Agenda - Planning Commission - 06/07/2007

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Zoning Bulletin MASSACHUSETTS (04/05/07)-Ferragamo owned property in the city of Salem consisting of three lots located in a single-ramily residential zone. The type of zoning district in which Ferragamo's property was located was one of the most restrictive zones in the city. Multifamily dwellings were not allowed in the zone. Nonetheless, Ferragamo applied to the zoning board of appeals for a use variance to construct seven buildings that would house 27 townhouses. The build- ings would have attached parking garages and an additional 67 parking spaces in lots. Ferragamo also asked for variances for permission to have more than one dwelling on a lot and waive the minimum lot area per dwelling and minimum distance benveen buildings requirements. 1-"1 addition, the plan called for a new road to be constructed. The area in which the property was located was steep and hilly, and constructing the new road would require blasting. All of Ferragamo's variance requests were denied. Ferragamo sued the board in court, claiL-ning that it exceeded its authority in denying the variances. According to Ferragamo, his applications met all necessary requirements. The board asked the court to dismiss the claim, arguing that Ferragamo's applications did not meet the requirements for grant- ing variances. DECISION: Dismissed. The board claimed that Ferragarno failed to state a claim upon which relief could be granted-which was a ground for dismissal-because the zoning ordinance did not ex-pressly allow use variances. The board argued that, as such, it djd not have the authority to grant variances to Ferragamo. Ferragamo argued that the board filed its request to dismiss too late, but the court round that a claim of failure to state a claim upon which relief could be granted could be made at trial for the first time because it did not require a response from the other party. For a case to be dismissed on this ground, the board had to prove "beyond doubt" that Ferragamo could "prove no set of facts iL-"1 support of his claim which would entitle him to relief." To decide on this issue, the court had to look at the part or the ordinance related to varianCeS. The ordinance stated, in part, that: "Except where local ordinances or by-laws shall expressly permit variances for use, no variance may au- thorize a use or activity not otherwise permitted i.t"} the district in which the land or structure is located." The ordinance also contained language that specified single-farnily dwellings were the only permitted uses in Ferragamo's zone, and it also listed multifamily dwellings as "uses spe- cifically excluded." With regard to the board's power to grant variances, the ordinance stated that the board could "authorize...a variance from the terms or 10 186