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SJC Agrees With Amici Curiae Brief Filed By Rackemann Attorneys in Important Zoning Decision

The Massachusetts Supreme Judicial court issued a ruling last week in the landmark zoning case of Palitz v. Tisbury Zoning Board of Appeals et al., in which the court agreed with the arguments contained in an amicus brief filed by Rackemann attorneys Gareth Orsmond and Jesse Abair.

The case involved 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 was appealed through the courts all the way to the Supreme Judicial Court, with the owner arguing that her plans did not require a variance due to the “existing building exemption” under the Subdivision Control Law.

Gareth Orsmond and Jesse Abair filed an amici curiae brief with the SJC 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 the American Planning Association. In the brief they argued 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. Abair and Orsmond contended that Palitz’s characterization of the issue was flawed, and that in effect she was 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 said, is vital to municipal and regional planning initiatives and cannot be undermined by subdivision law.

In their decision, issued March 3rd, the Supreme Judicial Court agreed with the arguments put forward by Orsmond and Abair in their brief and affirmed the Land Court’s judgment, concluding that a previously granted variance “cannot serve as a launching pad for the expansion of zoning nonconformities.  Consequently… in order to proceed with her project… the plaintiff was required to obtain a new or amended variance.”

The full text of the ruling is available here.

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