Home Improvement

Planning A Major Home Renovation Project? You May Need A Special Permit For That!

by Rich Vetstein on January 17, 2011 · 1 comment

in Construction Law,Home Improvement,Massachusetts Real Estate Law,Real Estate Litigation,Zoning

Massachusetts special permit zoning attorney

A new Harvard report predicts a big jump in home remodeling – and with markets like Greater Boston that have lots of older homes leading the way. With the real estate market in recovery mode, a lot of folks in the last few years have put their money towards additions, in-law suites, finished basements, expanded garages, tear-downs, and other major home remodeling projects. In some cases, however, these projects require a special permit from the local zoning code. Here are some frequently asked questions about special permits under the Massachusetts Zoning Law. (I will cover variances for the next post).

Why Do I Need A Special Permit?

The most common reason why a Special Permit is necessary is that the proposed dwelling or the new addition does not meet the setback requirements set forth in the local zoning bylaw. Setbacks are buffer zones surrounding your boundary lines which provide for a “no-build zone.” For example, in the Sudbury, Mass. zoning code for the basic residential district, the side yard setback is 20 feet, the rear yard setback is 30 feet, the front yard set back is 40 feet, and the maximum structure height is 2.5 stories, or 35 feet. So if your proposed in-law suite juts into the side yard setback of 20 feet, then you will need to obtain a special permit from the zoning board of appeals (ZBA).

The other reason you may need a special permit is if your property is “non-conforming” and you wish to make a major expansion or alteration to it. “Non-conforming” means that the zoning code has changed since your home was originally built. For example, in Sudbury, the basic residence zoning district is now a minimum of nearly 1 acre. Many Sudbury homes built in the 60′s are way under 1 acre, so they are “non-conforming.” Virtually any tear-down and major reconstruction or alteration of a non-conforming property will trigger review by the building inspector and the application for a special permit from the local zoning board.

What Do I Need To Do To Get A Special Permit?

Obtaining a special permit requires a formal application to the zoning board with your plan, notice to your abutters, and the presentation of your application in front of the board at the public hearing. It is a formal legal proceeding, and can be complex giving the nature of the zoning issues and the extent of any neighborhood opposition. The chances of success rise dramatically if you have an experienced Massachusetts zoning attorney handling the zoning application. I was an associate member on the Sudbury zoning board for 9 years, and have appeared before countless boards in other towns.

What Are The Legal Requirements For A Special Permit?

The specific requirements for a special permit differ from town to town. But they all have the same general theme. Here is the Sudbury Mass. standard:

That the use is in harmony with the general purpose and intent of the bylaw;
That the use is in an appropriate location and is not detrimental to the neighborhood and does not significantly alter the character of the zoning district;
Adequate and appropriate facilities will be provided for the proper operation of the proposed use;
That the proposed use would not be detrimental or offensive to the adjoining zoning districts and neighboring properties due to the effects of lighting, odors, smoke, noise, sewage, refuse materials or other visual nuisances;
That the proposed use would not cause undue traffic congestion in the immediate area.

What Happens At The Public Hearing?

The Board Chairman will open the hearing by reading the application or legal ad into the record. The applicant and/or their attorney is then called to make their presentation to the Board. Correspondence received from other town boards and or committees is read into the record as well as any correspondence from abutters. The Board members may ask questions of the applicant. The Chairman will ask if any audience members wish to speak.

For residential additions, tear downs and the like, the board is generally concerned with the general impact, if any, to the abutters, any safety or traffic issues, stormwater runoff, septic issues, and visual issues. Early communication with your neighbors is vital to ensuring the approval of your project. Neighborhood opposition to your application will decrease the likelihood of approval. While the board is technically not supposed to be a “second architect” on the project, many board members often provide comments and suggestions about the design of the project.

After all of the input the Board may close the public portion and discuss the request among themselves. The Board typically makes a decision at the end of their deliberations.

What Happens After The Board Reaches A Decision?

