Land Council Attorney On Article 62
Dennis Murphy •
To the editor: I am a land use and municipal attorney representing the Nantucket Land Council, and I write to clarify an important legal issue on Article 62 for Nantucket Town Meeting. The warrant published for the 2023 Annual Town Meeting contains a Planning Board comment under Article 62 that states, “The article as proposed is in direct conflict with the Subdivision Control Law”. That is not accurate. The opposite is true. The Town has every right to adopt Article 62 because the Subdivision Control Law and local zoning are independent. In fact, Nantucket’s zoning bylaw as it is currently written is inconsistent with the Supreme Judicial Court’s (SJC) interpretation of the Subdivision Control Law.
The SJC said this explicitly in a case from 2015. In Palitz v. ZBA of Tisbury, 470 Mass. 795 (2015), the SJC addressed this exact issue when it ruled that lots created under section 81L of the Massachusetts Subdivision Control Law are not entitled to preexisting nonconforming protection. The clear language of the Palitz decision in 2015 conflicts with the 2012 version of the bylaw that grants such rights. As it stands today, section 33 (A)(3) is in conflict with the Subdivision Control Law as interpreted by the SJC in Palitz. Article 62 not only corrects this, but also eliminates a number of negative implications from the current bylaw language (including lack of notice and oversight and the counterproductive creation of new nonconformities which goes against good planning practices and the intent of zoning).
The proposed change in the bylaw (Article 62) would eliminate the automatic vesting of preexisting, nonconforming zoning rights for lots created by the existing structures exemption under the Subdivision Control Law (G.L. c. 41, s. 81L). Under the section 81L exemption, a lot may be created without subdivision approval if it has a structure on it that predates the adoption of zoning in 1955. The language added in 2012 to the bylaw that Article 62 proposes to strike (quoted below) would fix the bylaw to conform to the Palitz decision .
Lots created pursuant to MGL c. 41, s. 81P, based upon the exception in the clause of MGL c. 41, s. 81L for lots containing two of more structures that predate the adoption of subdivision control in the Town, shall have the same status as preexisting, nonconforming lots, and any structures theron, which predate the adoption of subdivision control in the Town, shall have the status of preexisting nonconforming structures. Section 33 (A)(3)
Article 62 does not create any conflict with state law. To the contrary, it eliminates the inconsistency with the Subdivision Control law highlighted by the SJC in Palitz, as well as the negative implications listed above.
Dennis Murphy, Esq.