loading.. eLaws | eCases | General Laws of Massachusetts | Massachusetts Courts | Counties & Cities of Massachusetts | Code of Federal Regulations | United States Code |. Id. Graham argues that the Building Inspector's and the ZBA's interpretation of the Ordinance is entitled to deference in this regard. Finally, it is particularly important to note that the rights or interests Plaintiff claims are being injured must be ones that G. L. c. 40A and the Ordinance are intended to protect. App. With permission of this court, Graham filed a Supplementary Letter dated February 23, 2012, and at that time the matter was taken under advisement. ?ogr!i#rdD;"aa tTTdNCq |~#H|O8_z%Tq4wza^?.i2 aJy~c~y- }_M[H7(e>Y:;zswR~]+*q.Z0l~LEwPH4^oyi7:#/8CV0P" r)T#Ma>U&exbDt6%GBDb&~2Tdb+e:V0kJ$>ml,:a =fy:$;*x3Hf'y]0Mw$g9eU IGh^ ILGh$8@#{#I^@#1-Z #tq`D{/jFkV!`5#19 As part of this transition, you will need to register for a new account on View Point Cloud. in current Zoning By-Law document. Heacock, 402 Mass. Much like the plaintiff in Gallagher, our Plaintiff claims that the Barn, being so large (4,800 square feet, 35 feet in height), does not fall within the Ordinance's concept of accessory use. Questions about legal information? I GRANT Plaintiff's Motion for Summary Judgment as it relates to the dimensional violations of the Barn and DENY Plaintiff's Cross-Motion for Summary Judgment as it relates to the same. Id. These activities are commonly practiced in accessory buildings and are naturally associated with a single-family residence, especially a lot which is 6.5 acres in size. The minimum area requirements applicable to land in the B-2 Zoning District shall not apply to any lot described in a deed or shown on a plan recorded in the Norfolk County Registry of Deeds on or before November 15, 1999 (the effective date of the amendment creating the B-2 District), provided that such lot was not held in common ownership . Bank, 283 Mass. The Barn is also used for storage and maintenance of equipment related to personal agricultural and forestry uses of Defendant Property for fruit and nut trees, berry bushes, and firewood harvesting. This court does not usually take a site view on a summary judgment motion, as there are only supposed to be issues of law, and not of material facts, for resolution. NG3d6SE#}X5G!7\+=HUi As a result of the foregoing, I DENY Plaintiff's Motion for Summary Judgment as it relates to the uses being made of the Barn and GRANT Graham's Cross-Motion for Summary Judgment as it relates to the same. 9. He could not make a determination as to dimensional violations because no "as-built" plan had been submitted to his office showing the location of the Barn, and 2. As a result of the foregoing, I find that this court has subject matter jurisdiction pursuant to G. L. c. 40A 7, relative to the appeal of ZBA Decision 2. Phone: 781-862-0500 Town Office Building Hours: Monday, Wednesday, Thursday 8:30 AM - 4:30 PM One City Hall Square, Boston, MA 02201. DIMENSIONAL REGULATIONS . Initially, we will be starting with Health permits . If you don't see your city or town listed, or you want to be sure that you have the most current information, contact the town or city clerk. Plaintiff filed his Opposition to the Motion to Dismiss on June 1, 2011, together with Affidavits of Stuart L. Miller, Jr. and Kelley A. Jordan-Price, Esq., and Appendix. Finally, Plaintiff challenges the validity of the two ZBA decisions. Public Records . endstream endobj 13 0 obj <> endobj 14 0 obj <>>>/Rotate 0/Type/Page>> endobj 15 0 obj <>stream If general and zoning bylaws appear separately on the town's site, we list them separately here. On January 11, 2012, Graham filed his Motion to Strike the Cunningham Affidavit and the Curley Affidavit. [Note 1] Graham also filed a Motion for Site View, which was opposed by Plaintiff. That there was no evidence as of yet of auto repair being done on the property, and; 5. 2K,^2,QlV amG6 The Barn causing erosion, drainage and topographical problems on Plaintiff Property; and 6. The Barn reducing natural light, being a fire hazard, a source of noise, a potential source of insects, and an environmental concern; 5. A case management conference for this case was held on February 15, 2011, at which time the two cases were consolidated. hb```a`` + fa``t{ @ZfbqK-f rp 16 , 18-20 (1943)). App. Ng Bros. . On April 25, 2006, the Building Inspector issued a building permit to construct a 40 x 60 barn, thirty-six feet in height, to be used for unheated storage ("Building Permit 1"). 