Agenda - Planning Commission - 02/02/2012

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October 25, 201 1 I Volume 51 No. 20 Zoning Bulletin tes would face a unique personal and financial hardship if the dimensional requirements of the zoning ordinance were enforced. Abutting property owners of the Footes, the Gales, appealed the ZBA's decision to Land Court. They argued that the variance was granted in error.. They contended that the topography and shape of the Footes' lot were not extraordinary. They also argued that lot shape was not a proper legal con- sideration in determining whether a variance should be granted. The Land Court affirmed the ZBA's decision. The judge held that a find- ing under G.L. c. 40A, § 6 would have been sufficient to allow reconstruc- tion of the structure; a variance was not legally required. The Gales appealed. They argued that "the local requirement of seeking a variance pursuant to § 2.4.5(d) of the ordinance, in addition to the G.L. c. 40A, § 6, finding, [was] not precluded by the language of the statue." In other words, the Gales argued that the language of G.L. c. 40A, § 6 did not allow for reconstruction of a structure based only on the findings that the structure would not be "substantially more detrimental" to the character of the neighborhood than the original structure or use; rather, argued the Gales, if a local ordinance additionally required a variance—as here then that too must be obtained. Here, the variance was improperly granted, ar- gued the Gales. The ZBA also filed a brief, maintaining that the City had the authority to require certain variances under S 2.4.5(d). The ZBA also argued that the variance here was properly granted. DECISION: Affirmed. After analyzing the statutory language, the Appeals Court of Massachu- setts held that if there is a finding of "no substantial detriment" under' G.L. c. 40A, § 6, that finding alone is "sufficient to proceed with the proposed project" and the applicant is entitled to issuance of a special permit; when there is such an affirmative finding, the statute precludes the application of a local by -law or ordinance as an additional step. The court concluded that, here, the ZBA's finding of "no substantial detri- ment" was all that was required; no variance under the ordinance was need- ed to proceed with the Footes' proposed reconstruction. See also: Brans ford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852, 832 N.E.2d 639 (2005). See also: Willard a Board of Appeals of Orleans, 25 Mass. App. Ct. 15, 514 N.E.2d 369 (1987). Case Note: The court noted that its interpretation of the statutory lan- guage was "in keeping with special treatment explicitly afforded to sin- gle or two- family residential structures under the statute." 8 © 2011 Thomson Reuters