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Rackemann Attorneys Orsmond and Abair File Amici Curiae Brief In Zoning Case Before the Mass. SJC

Rackemann attorneys Gareth Orsmond and Jesse Abair recently filed an amici curiae brief on behalf of the Massachusetts Association of Regional Planning Agencies, the Martha’s Vineyard Commission, Massachusetts Association of Planning Directors, Inc., and the Massachusetts Chapter of theAmerican Planning Association in an important land use case pending in the Supreme Judicial Court, Palitz v. Tisbury Zoning Board of Appeals, et al.

Palitz involves a parcel of land in Tisbury that had received an “Approval Not Required” endorsement from the town’s planning board in 1994.  After the property was subdivided, the owner received a variance for the resulting two lots because they were in violation of the setback and lot size requirements under the Tisbury zoning bylaw.  After a series of conveyances, in 2012 the owner of one of the lots sought to reconstruct their 200 year-old house.  The proposed new house would retain the same footprint as the old house, but would be almost 10 feet higher.  The town’s zoning enforcement officer refused to issue a building permit until the owner amended the existing variance.  However, the Zoning Board of Appeals denied the owner’s variance application. The case has since been appealed through the courts all the way to the Supreme Judicial Court, with the owner arguing that her plans do not require a variance due to the “existing building exemption” under the Subdivision Control Law.

The amici curiae brief argues that the Supreme Judicial Court should reject the appellant’s argument and uphold the Massachusetts Land Court’s prior ruling in the case, which confirmed the requirement that the owner obtain an amended variance. In the brief, Gareth and Jesse argue that Palitz’s characterization of the issue is flawed, and that she is asking the court to hold that an “existing building exemption” under state subdivision law can be used to circumvent municipal zoning authority.  This zoning authority, they say, is vital to municipal and regional planning initiatives and cannot be undermined by subdivision law.

The full brief can be seen here.

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