Once the Board makes a final decision, it is written up and and recorded with the Town Clerk. After a 20 day appeal period, the permit is mailed to the applicant, who then files the permit with the county Registry of Deeds. A copy is forwarded to the Board of Appeals Office and the Building Department. The Building Department may not issue a building permit or occupancy permit without receiving a copy of that recorded decision.

Can I Appeal The Board’s Decision?

Yes, you may appeal the decision in the Superior Court. You must act very quickly however, as appeals must be filed within 20 days of the filing of the decision with the Town Clerk. Zoning appeals are very complex and involve the submission of evidence at a trial before a Superior Court judge. It’s not something that should be undertaken without an attorney.

Richard D. Vetstein, Esq. is an experienced Massachusetts Zoning Attorney, who formerly sat on the Sudbury, Mass. Zoning Board of Appeals. Attorney Vetstein handles zoning matters across the state including the Metrowest towns of Framingham, Natick, Wayland, Weston, Ashland, Sudbury, Wellesley, Northborough, Southborough and Westborough. He can be reached at info@vetsteinlawgroup.com or 508-620-5352.

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The Massachusetts Mechanic’s Lien: What Homeowners & Contractors Need To Know

by Rich Vetstein on July 10, 2010 · 2 comments

in Construction Law,Home Improvement,Liens,Massachusetts Real Estate Law

A mechanic’s lien is somewhat of a misnomer. It has nothing to do with auto mechanics. Rather, it’s a type of lien that general contractors, subcontractors and construction materials suppliers are allowed to record against a homeowner’s property to secure the payment of services, labor or materials. A mechanic’s lien creates a cloud on the title of real estate where their work, material, or services were provided.

Unlike most other liens, a mechanic’s lien does not require court approval. That’s why it is a very powerful tool for construction professionals to ensure that they are paid for their work, labor and supplies.

Mechanic’s Lien Requirements

The critical requirement to obtain a mechanic’s lien is that the contractor must have a written contract with the homeowner. Without a written contract in place, there is no entitlement to a mechanic’s lien.

The process of filing and recording a mechanic’s lien is very strict, and should be done under the guidance of an attorney. There are several notices and documents that must be recorded under strict time deadlines. Any misstep will result in a dissolution of the lien.

Who can obtain a Mechanic’s Lien In Massachusetts?

The mechanic’s lien law has been in existence in Massachusetts since the 1800’s, but lawmakers substantially overhauled it in 1997. The following types of construction professionals can file a mechanic’s lien:

general contractors
subcontractors and sub-subcontractors
machine rental companies
materials suppliers
lumber companies
demolition contractors
landscapers
utility contractors
site excavators
painters
civil engineers and architects
construction project managers.

How Does A Homeowner Remove A Mechanic’s Lien?

If the homeowner believes that the mechanic’s lien is improper, the mechanic’s lien law provides a summary procedure in the Superior Court or District Court to discharge a lien. Consult an experienced attorney in this type of situation.

If the parties can come to an agreement on what’s owed, the contractor can voluntarily dissolve the mechanic’s lien.

Owners can also “bond off” mechanic’s lien by procuring a lien bond from a surety company.

I Paid My Contractor, But His Subcontractor Just Filed A Mechanic’s Lien, What Do I Do?

Although subcontractors do not have a direct contract with an owner, they are nonetheless entitled to a mechanic’s lien for unpaid services/supplies. It doesn’t matter if the general contractor failed to pay his subcontractor. A subcontractor who attempts to file a mechanic’s lien, however, is subject to even stricter requirements under the new Massachusetts mechanic’s lien law, so consult an attorney to verify whether they have followed all the rules. Also, a subcontractor/supplier’s right to recovery is limited to the amount due under the prime contract at the time of the lien. Thus, the longer a subcontractor waits to assert a mechanic’s lien, the less money may be available to satisfy its lien. This can be overcome by serving a written notice of identification, which is a form set forth in the statute letting the owner and general contractor know the sub is on the job.

