[MassHistPres] zoning "rights" vs limitations in districts

[John Worden]

Dennis,

We have had such cases in Arlington LHDs.  In one case a developer wanted to
put another house directly in front of an old house that sat well back on
its lot on Pleasant St., a major thoroughfare.  We said no.  He protested,
then sold to another developer, who re-arranged the interior of the old
house into two units (as permitted by zoning) and made it look quite nice.

In the other case, there was (for Arlington) a really big lot - about an
acre - with one old house in the center, but back near the rear of the lot.
The developer who bought wanted to build four additional houses.  He tried
to end-run the HDC by going to the Board of Survey for a cul-de-sac for his
frontage.  We pointed out to them that under the law, the HDC had to act
first.  Several lawyers, many hearings and multiple threats (including a
threat of 40B) later (this took several years) we gave a permit for two
additional houses.  He never built but sold to another developer (a member
of our commission) who built one house, and sold the old house & the
adjoining "extra lot" to someone who wanted some space.

John Worden
Arrington HDC

-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Dennis De Witt
Sent: Wednesday, April 10, 2013 6:56 AM
To: MHC MHC listserve
Subject: [MassHistPres] zoning "rights" vs limitations in districts

It's clear that in a district you can require a building be smaller than
zoning allows.  Beyond that . . . 

First, I'd be interested in knowing of examples in LHDs (or NCDs) of either:

a) an applicant being effectively denied the number of dwelling units
allowed under zoning.  For instance, only being allowed building volume
sufficient for two marketable dwelling units where the zoning might have
allowed four

or

b) not being able to build anything on a lot subdivided from another
developed lot -- for instance not in the front or side yard of an existing
house where the effect clearly would be detrimental to the existing house.

Second, is there any LHD or NCD related case law related to this general
type of situation -- i.e. where the applicant might claim confiscation of
property value without compensation because the site's zoning would have
allowed one or more additional buildings or units, not just additional
building volume.  I think there is generally applicable settled case law
covering the confiscation issue re zoning.  I'm wondering if it has been
tested specifically re districts.

Dennis De Witt 
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