Agenda - Planning Commission - 11/01/2018

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Zoning Bulletin September 10, 2018 I Volume 12 I issue 17 matter jurisdiction to order McLaughlin to remove the garage." The court concluded that "[b]ecause the Superior Court possessed the subject matter jurisdiction to order McLaughlin to remove his garage, and because the grant- ing of the April 7, 2014 [O]rder did not mark a `plain usurpation of power constituting a violation of due process[,]' the [April 2014 Order] was and is not void." The court, however, did agree with McLaughlin that, given "[t]he unique and narrow facts of this case," enforcing the April 2014 Order "would consti- tute a manifest injustice," thus warranting the April 2014 Order be vacated under Rule 60(b)(6). The court emphasized that "[p]rocess is important." The court found that, contrary to the requirements of § 45-24-62(3)—which gave the superior court jurisdiction to issue the April 2014 Order, this was not a case brought by the Town solicitor via a separate complaint on behalf of the Town setting forth McLaughlin's alleged noncompliance with the Town Zon- ing Ordinance. Rather, the court found that this was a case that involved an appeal of a denied variance, where the Town was the defendant. As such, the court concluded that it was not the required "due proceeding[ ] in the name of [the Town of Tiverton], instituted by its . . . town solicitor . . ," as required by the clear language of § 45-24-62. Furthermore, the court noted that, at the time the Board filed its "Motion for Order to Comply" (which resulted in the April 2014 Order), final judgment had entered. "In other words, the contro- versy before the Superior Court —revolving around whether there were grounds justifying reversal of the zoning board's denial of McLaughlin's vari- ance request under § 45-24-69(d)—had been resolved to a finality." Thus, the court concluded that the Board's filing of the "Motion for Order to Comply" was "an effort to transform the case from a closed -out zoning appeal to a request for permanent injunctive relief "—relief to which the Board was not entitled, found the court. Accordingly, the court opined that, given the facts of the case, the April 2014 Order should have been vacated under Rule 60(b)(6). See also: Zeilstra v. Barrington Zoning Bd. of Review, 417 A.2d 303 (R.L 1980). Use/Nonconforming Use —Property owners operate a commercial kennel and pet store in a residential zoning district that prohibits such uses Property owners argue their use is a "permitted agricultural use" exempt from regulation under Massachusetts statutory law Citation: Fink v. LeDuc, 2018 WL 3340766 (Mass. Land Ct. 2018) ©2018 Thomson Reuters