Agenda - Planning Commission - 09/06/2018

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Zoning Bulletin July 25, 2018 I Volume 12 I Issue 14 Structures and Scale —Zoning board finds by-law limiting scale of new construction does not apply to an applicant's proposed new construction Abutting landowners challenge that determination and urge a different interpretation of the by-law and its applicability Citation: Sinaiko v. Zoning Board of Appeals of Provincetown, 93 Mass. App. Ct. 274 (May 25, 2018) MASSACHUSETTS (05/25/18)—This case addressed the issue of the ap- plication of a municipal zoning by-law to a proposed new construction. The case involved the interpretation and application of the by-law. The Background/Facts: Stanley Sikorski ("Sikorski") apparently agreed to purchase a vacant lot (the "Lot") in the Town of Provincetown (the "Town"). The purchase was contingent on Sikorski obtaining a building permit. Sikorski proposed to build a two -and -a -half story single-family home, totaling 33,810 cubic feet in volume. Section 2640 of the Town's zoning by-law was "applicable to all new build- ings and all additions in all zoning districts in [the Town]." Section 2640 regulated the scale of new construction and additions. Its purpose was to preserve the Town's existing character of "buildings that have relatively con- sistent and harmonious scale within neighborhoods," and to prevent the construction of "[n]ewer buildings, where the appropriate scale has not been maintained, [that] have disrupted the character of the neighborhoods." To serve that purpose, the by-law limited the size of new buildings and building additions that could be constructed. More specifically, new buildings were al- lowed, as of right, in a scale up to 25% larger than the average size of existing buildings in the area (the "neighborhood average"). The by-law dictated that, with regard to new construction, the neighborhood average was to be calculated based on existing structures that lie within 250 feet of the center of the parcel —with " 'the largest and smallest structures' within that radius . . to be excluded." Landowners seeking to construct a larger building than could be built as of right could apply for a special permit from the Town's Zoning Board of Appeals (the "Board"). When Sikorski applied for a building permit for his proposed home, the building commissioner determined that by-law § 2640—and its scale limita- tions —was not applicable. The building commissioner so determined because in calculating the "neighborhood average" structure scale, only two nearby structures lay within 250 feet of the center of Sikorski's Lot (with the mean volume of those structures being 6,380 cubic feet).. The building commis- © 2018 Thomson Reuters 7