Agenda - Planning Commission - 06/07/2007

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May 1, 2007 I Volume 1 I No.9 DECISION: Affirmed. The appeals court had to review the decision of the board for "errors of law, abuse of discretion, or findings not supported by substantial evidence in the record," and it reviewed cases challenging zoning ordi- nances as though hearing the facts for the first time. Two months before lot 36B was created, the town amended the por- tion of its zoning ordinance related to back lots. Under the back lot or- dinance, a back lot was defined as "any lot or parcel of land which [did] not have frontage on a town accepted road, Qr lack[ed] the minimum frontage on a town accepted road, or lack[ed] the minimum frontage" as required under a section on spatial requirements. In 1998, the ordi- nance was revised again, and, at the time of Merrill's permit applica- tion, aback lot was defined as a "parcel of land which [did] not have any frontage on a Town accepted road." . There was no question that Merrill's lot fit the definition of a back lot both when it was created and when he applied for a building permit. However, he argued that the ordinance applied to vacant lots only. The court was not persuaded by this argument; the ordinance stated that it applied "to all back 10ts as defined." Further, it stated that: "No back lot [could] be developed which fail[ed] to meet the requirements of this Ordinance. " The court had to rely on the plain meaning of the words in the or- dinance. While Merrill argued that the language "no back lot [could] be developed" implied that the ordinance only applied to undeveloped lots-and that his lot was not undeveloped because it had an existing structure on it----,the clear intent of the ordinance was for it to apply to all lots that fit the definition of a back lot. Finally, Merrill had an opportunity to grandfather his property when he received a building permit in 1999. If he had built the house that he was given permission to construct, the lot would have maintained a nonconforming use status. However, since he did not build on the property and the permit expired, the lot became subject to the back lot ordinance. Since the lot did not meet the minimum requirements for a buildable lot, the appeals court affirmed the lower court's decision. Variance-Developer wants to build condos in restrictive zone City denies it has the authority to grant use variances Citation: Ferragamo v. Cohen,2007 WL 1021414 (Mass. Land Ct. 2007), judgment entered, 2007WL 1021415 (Mass. Land Ct. 2007) 9 185