Agenda - Planning Commission - 06/04/2015

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Zoning Bulletin April 25, 2015 1 Volume 9 1 Issue 8 Citation: Palitz v. Zoning Bd. of Appeals of Tisbuiy, 26 N.E.3d 175 (Mass. 2015) MASSACHUSETTS (03/03/15)—This case addressed the issue of whether a division of land pursuant to the Massachusetts subdivision control law's existing structures exemption, G.L. c. 41, § 81L, entitles the structures on the resulting lots to "grandfather" protection against new zoning nonconformities created by the division. The Background/Facts: From 1923 until 1994, the parcels of land now known and numbered as 83, 87, and 89 Main Street in the town of Tisbury, Massachusetts, (the "Town") were held in common owner- ship (the "original tract"). Three single-family residential buildings stood closely clustered on the original tract. The town adopted a local zoning bylaw in 1959, and the state's subdivision control law went into effect in 1974. Under the state's subdivision control law, a person may not subdivide a tract of land unless he or she has first submitted a plan of the proposed subdivision for approval by the town's planning board. (G.L. c. 41, § 810.) However, planning board approval is not required for certain divisions of land that are specifically exempted from the definition of "subdivision" in § 81L of the law. (See G.L. c. 41, § 81L.) A plan fall- ing within such an exemption is entitled to an "approval not required" ("ANR") endorsement pursuant to § 81P. (See G.L. c. 41, § 81P.) In 1994, the owner of the original tract, Michael Putziger ("Putz- iger"), sought to divide the land into three lots, such that a single dwell- ing would stand on each lot, in conformance with the existing structures exemption from the definition of "subdivision" in § 81L. Putziger submitted a plan to the Town's planning board and received an ANR endorsement pursuant to § 81P. The ANR endorsement stated that it did "not stay enforcement of zoning violations." The plan depicting the endorsement and the three newly created lots was duly recorded. The new lot at 87 Main Street, as created by the § 81L plan, did not conform to the town's zoning bylaw regarding minimum lot size and frontage requirements. The creation of the new lot also rendered the dwelling located thereon nonconforming with respect to its front and southern side yard setbacks. Putziger sought variances from the Town's zoning board of appeals (the "ZBA") to make the lot and dwelling law- ful and, therefore, saleable as such. In 1995, the ZBA granted the variances. In 2007, the 87 Main Street Nominee Trust, Suzanne Palitz, trustee, ("Palitz") acquired the lot at 87 Main Street. Palitz sought a building permit to tear down the existing dwelling and construct a new dwelling. The proposed new dwelling would maintain the same footprint as the old dwelling, but add a third floor and be approximately 10 feet taller. The Town's zoning enforcement officer refused to issue the building permit without ZBA amendment of the 1995 variance. © 2015 Thomson Reuters 3 1