Agenda - Planning Commission - 07/10/2006

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Page8--June25,2006 Setback Requirement ~ Property owner revises site plan to reduce impact on abutting wetlands Neighbor claims constmtction will still cause harm Citation: Harris v. WeIlfleet Conservation Commission, Superior Court of Mc~sachusetts, at Barnstable, No. 05-290 (2006) MASSACHUSETI'S (03/22/06)-- In 1970, Pyles purchased five lots of land on Bayberry Lane in the town of Wellfleet. Pyles developed one of the lots by constructing a single-family residence, and he retained the title to the remaining four lots. Pylcs sought to construct a home on one of thc lots and then transfer it to his son and daughter-in-law. The home was to be located almost entirely within a JO-foot buffer zone, created under the Wellficct Environmental Pro- tection By-Law to protect wetlands. The by-law requiYed that any activity conducted within the buffer zone minimize or mitigate any adverse effects on the wetlands. Thc Wellflect Conservation Commission approved Pyles' development plan; however, thc Wellflcct Zoning Board of Appeals denied Pylcs' application be- cause it violated a 39-foot setback requirement. Pyles filed a revised site plan that re-subdivided the existing five lots into three lots, which allowed the pro- posed residence to satisfy all setback requirements. Importantly, the fina/plan reduced the impact of the well line and the driveway on the buffer zone. Based on these changes, the plan was approved. Harris, whose property abutted the land, filed a complaint in court claiming that the buffer zone was a protected area and that any activity within the buffer zone could adversely affect the adjoining wetlands. Harris claimed that a sub- stantial portion the buffer zone already had been compromised by the paving of Bayberry Lane, and that it should not be disturbed further by the proposed construction. DECISION: Complaint dismissed. An aggrieved party could file a claim when a decision of a board or commis- sion would cause an injury or damage, but the injury caused must be substan- tiai. The court concluded that Harris, as an abutter, had not suffered any injury ~eater than that of the general public. In its analysis, the court determined that Harris had not satisfied the substantial harm requirement and was, therefore, not entitled to relief. In addition, the court's review of the commission's determination concluded that the proposed construction met the requirements of the by-law and was supported by the record. As such, the commission's decision was not arbitrary or capricious. see also: Friedman v. Conservation Commission of Edgarrown, 818 N.E. 2d 208 (2004). © 2006 Quinlan Publishing Group, Any reproduction is prohibited. For more information please call (817) 542-0048. 186