EagleTribune.com, North Andover, MA

January 28, 2013

Struggle ensues over illegal multi-unit homes

By Angeljean Chiaramida

---- — SALISBURY — “Buyer beware” would be a good policy to follow for prospective buyers wanting to purchase a multi-family homes in town.

The reason for caution when shopping for a duplex or triplex or whatever-plex in Salisbury is that there just aren’t that many areas in town where multi-family homes are allowed by zoning. Aside from specific overlay districts, multi-family dwellings are legally allowed in the Beach Commercial District, according to Town Manager Neil Harrington.

But the situation is much more complex than that. Some multi-family homes located in zones that don’t allow them are legal, and some are not. Residences containing more than one dwelling that existed before Salisbury passed its zoning in 1978 remained legal because they were “grandfathered.” But those that were built after 1978 are not.

Grandfathering is the reason many multi-family homes exist at the Beach, Harrington said, but some there could be illegal, and they’re turning up during inspections.

And sometimes dwellings in the overlay districts where they are allowed can be illegal because they don’t meet the minimum lot size and frontage requirements for multi-family homes.

More misleading still for some who buy multi-family homes without checking the zoning realities is that even if a home has been assessed and taxed as a multi-family for years, that doesn’t make it a legal multi-family. According to Salisbury chief assessor Cheryl Gorniewicz, assessing a building as a two-family home doesn’t reflect the legal use of the property, but only how the property exists.

Assessors don’t decide if an apartment is legal or illegal, Harrington said. It is the building inspector, who is the zoning enforcement officer in Salisbury, who makes that determination based on zoning requirements and when a property first became a multi-family home. But, unfortunately, more than one property owner in town learned the technicalities of Salisbury multi-family homes too late, after the purchase.

Longterm problem

According to Harrington, this problem has haunted officials for years due to oversights by former code enforcement officers, as well as former owners ignoring zoning rules and secretly added apartments to single-family dwellings.

Harrington said in the past, property owners would take out building permits to expand their homes with additional space and another bathroom, all of which are legal. However, it is the inclusion of a stove for the kitchen that turns expanded space into another dwelling, he said.

But sometimes, after the town’s final inspection approves the new addition, owners sneak in a stove, turning the space into an apartment. The town can find the problem — sometimes years down the road — in any number of ways, Harrington said. Town assessors can find apartments when doing inspections for tax valuations or neighbors often complain about them to town officials.

When assessors make the discovery, they refer the problem to building inspectors, but also change the use valuation, upgrading it to a multi-family and assessing the value accordingly, he said. That still doesn’t make the apartment legal, he said, and the town has a court ruling to back that up.

And although in the past some inspectors may have turned a blind eye to illegal multi-family homes, that’s not true today, Harrington said. The town is enforcing its zoning these days, he said, much to the dismay of many who now cry foul.

That’s the situation for Neil Gaudet, who purchased what he believed to be a two-family home at 28 Mudnock Road in March 2010. Gaudet said he planned to live in one unit and rent the other, assuming the property was legal since it had been taxed as a two-family for years. But after beginning work to upgrade the property, he learned from building inspector David Lovering it wasn’t.

Since then, Gaudet’s fought the town’s order to convert the building back to a single-family home, losing one court case already in Newburyport Superior Court.

“Mr. Gaudet tried to use the assessors’ property records for his property in his defense, but was denied by the judge,” Harrington said.

According to the August 2011 ruling handed down by Newburyport Superior Court Justice Richard E. Welch III, Gaudet was ordered to bring his property “into compliance with the Zoning Bylaws by immediately ceasing all use of the building thereon as a two-family dwelling and restoring it to single-family residential use ... .”

He was ordered to evict anyone living in the the second dwelling, allow town inspections on 24-hour notice to ensure compliance, provide the court with progress reports, cease any use of the property not permitted by town zoning and reimburse the town for attorney’s fees and costs it expended in the case.

Harrington said Gaudet hasn’t yet been paid the town’s legal expenses, which amount to about $10,000. And according to Lovering’s knowledge, no action has been taken to comply with any of the other aspects of Welch’s ruling, since Gaudet has appealed the case, taking it to Lawrence Housing Court.

Gaudet also believes since other multi-families in his area were grandfathered, his property should be as well. But the notion of the 28 Mudnock Road property being grandfathered doesn’t fly, Harrington said, for it was illegally converted about a decade after zoning was passed in 1978.

Harrington said neighbors complained for years about the non-conforming use of the structure, but code enforcement officers during that period didn’t follow up.

“But that doesn’t happen any more,” Harrington said. “Today, our building inspector enforces the town’s zoning.”

When the bank foreclosed and took the property a few years back, an abutter alerted Lovering, Harrington said. To try to avoid the very problem Gaudet is facing now, Lovering wrote to the mortgage holder, DLJ Mortgage Capital of Salt Lake City, Utah, to let the company know that the 28 Mudnock Road “may contain an illegal dwelling unit.”

Now before Lawrence Housing Court, the judge told Gaudet to go before Salisbury’s Zoning Board of Appeals to seek a “use variance,” which might bring the building into compliance with zoning, Harrington said. But, again, Gaudet did not prevail.

“The town’s zoning bylaw does not allow ‘use variances,’” Harrington said. “One cannot convert an illegal multi-family dwelling into a legal one via the ZBA.”

Gaudet said his lawyer believes the house should be allowed to remain a two-family because it’s in the Outer Village Residential Overlay District, which allows two-family homes in certain parts of the R-2 zone, where the house is located.

Yet according to Lovering, the lot size doesn’t meet the requirements that would allow it to be a two-family.

After losing at the Zoning Board of Appeals, Lovering said, Gaudet’s case is still awaiting a ruling from the judge in Lawrence Housing Court.