Agenda - Planning Commission - 09/06/2007

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July 15, 2007 I Volume 1 \ No. 14 Lots-Board approves permit to build on nonconforming lot under grandfather clause Neighbor challenges grandfather status citing petitioner's common ownership with adjacent lot .Citation: Nielsen v. Board of Appeals of Wareham, 69 Mass. App. Ct. 1106,2007 WL 1650019 (2007) MASSACHUSETTS (06/07/07)-Chiaraluce was the sole trustee for the Chiaraluce Realty Trust (Trust) which owned a lot in the town of Wareham. Chiaraluce also owned an adjacent lot with his wife. The lot owned by the Trust contained a small residential structure until it was destroyed by a hurricane in 1991. The town granted a blanket permit for the reconstruction of ail residences that were destroyed by the hurricane, but the structure on the Trust's lot was never rebuilt and the permit expired. Evenmal- ly, Chiaraluce and his wife sold the lot that they owned together and sought to build a home on the lot owned by the Trust. In 2001, Chiaraluce applied for a building permit for the construc- tion, but, at the time of his application, the lot did not meet the require- ments for a buildable lot. Chiaraluce sough'[ a special permit granting him grandfather status, which would evoke the building standards for lots that were in place at the time when the Trust took ownership in 1993. At that time, the lot was still considered buildable fu-"lder the per- mit granted due to the hurricane. Importantly, for a lot to be considered eligible for grandfather sta- ms, the property: 1) could not be held in common ownership with ad- joining land, 2) had to conform to '[he zoning requirements that existed previous to the change that rendered i'[ nonconforming, 3) had to have an area of at least 5,000 square feet, and 4) had to have at least 50 feet of frontage. A neighboring property owner, Nielsen, challenged '[he board's deci- sion to grant the permit and the grandfather stams-ultimately land- ing the case in coun. A trial court upheld the board's decision, and Nielsen appealed. Decision: Reversed. On appeal, Nielsen argued that the lot in question did not meet the grandfathering criteria because it was in common ownership with an adjacent lot and because it did not meet the minimurn frontage require- ment. The appeals court disagreed on the ownership issue, but it did find that the frontage requirement was not met. Therefore, the lower court had erred in upholding the board's decision. 7 107