Posted by: Patricia Salkin | April 14, 2014

MA Land Court Holds that Planning Board’s Decision Cannot Be Interpreted as an Impermissible Amendment Since It Had Not Been Filed with the Town Clerk

In this case, the plaintiffs (Gosselins) bought 6 Mill Road, a 12 acre parcel of land containing a single-family home, a barn with seven horse stalls, and an indoor riding facility. The Ipswich Planning Board granted the Gosselins site plan approval to operate a commercial horse farm on the property and to construct a ten stall addition to the existing barn and enlarge and relocate the indoor riding facility. Jay and Janet Lingerman, who live at 8 Mill Road abutting the Gosselin property appealed that decision to this court, contending that site plan approval was invalid since the Gosselin property lacked frontage and was only created by a 1973 variance that expressly limited use of the property to a single-family dwelling. The Ipswich Zoning Board agreed with the Lingermans and overturned the building permit, finding that the commercial horse farm violated the condition of the 1973 variance. The Gosselins then appealed that decision to this court.

In February 2012, the Gosselins bought Lot B, which has legal frontage on Rogers Way, and combined it with 6 Mill Road with the intent of solving their frontage problem. With the reconfigured 6 Mill Road, the Gosselins obtained a Temporary Use and Occupancy Permit from the building inspector allowing them to operate their commercial stable and indoor riding arena. The Lingermans appealed the permit to the Zoning Board, which then held in favor of the Gosselins, finding the 1973 variance condition no longer controlling since the Gosselin property now had sufficient legal frontage on Rogers Way. The Lingermans appealed and contended that this constituted an impermissible amendment.

The court determined that the Planning Board’s October 2012 decision cannot be interpreted as an impermissible amendment since nothing had ever been filed with the town clerk previously, and thus, there was nothing to amend. Since there was only one decision filed with the town clerk on October 31, 2012, that constituted the “final action” on the Gosselins’ application. The Planning Board’s final action came within 90 days of the close of the public hearing on August 16, 2012, and was thus valid under G.L. c. 40A, § 9. Accordingly, summary judgment was granted in favor of the Gosselins.

Lingerman v. 6 Mill Rd., LLC, 2014 WL 1327891 (Mass. Land Ct. 2014)

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