I always put indemnification/liability shifting provisions in construction contracts which make the general contractor responsible for any claims or liens asserted by any subcontractor. But that doesn’t necessarily prevent a subcontractor from filing a mechanic’s lien. If the lien is valid, you may have to bite the bullet and pay (twice) the subcontractor to release the lien. There is also a lien waiver mechanism where general contractors and subcontractors release lien rights upon progress payments, but they are infrequently used in residential projects.

Consult An Attorney

The Massachusetts mechanic’s lien process is extremely complicated, especially for the average homeowner and even for the experienced construction professional. While it provides a powerful tool for persons seeking payment for their securities in improving real estate, one seeking to enforce the mechanic’s lien must strictly comply with the statute requirements. The wise choice is to consult an experienced real estate attorney with respect to mechanic’s lien issues.

Helpful Links:

Massachusetts Mechanic’s Lien Law

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New Lead Paint Renovation Rules Require Strict Precautions For Homes Built Before 1978

by Rich Vetstein on July 10, 2010 · 1 comment

in Construction Law,Home Improvement,Lead Paint,Massachusetts Real Estate Law,Safety

Under the new federal Lead Paint Renovation, Repair and Painting Rule (RRP), most home improvement projects on homes build before 1978 will require certified lead paint removal contractors to follow strict lead paint removal precautions. To comply with the new regulation, those working on older sites will need to invest in lead-testing kits, plastic sheeting, respirators, protective clothing and other lead-safety materials.

These rules will really impact Massachusetts because its housing stock is much older than other states’. According to a recent Boston Globe article, home improvement costs will no doubt rise due to the new rules.

The threshold for the new rules is whether the home improvement project will disturb more than 6 interior square feet of paint or 20 exterior square feet of paint. This extremely low threshold will cover virtually any home improvement project involving cutting into any wall or ceiling.

The only way to avoid taking the extra precautions is to have a certified inspector (which may be the contractor) perform an EPA endorsed lead paint test which results in a negative result.

The rules went in effect on April 22, 2010, and cover paid renovators who work in pre-1978 housing and child-occupied facilities, including:

Renovation contractors
Maintenance workers in multi-family housing
Painters and other specialty trades.

The new rules require that the contractor performing the work be certified with the Environmental Protection Agency (EPA). The certification process involves taking a day long training session on lead paint removal safety best practices.

Nothing in the new regulations requires owners to evaluate existing properties for lead or to have existing lead removed.

The Massachusetts Division of Occupational Safety will be taking over the enforcement of the rules in Massachusetts.

If you are seeking a certified contractor in the Greater Boston area, George Lonergan of Lonergan Construction, Inc., based in Framingham has been certified and has already performed several jobs using the new precautions.

Helpful Links: EPA Renovate Right Brochure

“Renovation, Repair and Painting (RRP) Regulations in Massachusetts: Information for Contractors”

Thanks to Patrick Maddigan, Esq. and Suffolk Law student Kate Garavaglia for assistance with this article.

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Recent Flooding Impacts Spring Sales Season And Raises Thorny Disclosure And Inspection Issues

by Rich Vetstein on April 9, 2010 · 1 comment

in Home Improvement,Insurance,Massachusetts Property Values,Massachusetts Real Estate Law,Realtors

Post image for Recent Flooding Impacts Spring Sales Season And Raises Thorny Disclosure And Inspection Issues

While folks here in Massachusetts are finally drying out from the Big Flood of 2010, it’s clear that it has negatively impacted the spring real estate market, and will have repercussions for years ahead for buyers and sellers of affected properties.

Impact On The Market

As recently reported in the Boston Globe, realtors around the state have said the flooding caused canceled and delayed closings, final walk-throughs under inches of standing basement water, and postponements of listing homes for sale. Also, lenders are requiring re-inspections and second appraisals to ensure that homes haven’t lost significant value due to the flooding. This is unfortunate as we’re in the middle of the usual busy spring sales season, made even busier by the soon-to-expire $8,000 first time home buyer credit. (Hey President Obama, how about extending the credit for Massachusetts like you did for the tax filing deadline!).

