Agenda - Planning Commission - 04/07/2011

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Zoning Bulletin January 25, 2011 Volume 51 No. 2 The Background/Facts: William P. Johnson ( "Johnson ") was a de- veloper. In August 2005, Johnson acquired "Lot 38" in the town. Lot 38 consisted of 21,867 square feet of land, or about one -half acre. Lot 38 was located in a zoning district that allowed single- family residential uses as of right on a minimum lot size of 43,560 square feet, or about one acre. Lot 38 had historically been part of a larger parcel (25,770 square feet in area) made up of several lots held in common ownership. That larger lot had been recorded in an 1876 plan with the registry of deeds. The larger parcel had complied with the applicable dimensional require- ments of the zoning by -law until 1965. At that time, it then became sub- ject to the one -acre minimum requirement. Under Massachusetts statu- tory law —G.L. c. 40A, § 6, 4th paragraph —the larger lot (now noncon- forming) was grandfathered from application of increased zoning restric- tions (i.e., the new one -acre minimum requirement) from "the time of recording or endorsement" —which was 1876. In 1971, the town 'took by eminent domain a portion of this larger parcel. That taking left Lot 38 totaling 21,867 square feet. In 2005, Johnson sought to construct a single - family residence on Lot 38. He applied to the town for a building permit. He maintained that Lot 38 qualified for grandfather protection under G.L. c. 40 A, § 6. He contended that this allowed him to build on the lot despite its noncon- formance with the one -acre minimum requirement. The building inspector denied the permit on several grounds. Among other things, she found that Lot 38 did not qualify for grandfather pro- tection under G.L. c. 40A, § 6. Lot 38 therefore was nonconforming. Johnson could build on it only if he obtained exemption, special permit, or variance. Johnson appealed the denial of the building permit to the town's board of appeals (the "Board "). In August 2005, Johnson also applied to the Board for a variance and a special permit to allow a single - family residence on the property. The Board upheld the denial of the building permit. It also declined to issue a variance or special permit. Johnson appealed. The land court judge concluded that, in this case, the grandfathered status of the original larger parcel "did not carry over to the lot that re- mained after the taking." Johnson appealed. DECISION: Affirmed. The Appeals Court of Massachusetts agreed with the land court judge. It held that "the portion of non - conforming property [(i.e., Lot 38)] that remained after taking was not exempt from existing zoning re- strictions" by a statutory grandfather status. © 2011 Thomson Reuters 9