Tuesday, August 27, 2013

SEEKING A MGL CH 240 SEC 14A DETERMINATION FOR A NON-CONFORMING LOT


Take a look at Lois A. Jones v. The Town Of Harwich No. MISC 12-46068, Commonwealth of Massachusetts, Trial Court Land Court Department, Plymouth June 24, 2013. The Plaintiff was able to avoid the expense and time delays of (a) preparing plans and seeking a building permit, (b) obtaining a denial from the Building Department, (c) seeking a reversal by the Zoning Board of Appeals, and (d) filing a judicial  appeal of a denial once issued by the ZBA.  “The instant action was initiated pursuant to G.L. c. 240, § 14A by the plaintiff, Lois Jones (plaintiff / Jones). Ms. Jones seeks a judicial determination concerning the extent to which Article IV and Article VI, Table 2 Area Regulations and Table 3 Height and Bulk Regulations of the Harwich Zoning Bylaw (Zoning Bylaw) apply to her parcel of land on Sea Street Extension in Harwich, Massachusetts. Asserting that her property is exempt under G.L. c. 40A, § 6, Jones asks this court to conclude that the dimensional and area regulations of the Zoning Bylaw do not apply to her property.”

 Land Court Jude Grossman determined: “It is true that the language of the statute does not explicitly contemplate a judicial determination as regards the applicability of G.L. c. 40A to a property, since the statute is not a ‘municipal ordinance, by-law or regulation.’ However, the plaintiff seeks not a determination of the applicability of G.L. c. 40A, § 6 per se, but rather a determination concerning the effect of the Bylaw upon the locus. Although an interpretation of G.L. c. 40A, § 6 may constitute a necessary element, it is secondary to the interpretation of the Zoning Bylaw. This court possesses the jurisdiction to consider G.L. c. 40A, § 6 within the context of a challenge to a zoning bylaw.”

Judge Grossman then determined that the lot was a protected non-conforming lot. Nice.

PAUL F. ALPHEN, ESQUIRE

BALAS, ALPHEN & SANTOS, P.C.


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