass. App. Ct. 527, 531 (1990). Just as in Mendes, supra, where we observed that “[i]t would be anomalous if a variance . . . functioned as a launching pad for expansion as a nonconforming use,” in the present case it would be anomalous indeed if an unremedied violation, protected from
Judgment affirmed.
The deed recites consideration of $3,000.
We consider the first premise highly dubious, however. The provisions of G. L. c. 40A, § 7, as amended through St. 1989, c. 341, § 21, do not apply to unimproved property, instead simply barring action “to compel the removal, alteration, or relocation of any structure by reason of any alleged violation of [applicable zoning regulations].” Moreover, if availability of an enforcement action against a structure placed in violation of applicable zoning regulations by an unlawful severance of adjacent property were considered wholly adequate as a response to the unlawful severance, there would be no purpose or benefit in the doctrine of infectious invalidity.