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<br />,":'::~:~.L::::';.,-:": _::;:'-~~:"'-.'.,;-':;"':~-'. -,~::.;.:~:::.:;.. -"- ~-.:-:_-:...-~----_..."'"'~.;..~'~' - <br /> <br />i <br />; i <br />i <br />! <br />1 <br />\; , <br />j: <br />II <br />I <br />1\ <br />L <br />II <br />1\ <br />1\ <br />I! <br />II <br />II <br />i <br />Ii <br /> <br />,I <br />1\ <br />II <br />1\ <br />Ii <br />I: <br />Ii' <br />\; <br />li <br />Ii <br />n <br />Ii <br />I' <br />I, <br />I <br />\ <br />I <br />I <br />j' <br />I' <br />\' <br />I <br />I: <br />\: <br />II <br />.1 <br />\I <br />II <br />I' <br />,I <br />II <br />lj <br />I' <br />.j <br />\: <br />l\ <br />II <br />!i <br />l' <br />J <br /> <br />;f) <br /> <br />.------ <br />(, ) <br />.'..--' <br /> <br />October 25, 2008\ Volume 2\ No. 20 <br /> <br />Conditions~Planning board approves <br />construction with setback condition <br /> <br />Landowner argues condition is improper because it is stricter <br />than :minimum setback of diniensional by-law provision <br /> <br />Citation:, Muldoon v. Planning Bd. of Marblehead, 72 Mass. App. Ct. <br />372, 892 N.E.2d 353 (2008) <br /> <br />MASSACHUSETTS (08/15/08)-In accordance with the town's zon~ <br />ing by-laws, Susan Muldoon sought site plan review from the town's <br />planning board (the' Board) for-the proposed reconstruction of her sin- <br />gle family home. The 130ard conditioned approval of Muldoon's plan. <br />One ~f the conditions the Board imposed was that Muldoon's house <br />had to be positioned thirty feet from the southwesternboundary of t)1e <br />property (the Setback Condition). Muldoon had proposed the house be <br />positioned 8.3 feet from the boundary. The applicable dimensional by- . <br />law required only an eight-foot minimum setback. <br />Muldoon, appealed the Setback Condition. <br />A land court judge ruled that the Setback Condition was: (1) un- <br />reasonable; and (2) beyond the Board's authority. The judge said this <br />was because the Setback Condition violated the uniformity require-' <br />ment under state law. Specifically, Mass. Gen. L. c. 40A, ~ 4 required <br />zoning by-laws be uniform within districts for each kind of structure <br />or use permitted (the "u.niformity requirement"). <br />The Board and Muldoon's abutter, Timothy Havens, appealed. <br /> <br />DECISION: Vacated and remanded. <br /> <br />'- <br />:~.. <br /> <br />The court held that, as a conditio'n of site plan approval, a setback <br />condition that was more stringent than the minimum setback speci- <br />fied in the applicable zoning by-law was reasonable and did not vio- <br />late the uniformity requirement of Mass. Gen. L. c. 40A, ~ 4. <br />In reaching that conclusion, the court first explained "site plan re- ' <br />view." Although not expressly provided for by statute, t):1e court said <br />that site plan review was recognized' "as a permissible regulatory tool <br />and a means for communities to control the aesthetics and environ-' <br />mental irripacts of land use under their zoning by-law." The court ex~ <br />plained that under site plan revieW, a boai:dcould not deny approval <br />for a plan that met specific by-law area' and use, criteria. However, <br />a board could, under site plan review; impose reasonable terms and <br />conditions on the otherwise permitted proposed use. <br /> <br />@ 2008 Thomson ReutersIWest <br /> <br />5 <br /> <br />85 <br />