Agenda - Planning Commission - 02/03/2005

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Page 4--Januaryl0,2005' owned within a designated preservation area-. In. 1980, the preservation area was established, which prohibited the construction of any buildings. The area was zoned as a preservation area due to geologic instability. In 1990, Quaker's predecessors requested an amendment to decrease the size of the preservation area. The board ultimately approved a new plan, but specifically permitted only 10 houses to be built in the area. From 1991 to 1998, at least 14 houses were built in the area despite the restriction. After a landslide damaged several of the houses, three of them were demolished. In 2001, Quaker received offers to purchase lots within the area. However, because there were already 11 houses partially wi.thin the area, the board-of appeals denied the necessary building permits. QUaker sued, and the court ruled in.favor of the board. Quaker subae- quently appealed, arguing the number of houses to be counted as part of the 1 O-house limit actually meant the number of lots. Noting that only three houses were located entirely within the former preservation area, Quaker argued the intent of the 10-house limit was not to include houses only partially within the area. DECISION: Affirmed. The board's determination was reasonable. The term "house" was not synonymous with the term "lot." Moreover, when the zoning'code referred to "lots" rather than "houses," it so indicated. The record contained evidence the board was aware that the land in the former preservation area was geologically unstable, the development had been restricted in the area for some time pr/or to the 1990 amendment, and recent landslides had destroyed several houses in the area. Consequently, it was reasonable for the board to conclude the 1990 resolutions were primarily con- cerned with the effect that housing construction, not undeveloped lots, would have upon the former preservation area. Restricting the number of lots within the area would not address the primary concern underlying the resolutions -- namely geologic instability. see a&o: Ball Corp. ~: Fisher, 51 P. 3d 1053 (2001). see also; City & County of Denver v. Board of Adjustment, 55 P3d 252 (2002). 98 Special Permit-- Company ar~maes site-plan approval equivalent to special permit Seeks to continue use without permit Citation: Bt[mo v. Board of Appeals of Wrentham, Appeals Court of Massach~setts, No, 02-P-t582 (2004) MASSACHUSETTS {'I 1/29/04) -- [n 1984, Delphic Trust obtained site-plan :~tzW:c v:,,! 57r :~ trucl< .~_~;.dn_~en:mc':~ :md ?e~';m!in~ de?t. ,~ ~ ....... .... ne,~u._~t,/be!ievin~ it © 2005 C:ui~ian Publishing G¢oup. Any reproduciion is prohibiled. For more information please call (817) 542-0048.