Disclosure Dilemma

Sellers who’ve been affected by the flooding are asking themselves and their realtors how they should handle the inevitable question from buyers: did your basement flood? Under Massachusetts disclosure law, while sellers are under no obligation to volunteer information, they must answer truthfully to any question posed directly by buyers regarding the condition of their property. Real estate agents are held to a higher standard. They must affirmatively disclose any fact that may have a material impact on whether the buyer would purchase the property. You better bet that whether a home experienced water penetration is “material.”

So, realtors and sellers would be wise to come clean if a home was affected by the recent flooding. The key is how to present the flood damage in the best possible light. Which brings me to the next topic…

Get It Fixed, And Done Right

How did you repair the water damage, and are you taking any steps to prevent it from happening again? Tough questions, because this was a 50 or even 100 year storm event. A flooded basement two weeks ago may never get a drop of water again.

Regardless of whether you are now going to invest in a perimeter drain/sump pump system, homeowners should hire licensed contractors who will pull permits to repair all flood damage. Having it done right will prevent even greater headaches later in the form of mold, dry rot and the like. As my friend general contractor George Lonergan of Lonergan Construction points out, pulling permits gives sellers the ability to show buyers that flood damage has been repaired correctly by licensed and qualified contractors with sign offs from the local building inspector.

Lastly, I want to point out to buyers that they shouldn’t simply walk away from a home which experienced flooding or has a sump pump system. Many properties in river watershed communities like Wayland, Sudbury, and Natick for example have historically been subject to flooding and wet basements. Seeing a well run and working dry basement system/sump pump/french drain is a good sign actually. What you don’t want is what looks like a dry basement which later floods and then requires a sump pump system later on.

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Green Energy Trends: Geothermal Technology Becoming More Popular In Massachusetts

by Rich Vetstein on January 3, 2010 · 4 comments

in Green Technology,Home Improvement,Massachusetts Property Values,Massachusetts Real Estate Law,Realtors,Technology

I’m pleased to welcome guest blogger, Leslie Mann, a Realtor with Hallmark Sotheby’s International Realty who specializes in the Dover-Sherborn area of Massachusetts. Leslie is here to talk about geothermal technology, which is growing in popularity in Massachusetts.

Geothermal technology is a great way to heat and cool your home. It costs far less to run and maintain than conventional heating/cooling systems—and reduces your carbon footprint!

According to the EPA, geothermal heat pumps can save homeowners more than 70 percent over conventional air conditioners and up to 44 percent over traditional heating systems. Plus you can take advantage of federal tax credits for new and existing homes using geothermal heat pumps.

Instead of using fossil fuels like oil or gas, geothermal systems use the earth’s natural warmth to heat your home. In the winter, geothermal systems use the earth’s natural heat to heat your house, and in the summer they draw excess heat out of your home and allow it to be absorbed into the earth. A geothermal heat pump doesn’t create heat by burning fuel, like a furnace does. Instead, it collects the earth’s natural heat through a series of pipes, installed below the surface of the ground. Fluid circulates through the loop and carries the heat to the house.

Here are some additional homes for sale in Greater Boston’s Metrowest area that feature geothermal technology:

9-room contemporary home for sale in Carlisle on 4+ acres with in-law suite featuring geothermal heating and cooling $1,055,000.

Five-bedroom Doeskin Hill estates contemporary home for sale in Framingham features four-zone FHA heating/geothermal cooling $1,099,000.

Described as “eco-chic” this new 4800 square foot center entrance colonial for sale in Wellesley featuring geothermal heating and cooling. $1,950,000.

These stylish contemporary townhomes for sale in Newton feature solar panels and geothermal
heating and cooling. $1,789,000

Thanks Leslie for the informative post! Check out Leslie’s great blog, Real Estate In Metrowest for more good tips.

