Posted by: Patricia Salkin | December 11, 2020

MA Appeals Court Dismisses Claims Challenging Site Plan Approval for Abutting Property Owners

This post was authored by Matthew Loescher, Esq.

Redevelopers Anthony Fava, Ryan Hart, and 654 Mystic, LLC wanted to redevelop property in the city of Somerville by razing an existing commercial structure, excavating the surrounding pavement, and constructing six attached townhouse units. The abutters, Linda Pingiaro and James DeMichele, individually, and as trustees of the 48-50 Ash Avenue Condominium Trust, appealed from two summary judgments of the Land Court that held: the redevelopers’ proposed redevelopment did not require a special permit, the city’s planning board properly granted design and site plan approval to divide the lot into three lots, and the city’s department of inspectional services properly granted associated building permits.

On appeal, the abutters claimed that division into more than two lots could not occur by a “lot split,” which they argued was limited to division of one parcel into two lots. The court found that there was nothing in the bylaw that prevented successive lot splits, and the division of the original parcel into three lots was permitted under the ordinances. Additionally, the court found that the division at issue here did not constitute a “subdivision,” as that term was defined in the §2.2.163 of the ordinances. Specifically, that provision defined “subdivision” as “division of a parcel of land into two or more lots …where a new thoroughfare or way is needed to provide access to the lots which would otherwise be landlocked.” Here, it was undisputed that the proposed lots all fronted on an existing way: Mystic Avenue.

Next, the abutters contended that the proposed redevelopment required a special permit because the proposed development was properly classified as six townhouse units. The local bylaw defined “principal uses” as the main or primary purpose for which a structure, building or lot was used, occupied, or maintained. The record reflected that the structure on each lot would be a two-unit townhouse, which was a use permitted as of right in the BB district. As such, the board and the judge held that the lot divisions allowed the board to consider the use on each lot rather than considering the use on all three lots together. Based on the aforementioned, the court held that the abutters failed to show this was an unreasonable interpretation of the bylaw or otherwise arbitrary, capricious, whimsical, or based on a legally untenable ground.

As a final matter, the parties agreed that whether the proposed construction would violate the ordinances’ three-story height limitation depends on the proper calculation of the finished grade. Pursuant to the plain language of the ordinances, the average finished grade is applicable to determining whether a basement, or in this case the garage, is a story. The court determined that the project was lawful if the average finished grade was used, and the abutters’ argument therefore failed.

Pingiaro v 654 Mystic, LLC, 2020 WL 4932341 (MA App. 8/24/2020)


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