Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin October 25, 2011 1 Volume 51 No. 20 Variance—Court Says Issuance of Special Permit under State Statute is All That is Needed for Project to Proceed City and neighbor maintain local zoning ordinance requirements also apply Citation: Gale v. Zoning Bd. of Appeals of Gloucester, 80 Mass. App. Ct. 331, 952 N.E.2d 977 (2011) MASSACHUSETTS (09/02/11 )—This case addresses the issue of whether the application of a local ordinance (such as a requirement to obtain a vari- ance) is precluded by an affirmative finding under Mass. Gen. L. c. 40A, § 6, by a local zoning board, that changes to an existing, nonconforming struc- ture would not be "substantially more detrimental" to the neighborhood and a special permit should issue. In other words, is such an affirmative find- ing alone sufficient to proceed with the proposed project? The Background/Facts: The Footes owned land on Squam Rock Road in Gloucester, Massachusetts (the "City"). It was located in an R -2 residen- tial zoning district, and situated on the coastal peninsula of Annisquam, on Cape Ann, with ocean views of Ipswich Bay. The Foote property contained a 1,000- square -foot seasonal cottage. The property did not conform to the requirements of the City's zoning ordinance (the "ordinance ") regarding: lot area; side yard setback; front yard setback; and rear yard setback. Those nonconformities predated the enactment of the ordinance, rendering the Foote cottage a preexisting nonconforming structure. In 2008, the Footes sought to replace the cottage with a larger year -round residence. They planned a new 2,700- square -foot, two- bedroom structure, which would exceed the bounds of the existing footprint. In furtherance of the planned new construction, the Footes petitioned the City's Zoning Board of Appeals (the "ZBA ") for: (1) a special permit pursu- ant to Mass. Gen. L. c. 40A, § 6; and (2) a variance pursuant to § 2.4.5(d) of the ordinance. Under G.L. c. 40A, § 6: a preexisting nonconforming structure or use may be changed, extended, or altered if it is not "substantially More detri- mental" to the character of the neighborhood than the original structure or use, as determined by the local permit granting authority. Under § 2.4.5(d) of the ordinance, portions of a replacement structure must meet the dimensional requirements of the ordinance, unless a variance is granted by the ZBA. The ZBA eventually granted the Footes a special permit, finding that: "even if there is an intensification of any nonconformities, the house as re- constructed ... will not be substantially more detrimental to the neighbor- hood than the existing nonconforming structure ...." The ZBA also granted the variance, finding that because of the shape and grade of the lot, the Foo- a 2011 Thomson Reuters 7