[Massplanners] Putting House on "Not a Building Lot" Parcel

Wed Feb 9 22:51:57 EST 2022

Tom
I'm very interested in this decision, do you have it electronically?
Thanks
Barbara

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________________________________
From: MassPlanners <massplanners-bounces at masscptc.org> on behalf of THOMAS FUDALA via MassPlanners <massplanners at masscptc.org>
Sent: Wednesday, February 9, 2022, 10:48 PM
To: Bob Mitchell; Bob Mitchell via MassPlanners; clerk
Subject: Re: [Massplanners] Putting House on "Not a Building Lot" Parcel

I would note that the ZBA has no authority to grant a frontage variance. Mashpee ZBA granted a 1 1/2 foot frontage variance that was appealed by the abutters to the Land Court. In the case, at which I testified, once standing of the abutters was approved variance was quickly overturned by the Court as illegal and beyond the authority of the ZBA.

Tom Fudala
On 02/09/2022 4:06 PM Bob Mitchell via MassPlanners <massplanners at masscptc.org> wrote:

In response to the email chain regarding "Not a buildable lot" I offer the following information regarding various aspects of this situation and the email responses in the chain. (As an aside, any email chain that includes a clip from Spinal Tap is a great email chain - turn it up to eleven!)

First, a planning board can only endorse (sign) an ANR plan when the board determines the following three standards are met:

*        The lots shown must meet the minimum frontage requirements of G.L. c. 41, § 81L (the frontage requirements of the zoning bylaw or ordinance for the zoning district in which the lot(s) are located, or if no such requirements, then a minimum of 20 feet.)

*         The lots shown on the plan must front on one of the 3 ways specified in G.L. c. 41, § 81L; and

*       The planning board must determine that vital access to such lots as contemplated by G.L. c. 41, § 81M otherwise exists.

If the lots do not meet the zoning frontage requirements, then the ANR cannot be endorsed. Putting a notation that a lot is "Not a buildable lot" on the plan cannot override the statutory requirement that the lots must meet the frontage standards of the zoning district for the plan to be signed. [Note there are two exemptions in G.L. c. 41, § 81 to this.]

Some boards do include a "Not a buildable lot" notation when the lot(s) do meet the frontage requirements, but not other zoning requirements (usually the lot area requirement). However, since the planning board has no legal authority to determine whether a lot is buildable or not, (that is within the purview of the Building Commissioner) I would recommend not using the "Not a Buildable Lot" notation..Instead, another notation that many boards use.has language such as, or similar to, "Endorsement of this plan makes no determination as to whether the lots are buildable or not.", or "Endorsement of this plan makes no determination regarding conformance with the zoning bylaw other than the frontage requirement."

Second, in order to make a lot that does not meet the frontage requirement a "buildable lot", a 2-step process is required.

Step One - The ZBA must grant a variance from the frontage requirements.

Step Two - A Definitive Subdivision Plan must be filed with the planning board and approved by the board with a waiver of the subdivision frontage requirements.

I hope this provides some clarification to a process that can be confusing.

Bob

Bob Mitchell FAICP
Planning Consultant
Land Use, Planning, Zoning, & Training Programs
151 Tremont Street Suite 23A
Boston, MA 02111
617-512-9751 (c)
MitchellFAICP at gmail.com<mailto:MitchellFAICP at gmail.com>

Bob Mitchell FAICP
Planning Consultant
Land Use, Planning, Zoning, & Training Programs
151 Tremont Street Suite 23A
Boston, MA 02111
617-512-9751 (c)
MitchellFAICP at gmail.com<mailto:MitchellFAICP at gmail.com>

On Wed, Feb 9, 2022 at 7:32 AM clerk via MassPlanners <massplanners at masscptc.org<mailto:massplanners at masscptc.org>> wrote:

A few years ago the owner of a property came in to do an ANR on a property in Shirley.  They divided out a large parcel into 2 parcels with one having adequate frontage and square footage and the other (though it has over 5 acres of land) only with 89' of frontage (not adequate for that zone) so they appropriately marked it "not a buildable lot" for the sake of the ANR.  The owner of that property now wants to put a house on the "not a buildable lot" property using the Town's hammerhead lot portion of the zoning by-law which only requires 50" frontage.  Is this appropriate even though it is marked "not a buildable lot"?  Is that "not a buildable lot" title a forever thing or can be built on under the right situations?

Bill Oelfke

Vice Chair, Shirley Planning Board

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