Agenda - Planning Commission - 12/03/2009

Home

f~ \ l I I I I I I! II, I i I~ t ) II I, 'I II i I I I I I I I II II II I (~, Zoning Bulletin August 25, 20091 Volume 3 I No. 16 Nonconforming Use-Reconstruction- Town allows rebuild of prior nonconforming house, that was destroyed by fire Neighbor objects, saying new house is not in "substantially the form" of the old, as required by ordinance Citation: Eastern Point, LLC v. Zoning Ed. of Appeals of Gloucester, 74 Mass. App. Ct. 481, 907 N.E.2d 1151 (2009) , MASSACHUSETTS (06/24/09)-Virgil Martinosis's large, nineteenth , century, Victorian style house w~s destroyed by fire. The house had been a prior nonconforming strllGture. This was because it failed to conform to the city's maximum height requirement and front and side yard set- back requirements. Soon after the fire, Martinosis sought to build a replacement house. 'The proposed house was to be "a contemporary design" and made of brick with "a sort of Mediterranean flair." It ~ould occupy the same footprint as the old house, but with a deeper front setback. Lik~ the for- met house; the planned house would violate maximum height and front and side yard setback requirements. The city's zoning board of appeals (the "Board") detetmined that Marti- nosis did not need a variance or special permit to construct his new house. They found that he could construct it as a matter of right under a city or- dinance (the "O~dinance"). The Ordinance provided that: "In the case of destruction or damage by fire or other cata~trophe, a building or structure . . . [could] be rebuilt in substantially the form as it was at the, time of the destruction . . . ." Further, the Board found that, as required by state law (Mass. Gen. L. c. 40A, S 6) and another city, ordinance, the new house "would not increase the nonconforming nature of the old house and would not be substantially more detrimental to the neighborhood." A neighboring property owner, Eastern Point, LLC, challenged the Board's decision. It argued that Martinosis's new house would not be "in substantially the form" of the destroyed home within the meaning of the Ordinance. Disagreeing with Eastern Point, the Superior Court judge affirmed the Board's decision. It found that the Martinosis's new house was "re- built in substantially the form" of the old house in that it was: "some- what lower, longer; and more conforming to the setback standards;" and would give Eastern Point a "marginally enlarged view of the water above the lowered roof line and a marginally diminished view of it at the ends of the new house." , Eastern Point appealed. @ 2009 Thomson Reuters 11 57