Posted by: Patricia Salkin | July 31, 2016

MA Appeals Court Affirms Issuance of Special Permit and Rejects Spot Zoning Claim

The Falmouth zoning board of appeals issued a special permit to defendant Johnson Homes, Inc. (developer), to construct ten units of housing in Falmouth. Under the zoning by-law, at most six residential units can be constructed per acre. However, under the developer’s proposal, all ten of the proposed units would be built on what is now lot 9, and would exceed the six units per acre density requirement. In order to bring its proposal into compliance, the developer proposed to merge the two lots into one, and to have the existing commercial development and the proposed residential development treated as a single project. Thus, the project would have fifteen total units (five commercial and ten residential) on 2.62 acres, which would satisfy the density requirement. The trustees of the real estate trust that owned abutting land appealed the special permit pursuant to G.L. c. 40A, § 17. In the same complaint, they also sought a declaration that the rezoning under which the special permit was issued amounted to illegal “spot zoning.” A Land Court judge affirmed the issuance of the special permit and rejected the spot zoning claim.

Here, the court determined that the fact that the zoning amendment may benefit primarily, or even solely, one owner does not render it invalid. Additionally, the abutter failed to show that the rezoning was somehow invalid for lack of planning, since the rezoning proposal went to town meeting only after the matter was reviewed by the town planning board, which concluded that the proposal “made sense” and that “this site [is] suitable for an extension of the existing Business 3 Zone.” Conversely, the evidence adduced at trial demonstrated that the project, allowed by the rezoning, was in harmony with the town’s planning goals.

The abutters also argued the board erred when it applied the density requirement to that larger parcel. Here, because the by-law did not expressly address how the density requirement should be measured where a parcel includes both residential and commercial units, the court found that the board reasonably could treat each commercial unit as equivalent to a residential unit: meaning that the overall density of the combined development could not exceed six units per acre (fifteen units for the two and one-half acre parcel). Accordingly, the issuance of the special permit and rejection of the spot zoning claim was affirmed.

Powers v Falmouth Zoning Board of Appeals, 2016 WL 4070627 (MA App. 7/29/2016)

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