Posts tagged "Cohasset"

Koines, et al. v. Zoning Board of Appeals of Cohasset, et al. (Lawyers Weekly No. 11-014-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   16-P-678                                        Appeals Court   ALEXANDER C. KOINES & another[1]  vs.  ZONING BOARD OF APPEALS OF COHASSET & others.[2]       No. 16-P-678.     February 21, 2017.     Zoning, Nonconforming use or structure, Lot size, Exemption, Judicial review.  Real Property, Merger.     The plaintiffs appeal from a judgment of the Land Court that affirmed a decision of the defendant zoning board of appeals of Cohasset (board) based on a conclusion that the board correctly interpreted the Cohasset zoning by-law to afford grandfather protection to a lot owned by the defendants John and Martha Shaw.  We affirm.   At issue in the case is section 8.3.2(c) of the by-law, the language of which is set out in the margin.[3]  The Shaws’ lot, containing approximately 21,850 square feet, is located in an R-C district in which the minimum lot size is 60,000 square feet.  The current minimum lot size results from an increase enacted by amendment to the by-law in 1985, at a time when the Shaws’ lot was held in common ownership with several parcels of adjacent land.  The lot accordingly plainly meets the literal linguistic requirements of the second portion of section 8.3.2(c) as applicable to lots in the R-C district.   The plaintiffs nonetheless contend that the board erroneously interpreted the by-law to afford grandfather protection to the lot by virtue of the common law doctrine of merger.  Under that doctrine, a lot held in separate ownership at the time an increase in area renders it nonconforming and thereby entitled to grandfather protection under the fourth paragraph of G. L. c. 40A, § 6, loses grandfather protection if it thereafter comes into common ownership with adjoining land.  See Preston v. Board of Appeals of Hull, 51 Mass. App. Ct. 236, 243 (2001).  As the plaintiffs observe, this court reached its conclusion in Preston despite the fact that the lot at issue met the literal linguistic requirements set forth in the statute, resting its conclusion on the fact that the Legislature, though presumptively aware of the preexisting and well-established merger doctrine at the time it enacted § 6, did not evince a clear intent to alter the common law.  See id. at 240, 243.   The present case stands differently since we are presented with an enactment of the Cohasset town meeting, construed by the local zoning board of appeals […]

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Posted by Massachusetts Legal Resources - February 21, 2017 at 8:12 pm

Categories: News   Tags: , , , , , , ,

GPH Cohasset, LLC, et al. v. Trustees of Reservations, et al. (Lawyers Weekly No. 11-076-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       13‑P‑1304                                       Appeals Court   GPH COHASSET, LLC, & another[1]  vs.  TRUSTEES OF RESERVATIONS & others.[2] No. 13‑P‑1304. Suffolk.     April 2, 2014.  ‑  June 25, 2014. Present:  Grainger, Rubin, & Hanlon, JJ.   Zoning, Special permit, Conditions, By‑law.  Real Property, Conservation restriction.  Environment, Noise.  Evidence, Disclosure of evidence, Expert opinion.  Witness, Expert.  Practice, Civil, Discovery.       Civil action commenced in the Land Court Department on March 25, 2011.   The case was heard by Alexander H. Sands, III, J.     Damon M. Seligson for the plaintiffs. Michael K. Murray for Trustees of Reservations & another. Kimberly M. Saillant for planning board of Cohasset.     GRAINGER, J.  The plaintiffs, GPH Cohasset, LLC; and GGNSC Cohasset, LLC (collectively, Golden Living), appeal from a judgment of the Land Court affirming a decision of the defendant planning board of Cohasset (board) to grant defendant Conservation Wind Partners, LP (Conservation Wind), a special permit to erect a wind turbine on property owned by defendant Trustees of Reservation (trustees).  On appeal, Golden Living asserts that (1) the trustees and Conservation Wind did not satisfy their burden of proof to obtain approval of the special permit and site plan, (2) the wind turbine creates public safety concerns, (3) the judge erred by precluding Golden Living’s expert witnesses from testifying, and (4) the judge erred by declining to compel the production of the wind turbine’s operating manual. Background.  We recite the facts as found by the judge following a bench trial, reserving certain details for our discussion of specific issues.  On October 28, 2010, Conservation Wind filed an application for a special permit and site plan approval to erect a wind turbine on certain property (locus) owned by the trustees.  The locus consists of two large parcels of land, which together comprise approximately 314 acres within two adjacent reservations known as Whitney and Thayer Woods (WTW) and Turkey Hill Reservation (Turkey Hill).  The towns of Cohasset and Hingham (collectively, towns) own much of the land surrounding the locus, which, along with the locus, is open to the public for recreational use. The towns granted conservation restrictions to the trustees, limiting the use of the town-owned land in Turkey Hill (the municipal restrictions).  The municipal restrictions each contain several prohibited uses, including the construction of any permanent structure, cutting or removing trees, and any surface […]

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Posted by Massachusetts Legal Resources - June 25, 2014 at 9:06 pm

Categories: News   Tags: , , , , ,