11/28/2018 ZONING BOARD OF APPEALS ZBA Decision

Home Browse Search

l A HPEE ZONING BOARD OF APPEALS DECISION FOR AN ADMINISTRATIVE APPEAL To THE BUILDING COMMISSIONER William R. Haney 540 Great Neck Road South(Map 99 Parcel 40-0) llrlashpee, MA 04 APPEAL-2018-33 Another ease and sane situation happened with at a Falmouth Post Office,that was in a zone that would not normally be allowed and a private developer tumed it into private office because it was pre-existing nonconforming. So the argument is that this use began under an inununity and that immunity is now gone because of the Ronna 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 Ronna decision, the Massachusetts Appeal Court affirrned 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 S3C reversed that. Attorney Fall 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 irnnnunity comes about, and that he focused . on the cases cited under govenunental immunity cases,and that it is mostly what the Board would see. There are not too many other instances were a private party is mune,but the manner that one gets immunity affects the outcome.The case law simply says that if it was ini mune, and it changes, tt"s automatically pre-existing nonconforming. Chairman Furbush mentioned that Town Counsel gives the Board advice on particular zoning cases. liar. Purbush referenced Chapter 40A Item ; which authorizes exemptions from pre-existing nonconforming uses that lawfully began prior to the enactment of the Zoning Bylaw Section 174-24(I )adopted two years prior to the helipad going in. Attorney wall responded that he 'is not claiming to use the ternm;grand-fathering'. When the use began it was inununc,it was not allowed under the bylaw without relief. So the moment Haat it began it could exist by immunity.He said there are cases about immunity being lawful.Where 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, 4