12 0 obj <> endobj The Planning Board's duties and authority shall include, but shall not be limited to, those specified in Massachusetts General Laws ( MGL) Chapter 41, Section 81A et seq. With respect to subject matter jurisdiction, Graham contends that Plaintiff did not file his appeal of Building Permit 1 for more than four years (the filing of the appeal of Building Inspector Decision 2 on August 26, 2010), and cites Gallivan v. Zoning Board of Appeals of Wellesley, 71 Mass. Moreover, dimensional requirements for structures in the SC zoning district are already defined in the Ordinance's Table of Dimensional and Density Regulations, along with requirements for many other zoning districts, and require a twenty-five foot side-line setback for accessory structures and a thirty-five foot height limitation. [Note 15]. 1 1200 Regulations. Thomas Bridgewater, Local Building Inspector - Tbridgewater@cityofhaverhill.com. [Note 17] Like the accessory uses, supra, Ordinance Table 1 permits, as of right, in an SC zoning district: - Agriculture, horticulture and floriculture, except a greenhouse or stand for retail sale. Ct. 276 , 277 (2006). 7. Plaintiff filed his Motion for Summary Judgment on October 26, 2011, together with supporting memorandum, Statement of Material Facts, and Appendix. Little evidence was presented that any cognizable portion of the use of the Barn or Defendant Property can be considered agricultural. With permission of this court Graham filed a Supplementary Letter dated February 23, 2012, and at that time the matter was taken under advisement. Accessory structures are not expressly limited by size requirements, other than height, under the Ordinance. ORDERED and ADJUDGED that Plaintiff has standing to pursue this matter. maximum height of structures, and all other dimensional requirements in the several districts as set forth in the Table of Dimensional Regulations, except as hereinafter prcwlded_ SUB URBAN DISTRACTS DISTRACTS DISTRACTS DISTRACTS SMU UMW DMV HRC of Dwe All All I dwelling All All All All All All FAR 0.35 0 75 0.35 Lot ocoa 7000 ooc 6030 4500 6030 [Note 20]. On December 16, 2011, Graham filed his Cross-Motion for Summary Judgment, together with supporting memorandum, Opposition to Plaintiff's motion, Statement of Material Facts, and Affidavits of James H. Graham and Donald Borenstein (second). 40 , 45 (2001) (quoting Franklin v. North Weymouth Coop. In deciding a motion for summary judgment, the court may consider pleadings, depositions, affidavits and admissions on file. It is undisputed that Plaintiff and Graham were parties to both ZBA Decision 1 and ZBA Decision 2. Z osB Information about projects reviewed by the Planning Board and Zoning Board of Appeals (ZBA) is provided further down the page. Trial Court Law Libraries. Deference to the Building Inspector and his interpretation of the required sideline setback of the Barn. Note: Lot Width is measured at the front set-back line. c. 40A, 17, appealing a decision ("ZBA Decision 2") of the ZBA, dated December 29, 2010, which upheld a decision of the Building Inspector relative to the allowance of an alleged side yard setback violation for the Barn. The uses, in general, Graham was engaging in within the Barn were not permitted accessary uses to the principle use of Defendant Property as a residence; 4. In Shirley, a mobile home park, protected by the grandfather provision in G. L. c. 40A 6, wanted to expand the number of mobile homes on the property from sixty-five to seventy-nine. Since the Barn has characteristics of a private garage, and the Ordinance limits the number of noncommercial vehicles in a private garage to three, it is necessary for Graham to adhere to this provision of the Ordinance. Case law instructs that the term agriculture be interpreted broadly. A. Moreover, there are a number of agricultural uses enumerated as permissible accessory uses under the table, including horticulture and floriculture. I shall discuss each of these issues in turn. Building Inspectors. The term res judicata encompasses both claim preclusion and issue preclusion. "Summary judgment is granted where there are no issues of genuine material fact and the moving party is entitled to judgment as a matter of law." Specifically, where the procedures of the agency are significantly different from judicial procedures, there is considerably less chance that the administrative determination will be given preclusive effect. Just as one would use a toolshed, greenhouse, or private garage, Graham uses the Barn. B. City Hall Searles Building 41 Pleasant Street Methuen, MA 01844 Monday - Thursday 8 a.m. to 4:30 