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Town of Dennis Defends Bylaw Interpretation in Appeals Court Over ‘Matured Rights’
Summary
The Appeals Court heard competing interpretations of a 1973 Dennis zoning bylaw grandfathering clause: whether a vacant undersized lot acquired before the amendment retains an everlasting right to build or whether a building permit or use must have been realized to preserve preexisting rights.
The Appeals Court considered whether a 50-year-old Dennis zoning bylaw provision preserves a preexisting right to develop an undersized lot that the town says is now nonconforming.
Tim Burke, representing a trust that owns the lot, argued the bylaw’s grandfathering provision — which says revisions “shall not affect such rights or duties that have matured” — preserves rights that existed on the effective date and that extrinsic evidence from the period supports the trust’s position. Burke told the court the municipal record-keeping is incomplete, that discovery limitations prevented direct documentary proof of a 1973 building permit, and that extrinsic evidence and contemporaneous practice showed the town treated similar properties as buildable.
Robin Stein, counsel for the Town of Dennis, urged the court to read the bylaw and General Laws c. 40A, § 6 together: a legally existing nonconforming status requires an issued building permit, an established use, or other statutorily specified conditions. She said the lot was held in common ownership and merged with abutting land and therefore does not qualify for protection as a legally existing nonconforming lot; the town’s practice of hearing many dimensional-variance petitions after the 1973 amendment, she said, supports that the amendment rendered undersized lots nonbuildable absent a permit or existing use.
Justices asked whether the bylaw language is ambiguous and whether the word “matured” should be read to mean “used” or otherwise limited. Burke urged looking to extrinsic evidence and historical practice; Stein said the bylaw is not ambiguous and that the governing statutes and the land court record support the town’s interpretation that the parcel is not buildable as of right. Counsel also debated whether discovery limitations materially affected the trust’s ability to produce contemporaneous permit records.
The court took the case under submission after argument on the statutory framework for grandfathering and the proper scope of extrinsic evidence.
