Agenda - Planning Commission - 10/02/2003

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Page 4 -- August 25, 2003 By 1997, the business sold about 5,000 hand-painted pieces of clothing. Burnham's husband worked there, as did one full~time employee and one part~ time,employee. It was noted most of the work was completed in a large addi'- tion to the original strncture referred to as the family room. Burnham maintained a separate telephone line, accepted daily truck deliv- eries, and allowed one employee to park in her dr/¥eway. The alternate building inspector for the town cited Burnham for violating the town bylaws and ordered her to cease and desist ushng employees at her residence. Burnham appealed to the zoning board of appeals, which found for the building inspector. She appealed the board's decision to the lower court, rais- ing two issues. First, Burnham cites the relevant statute and argued the board failed to file its decision with the town clerk within the required 100 days; thus her appeal of the order was "constructively" ~anted. Second, she claimed to be entitled to continue her business use under a town bylaw permitting home occupations. DECISION: Affirmed. The board's decision was upheld. The board had voted to deny Burnham's appeal, even though it failed to file the decision with the town clerk until 11 days after the 100-day period expired. The court looked to the relevant statute and deterrmned there was a 14-day extension beyond the 100-day requirement, and the board had acted on a timely basis. Thus, there was no constructive gant of the appl/cation. The court also ageed the board's decision was not arbitrary. The board had' discretion to prohibit a use that had r/sen to a levet where it was no longer subordinate and minor in significance to the use of the property as a residence. Here, Burnham's business had grown beyond an "incidental" use and had lost its status as an "accessory" use. Citation: Burnham v. Town of' Hadley, Appeals Court of Massachusetts, No. 01-P-1605 (2003). 102 Undue Hardships w Owners apply for area and height variances Denied due to lack of practical difficulties or undue hardship NEW YORK (7/2/03) w Russo and Cohen are property owners who applied for area variances in their respective communities. Cohen owned unimproved oceanfront property located in the Village of Saddte Rock and wanted to obtain a variance to construct a single-family dwethng there. The Russos applied for a height variance to allow the construction of an Il*foot wrought iron gate in the driveway of their home located in North Hills. Tn both cases, the building inspector denied the applications, and the own- ers appealed to the local boards of zoning appeals. The boards from both com- munities denied the appeals, deciding the owners failed to establish. "practical difficulties" or "undue hardship" as required by existing zoning requirements. Later, Cohen and Russo sued separately in. an attempt to annul the boards'