Agenda - Planning Commission - 09/08/2011

Home

July 10, 2011 1 Volume 51 No. 13 Zoning Bulletin The court said this was because the agreement contravened the 2000 Superior Court judgment, and "[n]othing in the by-law or the zon- ing act [gave] Rivet the authority to enter into such an `agreement." In other words, Rivet did not have the authority to abrogate a final judgment of the Superior Court by clandestine agreement with par- ties bound to it. Accordingly, the "agreement" —made in excess of Rivet's authority and in contravention of a binding Superior Court judgment and the bylaw —"was void from its inception." The court also held that the judge's order of restoring historic lot 48 to the status quo before construction "was correct." In so hold- ing, the court rejected Roland's argument that "the judge inappropri- ately ordered the `extreme remedy' ... without first considering if the structure could conform to a legal use." The court acknowledged that ordinarily a court -ordered demolition would be an inappropriate rem- edy "[i]f a landowner c[ould] modify an incomplete structure or seek an appropriate variance or permit so as to bring the property into compliance with a zoning by-law." However, said the court, "where a landowner builds despite notice of a nonconformity and adverse judi- cial action, the landowner acts at his own peril and cannot protest an order to restore the land to its preconstruction state." Here, found the court, Roland, Rivet, and the Board "all had ample notice of the tortured history of historic lot 48," including the 2000 Superior Court judgment. The court found it clear that Roland appreciated the risks of the unlawful construction and pro- ceeded anyway. Roland therefore acted at his own peril; he could not "request an opportunity to cure the nonconformity of his use which he did not cure prior to beginning construction." See also: Building Inspector of Falmouth v. Haddad, 369 Mass. 452, 339 N.E.2d 892 (1976). See also: Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726, 864 N.E.2d 586 (2007). See also: City of Boston v. Back Bay Cultural Ass'n, Inc., 418 Mass. 175, 635 N.E.2d 1175 (1994). Zoning News from Around the Nation FLORIDA On June 2, Governor Rick Scott signed the "Community Plan- ning Act" (HB 7207) into law. "The legislation, which has been characterized as the most sweeping change to Florida's growth man- agement laws since 1985, does away with many state restrictions, 10 © 2011 Thomson Reuters