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

[Bob Mitchell]

Tom: Thanks for the posting about the Mashpee case. Do you have a citation
for the case? I would need to read the case and see what the facts were and
the reasoning behind the Land Court decision. However, it would appear to
directly contradict at least two Appeals Court decisions that laid out the
process for a lot with inadequate frontage to become a building lot, and
that is the two-step process, the first of which is the ZBA granting a
frontage variance.
Also, that Land Court decision only applies to that specific case, it is
not a precedent decision that applies statewide.

Thanks,
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



On Wed, Feb 9, 2022 at 10:45 PM THOMAS FUDALA <tomfudala at comcast.net> wrote:

> 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
>
>
>
> 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
>
>
>
> On Wed, Feb 9, 2022 at 7:32 AM clerk via MassPlanners <
> 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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