Posts tagged "1003715"

Palitz v. Zoning Board of Appeals of Tisbury, et al. (Lawyers Weekly No. 10-037-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   SJC-11678   SUZANNE PALITZ, trustee,[1]  vs.  ZONING BOARD OF APPEALS OF TISBURY & another.[2] Suffolk.     November 6, 2014. – March 3, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Subdivision Control, Zoning requirements, Approval not required. Zoning, Nonconforming use or structure, Variance.       Civil action commenced in the Land Court Department on October 10, 2012.   The case was heard by Karyn F. Scheier, J., on a motion for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Daniel P. Dain for the plaintiff. Jonathan M. Silverstein (Katherine D. Laughman with him) for the defendants.   The following submitted briefs for amici curiae: Gareth I. Orsmond & Jesse W. Abair for Massachusetts Association of Regional Planning Agencies & others. Edward J. DeWitt for Association to Preserve Cape Cod. Benjamin Fierro, III, for Home Builders and Remodelers Association of Massachusetts, Inc.     CORDY, J.  In this appeal, we must decide whether a division of land pursuant to the subdivision control law’s existing structures exemption, G. L. c. 41, § 81L (§ 81L),[3] entitles the structures on the resulting lots to “grandfather” protection against new zoning nonconformities created by the division.  As is more fully set forth herein, the plaintiff is the most recent owner of a lot in the town of Tisbury (town).  The lot was created in 1994 by a division of land pursuant to the existing structures exemption.  On the lot is a structure built before both the subdivision control law and the Zoning Act, St. 1975, c. 808, went into effect. The plaintiff sought a permit to tear down the existing structure and build a new one, somewhat larger and taller than the existing structure.  The permit was denied on zoning grounds, and the plaintiff appealed to the Land Court.  A judge in the Land Court concluded that the § 81L division created new zoning nonconformities that deprived the plaintiff’s dwelling of the grandfather status it might have had under the Zoning Act.  As a result, the plaintiff, who sought to tear down and rebuild her dwelling approximately ten feet taller, was required to obtain a variance. We conclude that an exemption from the subdivision control law entitles a landowner to an endorsement that planning board approval is not required for the division of qualifying […]

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Posted by Massachusetts Legal Resources - March 3, 2015 at 6:31 pm

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