p.m. Friday 8 a.m. to noon [Note 10] The Cunningham Affidavit and the Curley Affidavit provide enough credible evidence of particularized harm to Plaintiff for a finding of standing. Thus, Plaintiff has presented credible evidence to support his claims of harm, meeting his burden of proof as was required by Graham's rebuttal of Plaintiff's presumption of standing. There shall be a 5-member Planning Board elected on a rotating basis of 1 member each year for a 5-year term. Plaintiff had a survey plan prepared by Jim Troupes, dated November 25, 2008. A motion to dismiss should only be granted where the movant "[shows] to a certainty" that the plaintiff "[is] entitled to no relief under any state of [the] facts." There are a number of issues in this case. (8) see section 2464 Zoning By-Laws (9) see section 2475 Zoning By-Laws (10) see section 4385 Zoning By-Laws (7) all other uses, see section 2412 Zoning By-Laws MAXIMUM STORIES MAXIMUM HEIGHT (6) see 2463 Zoning By-Laws However, the definition continues to state "or a use not the principal use which is located on the same lot as the principal structure." . at 27-28 (citing Circle Lounge & Grille, Inc. v. Board of Appeals of Boston, 324 Mass. . 635 , 639 (1970); Davis v. Zoning Board of Chatham, 52 Mass. y9BOv4u! It seems to define an accessory use on the one hand as "incidental and subordinate to the principal use of a structure or lot" - a common definition among zoning bylaws. App. MA 01608. The Barn being out of character with a single-family neighborhood; 4. 978-374-2325. The list of structures described in Table 1, under "Accessory Uses," indicates that the use of accessory structures may entail agricultural, reparative, automotive, or hobby like activities - as these types of activities would naturally be found in "a private garage, playhouse, greenhouse, toolshed, or similar accessory structures." [Note 9] Thus, I find that ZBA Decision 2 is not precluded from appeal under the doctrine of res judicata. If the presumption of standing is properly rebutted by Graham then Plaintiff must prove standing, "which requires that the 'plaintiff establish - by direct facts and not by speculative personal opinion - that his injury is special and different from the concerns of the rest of the community.'" See Town of Tisbury v. Martha's Vineyard Commission, 27 Mass. Document Center. Since the Barn has characteristics of a private garage, and the Ordinance limits the number of noncommercial vehicles in a private garage to three, it is necessary for Graham to adhere to this provision of the Ordinance. App. Form; Dimensional Chart; Home Departments Inspectional Services Zoning Document Center. 2022 Special Permits. This section establishes requirements for the analysis and evaluation of transportation impacts associated with proposed developments. Ct. at 249 (quoting Sher v. Desmond, 70 Mass. Massachusetts Courts Counties & Cities of Massachusetts Code of Federal Regulations Issue preclusion "prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies." Ct. 129 , 132 (1992)). Pre-existing non-conforming residential lots (R40, TR) of 15,000 square feet or less shall be allowed to have a maximum lot coverage of up to 20%. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. As a result of the foregoing, I find that the Cunningham Affidavit and Curly Affidavit were properly filed with this court and, after inspection, are not based purely on speculation. [Note 16]. A case management conference for this case was held on February 15, 2011, at which time the two cases were consolidated. Graham argues that this matter is not ripe for summary judgment, as there are issues of material facts. Ct. 435 , 441 (2005)). Plaintiff filed his Motion for Summary Judgment on October 26, 2011, together with supporting memorandum, Statement of Material Facts, and Appendix. Market Analysis and Strategic Action Plan for Downtown Haverhill (2007) Haverhill TDI District Planning Study. I base standing solely on the alleged harms related to increased water runoff on Plaintiff Property and drainage problems therefrom, as well as diminution in the value of Plaintiff Property stemming from the size and scale of the Barn and its affect on the natural lighting of Plaintiff Property. I disagree. After the foundation had been poured Graham retained Laurence H. Ogden, a structural engineer, who prepared construction plans for the Barn dated January 15, 2007, submitted to the Building Inspector in December 2010, [Note 3] showing a two-floor structure, to be constructed with steel beams, and totaling 4,800 square feet.