Posted by: Patricia Salkin | February 6, 2011

MA Land Court Finds Property Owner Entitled to Special Use Permit for Deck

Property owner received a building permit to add a deck to his condominium unit but the permit was later revoked by the Town of Marblehead Zoning Board of Appeals (ZBA).  After an unsuccessful appeal, property owner filed an application for a special permit, which the ZBA denied.  When property owner appealed, however, the parties agreed to a settlement.  When property owner applied for a modified special permit as part of the settlement the ZBA denied his application.   The Court assessed whether or not the ZBA exceeded its authority in denying the first special permit or alternatively, whether it exceeded its authority when it denied the second special permit.

As to the first special permit, the property owner alleged that the ZBA made no findings relevant to its denial.  Further, property owner asserted that the deck complied with the five requirements set forth by Section 200-36B of the Bylaw.  The Court determined that the deck did not increase nonconformities of either structure or use but that the ZBA’s concern over the potential nuisance of noise and cigarette smoke was valid. Additionally, the Court stated that even if it were to disagree with the ZBA’s decision to deny the first special permit, it would not be proper to substitute the Court’s judgment in favor of that of the ZBA. 

The second special permit, however, was improperly denied as the ZBA exceeded its authority since there was no evidence that the second deck would increase nonconformities to the property owner’s building.  Additionally, the Court determined that the second deck would not be detrimental to the neighborhood because of a loss of privacy. The matter was remanded to the ZBA to issue the second special permit.

Roger v. Moriarty, 2011 WL 193204 (Mass. Land. Ct. 1/7/2011)

The opinion can be accessed at: http://masscases.com/cases/land/2011/2011-06-317772-DECISION.html


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