Agenda - Planning Commission - 11/01/2007

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October 15, 2007 I Volume 1 I No. 20 i~) Ponce appealed the decision to court, arguing that the city had: based the i decision to revoke his license on an improper interprc:tation of the state law; ! acted arbitrarily and capriciously; and violated his due process rights by not providing sufficient reasoning for the grounds for revocation. I DECISION: Reversed. ! The court first noted that the city had "wide discretion" in dealing . I. with zoning matters, and the' revocation would be upheld if it had "fur- nished any legal and substantial basis" for its decision. The crux of this i case, therefore, was what the basis of its. decision was-the city claimed it I was local zoning regulations while Ponce claimed it was the state law. I i The difference is significant, because Ponce relied on the licensing de- I partment's suggestion that he withdraw his application for a conditional I 1 use permit. The city could not tell Ponce to withdraw his permit applica- 1 j tion and then claim his failure to obtain a permit was the basis for. his license revocation. However, the court found thafwas precisely what hap- pened here. The court further determined that the city's decision was realistically based on the 21~day requirement in the state law. Because that was the true grounds of the city's decision, and Ponce was not aware that the statute would have any bearing on the statute prim to the administrative hearing, the court found that Ponce was not provided adequate due pro- . (-") cess. The court, stated that: "[w]ithout proper notice, [Ponce] could not anticipate potential grounds for revocation or prepare a defense. Due pro- cess demands that [Ponce] have the opportunity to challenge whether the statute [was] controlling." i The issue of whether the state law was interpreted correctly by the I c~ty was not ripe for judicial review because the city's decision did not II claim that it relied on the statute. The court reversed the decision revok- . Ii ing Ponce's license, and it gave him 60 days to apply fora conditional use ;1 i! permit. The court noted that it was not making a finding as to whether .( the permit should be approved, but, rather, it was merely allowing Ponce to continue to operate his business until he had the opportunity to "legiti- mately apply" for a conditional use perrriit and be afforded due process. j Appeal-Homeowner claims board granted variance to i . I ! neighbor illega!ly I Board claims unique topography justifies decision I i I Citation: Whittemore v. Aron, 2007 WL 2745363 (Mass. Land Ct. 2007), 'judgment entered, 2007 WL 2745362 (Mass. Land Ct. 2007) , MASSACHUSETTS (09/21/07)-Aron owned land in.the town ofFram- ingham. The property was a pre-existing, nonconforming lot with a j, one-story single-faniily dwelling and was in a single residence district as i .--' defined by the town's by-laws. 'The by-laws for the district reguired a I minimum lot area of 43,560 square feet, 30 or more feet for front and 5 91