Phillips & Angley

Buying property with variance or nonconforming use

If you are looking to move your business to a new property, you may have limited choices in your Massachusetts town. In addition to finding a place that suits the purposes of your business, you will have to consider the zoning regulations for the properties on your list. Zoning places restrictions on the way you can use properties in certain areas.

When you find a building that is ideal for your business, you will want to carefully investigate the zoning guidelines. Understanding the regulations related to zoning is important, especially when it comes to terms such as variance or nonconformance. Will you need a variance for your new business, or is the property already nonconforming with current zoning laws?

Seeking a variance

When you find a property or building where you want to establish your business, it must be zoned appropriately. For example, if the structure you plan to build on your property is larger than zoning permits on the size of property in question, you may think you will have to look elsewhere for your business, but this is not necessarily so.

In some cases, the zoning board may grant a variance. By describing how the current zoning would deprive you of a valid use of your land, you can apply for a unique exception to current zoning laws. Your plans for the property must not interfere with the overall character of the area or oppose the reasons for the zoning code.

A nonconforming property

On the other hand, you may be interested in purchasing a property that is already out of line with the current zoning laws. This may be because the zoning changed at some point after the structure or business existed. For example, a business owner may have established the business in an area that eventually rezoned to residential. The owner may continue to operate the business with the understanding that, at some point, the property will conform to the residential zoning.

When a property is grandfathered in a zone, it is possible that the zoning exception will expire if you purchase the property. You may petition to obtain an extension of the nonconforming use, but if fire or other factors should destroy the building, you may not be able to obtain permission to rebuild. Destruction of the structure may terminate the exception to the zoning law.

Understanding the zoning regulations that govern a property or building you are interested in purchasing is essential if you are going to maximize the use of the property. If you seek to purchase real estate, you would be wise to consult with an attorney who is well familiar with zoning laws, variances and nonconformity in Massachusetts.

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