Posted by: Patricia Salkin | September 19, 2019

MA Appeals Court Denies Special Permit Application to Candy and Gift Shop in Residential Area

This post was authored by Matthew Loeser, Esq.

Plaintiff, Brenda Haryslak, owned a residence located in the town’s R-B residential zone. In 2015, the plaintiff filed an application with the town board for a special permit to operate a specialty candy and gift shop at her residence. The special permit application proposed daily hours of operation and off-street parking, which included a large parking area adjacent to the residence that the plaintiff intended to pave. The board denied the application, and the plaintiff sought judicial review of the board’s decision. The Superior Court judge affirmed the board’s findings that the proposed retail use of the property was not a customary home occupation under the bylaws and that the proposed retail use would be detrimental to the surrounding residential properties.

On appeal, the plaintiff argued that since there were other residential properties in the area that had been allowed to conduct retail operations, such operations were “customary” within the meaning of the bylaws. In response, the zoning enforcement officer testified that many of the retail operations offered as examples by the plaintiff were preexisting nonconforming uses rather than home occupations authorized by special permit under the bylaws. The court found this testimony supported the judge’s conclusion that the evidence of other retail operations was “not instructive to the court as the other properties did not involve similar circumstances and bylaws at the time of their approval.” The board further found that the proposed use would be detrimental to the residential neighborhood, as there was evidence that as many as forty customers each day would access the property from the already busy street. Accordingly, the judgment of the Superior Court was affirmed.

Haryslak v. Town of Groveland,  2019 WL 4620336 (MA App. 9/19/2019)

 


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