[Massplanners] ANRs creating nonconforming lots

[Bob Mitchell]

Mark: as a follow-up to Jeff's accurate description of what a PB can and
cannot do with an ANR plan, see below for more information and for specific
court cases where the courts describe the limits on PB actions for an ANR.
Note that there are no court cases where the court has ruled that a PB can
refuse to endorse an ANR plan because the lots shown do not meet the zoning
lot size requirements.

The definition of the term “lot” in the Subdivision Control Law does not
refer to a lot that satisfies zoning requirements. It makes no inference
that the “lots” shown on a plan are buildable.



The courts have clearly stated that the board may not withhold endorsement
because the “lots” do not comply with zoning requirements (other than
frontage), board of health regulations, or adequate provision of municipal
services. *Gattozzi v. Dir. of Inspection Services of Melrose*
<http://masscases.com/cases/app/6/6massappct889.html>, 6 Mass. App. Ct. 889
(1978). [This link will bring you to a page that lists 2 separate Appeals
Court decisions. The first is a contempt of court case – ignore that one –
and the second is the Gattozzi decision.]



The following cases provide examples where the courts discussed the
relationship of ANR plans and compliance with zoning requirements.



·         In *Smalley v. Planning Board of Harwich*
<http://masscases.com/cases/app/10/10massappct599.html>, 10 Mass. App. Ct.
599, 603 (1980), the Court rejected the argument of the plaintiff that a §
81P endorsement would constitute a decision that the unrelated requirements
of the local zoning code had been met.

·    In *Corrigan v. Board of Appeals of Brewster*
<http://masscases.com/cases/app/35/35massappct514.html>, 35 Mass. App. Ct.
514 (1993), the Court said that a § 81P endorsement makes no determination
of compliance with the local zoning requirements. (other than frontage)


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 Sat, Feb 4, 2023 at 1:17 PM Jeff Lacy via MassPlanners <
massplanners at masscptc.org> wrote:

> Mark:
> There’s only so far a PB can go in regulating an ANR. The criteria are
> limited to the status of the way, frontage along the way, and access across
> from the way across the frontage into the proposed lot. Other zoning
> factors, like lot area, are outside the scope the review. Many boards do
> put the notion you mentioned on the plan as a warning. Some also state “Not
> a building lot” on lots created but clearly substandard. It’s up to the
> town’s zoning enforcement officer to catch these deficiencies and decline
> to issue building permits.
> Best regards,
> Jeff Lacy
> Rural Planning Associates
> (413) 230-9693
>
> Sent from my iPhone
>
> On Feb 4, 2023, at 10:46 AM, Mark Kresge via MassPlanners <
> massplanners at masscptc.org> wrote:
>
> 
>
> Hi planners-
>
>
>
> The 2010 ANR Handbook and the majority of threads in this forum indicate
> that a PB should concern itself only with frontage and adequacy of access
> issues when reviewing an ANR.  Any other potentially problematic zoning
> issues are covered with a blanket statement like "No determination of
> compliance with zoning requirements has been made or intended."
>
>
>
> Other threads suggest that ANRs cannot, or should not, be used to create
> nonconforming lots, and cite unspecified case law.
>
>
>
> Which is it?  Opinions?
>
>
>
> Thanks!
>
>
>
> Mark Kresge
>
> Land Use Clerk
>
> Town of Hubbardston
>
> 7 Main St., Unit #7
>
> Hubbardston, MA 01452
>
> Web: http://www.hubbardstonma.us
>
>
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