Agenda - Planning Commission - 12/07/2006

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Z.B. November 25, 2006 - Page 5 Zoning restrictions had to be strictly construed, and any ambiguity had to be resolved in favor of the property owner. The village's intention was clear in its choice of the inclusion of the words "open land" to distinguish the specific circumstances that it sought to address in the adoption of that section of the code. The subject property had commer- cial buildings and structures on it. Consequently, it could not be considered open land, and was not governed by that section of the code. see also: 550 Halstead Corp. v. Zoning Board of Appeals of the TownMllage of Harrison, 804 N.E.2d 413 (2003). see also: PMSAssets Ltd. v. Zoning Board of Appeals of Village ofPleasantville, 774 N.E.2d 204 (2002). Variance - Homeowner attempts to build addition using variance granted originally for garage construction Neighbor argues new construction violates terms of original variance Citation: Lussier v. Zoning Board of Appeals of Peabody, Supreme Judicial Court of Massachusetts, No. SJC-09691 (2006) MASSACHUSETTS (10/12/06) - In 1995, the owner of a parcel of property in the town of Peabody applied for a variance to construct a garage attached to his single-family residence. The proposed garage complied with all requirements of the zoning code, with the exception of the side-yard provision. Under the provision, structures must be set back at least 20 feet from the sideline of the lot. The proposed garage would only be set back one foot from the sideline. After a public healing a variance was approved that allowed for the construction of a 22-square foot attached garage. In July 1996, the property was purchased by Lussier, who subsequently built the garage as planned. In October 2003, Lussier applied for and received a building permit to construct a second story above the garage to be used as living space. The proposed second story addition complied with all provisions of the zomng code, except the 20- foot side-yard requirement. Sheehan, a neighboring property owner, filed a written demand with the building inspector to halt construction of the addition on the grounds that it violated the terms of the 1995 vari!ince. The building inspector refused to order the construction to stop. Sheehan appealed to the zoning board of appeals. The board determined that the second story addition to the garage violated the terms of the variance, and the construction was stopped. Lussier appealed to court, and the court reversed the board's decision. Sheehan appealed, seeking again to halt the construction. DECISION: Reversed. @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. I I i 77