11/28/2018 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES NOVEMBER 28, 2018 Another case and same situation happened with at a Falmouth Post Office, that was in a zone that would not normally be allowed and a private developer turned it into private office because it was pre-existing nonconforming. So the argument is that this use began under an immunity and that immunity is now gone because of the Roma decision as a result that it's lawful pre-existing nonconforming. The final argument is that the law has changed and there is some case law that suggests that retroactive enforcement of the law is not fair if it would unreasonably interrupt expectations of the parties, and or if the law was not clearly foreshadowed the change in the law. Two years before the Roma decision, the Massachusetts Appeal Court affirmed the holding and the status of the law in Massachusetts which was that municipalities could not enforce their zoning against aeronautical uses, and it was two years later that the SJC reversed that. Attorney Wall said he made a case that a reasonable person would not have seen the change in the law foreshadowed, and therefore a retroactive application of the law is unfair in this particular instance. Attorney Wall said those are his arguments, and that he respectfully disagreed with Town Counsel on the point that he said how immunity comes about, and that he focused on the cases cited under governmental immunity cases,and that it is mostly what the Board would see. There are not too many other instances were a private party is immune,but the manner that one gets immunity affects the outcome.The case law simply says that if it was immune, and it changes, it's automatically pre-existing nonconforming. Chairman Furbush mentioned that Town Counsel gives the Board advice on particular zoning cases. Mr. Furbush referenced Chapter 40A Item 6; which authorizes exemptions from pre-existing nonconforming uses that lawfully began prior to the enactment of the Zoning Bylaw Section 174-24 (K) adopted two years prior to the helipad going in. Attorney Wall responded that he is not claiming to use the term "grand-fathering". When the use began it was immune, it was not allowed under the bylaw without relief. So the moment that it began it could exist by immunity. He said there are cases about immunity being lawful. There could be a particular situation that an exemption under zoning Chapter 40A Section 3, there can be an educational use, a day care or sober house that exists by exemption,and if the law were to change those uses are not going away they're lawful pre- existing non-conforming. Attorney Wall said that the reason he filed a request for relief is such that if the Board were to grant a Written Finding, that says this use can continue per the Board's finding then he would withdraw the Appeal of the Building Commissioner. If the Board doesn't grant the finding, he has to preserve his client's rights and ask for a decision on the first petition. 3