By my own research, a 3 ton geothermal system costs about $7,500. But with the tax credits and energy savings, homeowners will quickly recover the added cost compared with a conventional fossil fuel system. It will be interesting to see whether Massachusetts homeowners, many of whom are environmentally conscious, will consider the benefits of geothermal heating and cooling systems. If I had the extra cash or was building a new home, I certainly would!

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An Interior Designer Talks About Legislation Recognizing The Profession And Enabling Designers To Bid On State Contracts

by Rich Vetstein on October 17, 2009 · 4 comments

in Construction Law,Home Improvement,Massachusetts Real Estate Law

I’m pleased to welcome Noel Sior-Woodard, IIDA, the President of Woodard Interiors, Inc. – a commercial interior design firm located in Grafton, MA. Noel is writing about pending legislation in Massachusetts which will officially recognize the profession and enable interior designers to bid on lucrative state contracts. Noel recently testified before the State Legislature in favor of this important bill.

Interior Designers Do More Than You May Think

Interior designers make decisions everyday that affect the health, safety, and welfare of the general public. They lay out floor plans that comply with all of the relevant building, life safety, and accessibility codes so that all occupants can quickly and safely exit from the building in case of an emergency. Designers select and specify interior finish materials for public spaces that are the approved fire rating according to code. They select and specify interior finish materials in health care facilities that are appropriate for protecting both the patient and staff against unnecessary infections. Interior designers bring colors and patterns together that do not confuse or irritate those affected by mental disabilities. They specify the correct lighting levels so that the elderly are able to walk down a corridor of an assisted living facility safely. They design ergonomic office environments for employees to work in. The work of an interior designer may not always be recognized for all of the research that goes into creating the design – but that is the whole point of hiring a professional interior designer. To create a space that meets all codes while designing an environment that the general public only sees as being beautiful – that is the job of a successful interior designer.

Pending Massachusetts Legislation Enabling Interior Designer To Bid On State Contracts

Currently, House Bill 2999 – an Act recognizing the profession of interior designers to bid on State contracts – is in front of the Joint Committee on State Administration and Regulatory Oversight. Passage of HB 2999 would allow professional interior designers in Massachusetts to bid on State contracts that are relevant to interior design services as the prime consultant. Currently all State interior design projects are awarded to architects and engineers. Unfortunately, Massachusetts does not recognize the profession of interior design. Interior designers within our state are currently not able to bid as the prime consultant on State work. Enactment of the bill would put Massachusetts in line with many other states and the Federal government where professional interior designers are allowed to bid as the prime consultant and which recognize the profession of interior design.

There is also currently another bill that has been filed during this legislative session in support of interior design legislation. House Bill 262 – an Act relative to the certification of interior designers – would allow professional interior designers to be registered with the Massachusetts Division of Professional Licensure. In order to become a “certified interior designer” in Massachusetts interior designers will have to meet all of the education, experience, and examination requirements that the Commonwealth establishes.

Twenty four states, the District of Columbia, and Puerto Rico have either interior design practice acts or title acts. House Bill 262 would establish standards of minimum competency for the use of the title “certified interior designer” within the Commonwealth.

Please join me in supporting Noel and our local interior designers to support this legislation. Allowing interior designers to be certified and bid on state contracts ensures that they are not blocked from the marketplace, and will ultimately protect consumers by requiring uniform standards and competency levels for all such professionals.

To learn more about House Bill 2999 and House Bill 262 and to support this legislative effort go to The Massachusetts Interior Design Coalition.

Noel can be reached for comment at noel@woodardinteriors.com.

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Hiring A Massachusetts Home Improvement Contractor: 10 Things You Need To Know

by Rich Vetstein 07.14.2009 Construction Law

Sadly, completing a home improvement project on time, on budget and with good, quality work is the exception rather than the norm these days. I have seen homeowners pour their home equity lines and savings into home improvement projects only to see the project left incomplete and riddled with defective and poor quality work, or [...]

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