15 Mass. App. Ct. 733 | Mass. App. Ct. | 1983
The defendant Dreamland Theater, Inc., owns a roughly rectangular parcel of land in Nantucket which has frontage on South Water Street, Oak Street, and Easy Street, with a seasonal movie theater located at the South Water Street end. The entire parcel is within a Residential-Commercial zoning district and was subject, under the 1980 zoning by-law, to a maximum ground coverage ratio (building area to lot area) of fifty percent and an off-street parking-spaces requirement which apparently works out to eleven or twelve spaces.
The planning board filed an appeal from the September, 1980, decision in the Superior Court but later entered a voluntary dismissal with prejudice. In 1981 Dreamland applied to the building inspector for a building permit to construct the proposed commercial building on lot 2. The building inspector refused the permit, apparently on the ground that the additional construction would cause the ground coverage ratio on lots 1 and 2 combined to exceed the by-law’s fifty percent maximum. Dreamland appealed to the board of appeals, which ordered the permit to issue, taking the position that the issue of ground coverage ratio was foreclosed by the 1980 proceedings. The planning board appealed to the Superior Court from the 1981 decision of the board of appeals, and appeals to this court from a decision which held that the dismissal of the appeal from the board’s 1980 decision barred consideration of the merits of the board’s 1981 decision.
It was stipulated in the Superior Court that the ground coverage of the proposed commercial building on lot 2 would not exceed fifty percent of the area of lot 2 but that construction of that building would cause the ground coverage ratio of all the buildings on lots one and two to exceed fifty percent of the area of the combined lots.
It is doubtless true that the dismissal of the planning board’s appeal from the 1980 decision precludes the planning board from challenging in 1981 whatever matters were before the board of appeals for decision in 1980. Morganelli
The evil of expansive construction of ambiguous proceedings is apparent in this case. Whatever interpretation is put on the 1980 proceedings, it is clear that they were confined to the subject of parking and that no mention was made of the problem of ground coverage ratio. Lot 1, viewed in isolation from lot 2, is in violation of the maximum ground cover ratio established in the by-law. The buildings on lot 1 could not be valid nonconforming structures, because Dreamland had sufficient land area to support the structures and had no right to create a nonconformity. Vetter v. Zoning Bd. of Appeal of Attleboro, 330 Mass. 628, 630-631 (1953). Sorenti v. Board of Appeals of Wellesley, 345 Mass. 348, 353 (1963). Alley v. Building
Despite some ambiguity in the 1980 proceedings, there can be no contention that they concerned or resulted in the necessary variance either for lot 1 or for the combined lots. The application was directed solely to lot 2 and specifically sought relief only from the parking-spaces requirement. There was no mention of variance in either the hearing notice or at the hearing, and the board’s decision made no reference to a variance, to the ground-coverage ratio requirement, or to the concepts (such as hardship, circumstances peculiar to the parcel, and derogation from the purpose and intent of the by-law) which are necessarily invoked when variances are sought or granted. See G. L. c. 40A, § 10, as amended by St. 1977, c. 829, § 4B. To treat the 1980 decision as having granted such a variance would eviscerate the elaborate statutory provisions for notice, hearing, and decision which attend the granting of that disfavored form of relief. The dismissal of the appeal from the 1980 decision could not have the effect of enlarging the scope of the underlying decision.
So ordered.
Under a 1974 zoning by-law there was no parking-spaces requirement for buildings in the Old Historic District. The record indicates that in April, 1979, that exemption was eliminated, but provision was made for relief by special permit from the parking-spaces requirement as to any land located in the Old and Historic Nantucket District, established by St. 1955, c. 601. The Old and Historic Nantucket District is an historic preservation district with boundaries defined by statute and is to be distinguished from the Old Historic District which is a zoning district the boundaries of which are defined by the Nantucket zoning map. The Dreamland Theater property is within the Old and Historic Nantucket District (the historic preservation district) but is not within the Old Historic District (the zoning district). Thus, the requirement that the movie theater have parking spaces predated the 1979 zoning amendment.
The area requirement for building lots in the Residential Commercial District is 5,000 square feet, and the frontage requirement is forty feet. Lot 2, considered by itself, complied in both respects. No question has been raised or argued in this litigation whether the planning board might
The section referred to appears in the 1980 by-law as § 6-B-4. The parties stipulated at trial that the 1980 by-law was the relevant by-law at all times pertinent to the case.
The notice said “section 6-C-4”, but the by-law has no section so designated, and it is clear that § 6-B-4 must have been intended.
The complaint filed by the planning board in 1980 states that the theater building and the small concrete building behind it cover 5,570 square feet, lot 1 having 7,701 square feet.
The suggestion that “the use of [l]ot 1 and the building thereon is not a matter of concern to the Court but rather a matter for the attention of the