Zoning Board of Appeals denied Jet Eight Group’s application for a G.L.c. 40A, §6 finding to permit a change from office use to restaurant use of a small portion of their commercial building. Jet Eight Group wished to convert two vacant units into a restaurant and bar. To do so, a finding was required that the change would not be substantially more detrimental than the existing non-conforming use to the neighborhood. The commercial building was considered a non-conforming use because the parking lot failed to meet requirements of the local zoning code. The Board denied the finding because of the substantial change Jet Eight Group was seeking and stated that the change would be substantially more detrimental to the neighborhood. Later, the parties agreed that Board’s decision was premised on the view that there would not be sufficient parking and this inadequacy would be detrimental to the neighborhood. Jet Eight appealed.
On appeal, the Court determined that the Board acted arbitrarily and capriciously when it denied the finding. Specifically, the Board was required to conduct a broad inquiry of the actual impact of the change in parking needs and parking availability in the neighborhood. Here, the Board did not inquire as to the neighborhood impact before it determined that the change would be substantially more detrimental that the existing nonconforming use. As such, the Board’s decision was annulled and the change was allowed.
Jet Eight Group LLC v. Hanley, 2011 WL 285632 (Mass.Land.Ct. 1/18/2011)
The opinion can be accessed at: http://masscases.com/cases/land/2011/2011-08-384961-DECISION.html
