Last week the Dennis Planning Board voted to recommend Town Meeting reject the petitioned article seeking to restrict the size of cottages located within the Seasonal Resort Community Zoning District to a level below the limit established in the November 2010 Town Meeting vote. The Board discussed both the legal issues and the original intentions of the Seasonal Resort Community By-law.
The legal issues related to the petition conflicting with two sections of the State Zoning Act will be an important part of the deliberations:
MGL Chapter 40A
Section 4. Any zoning ordinance or by-law which divides cities and towns into districts shall be uniform within the district for each class or kind of structures or uses permitted.
Section 6. Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five….
Under MGL Chapter 40A Section 4, the Board found that the petitioned by-law would treat each property differently, violating the uniformity principles within zoning districts. As discussed previously, Review of Proposed May 2012 Petition to Restrict The Size of Cottages in Cottage Colonies, the petitioned article would impact each property in the Seasonal Resort Community differently.
Under MGL Chapter 40A Section 6, the Board noted that the date, as used in the petition, September 5, 2010, would serve no “useful zoning purpose” and would effectively violate the grandfather protections provided for under Chapter 40A Section 6. This is in stark contrast to the purpose of using the September 5, 2010 date in other sections of the Seasonal Resort Community By-law which sought to provide an “amnesty” date tied to the first posting of the Seasonal Resort Community Zoning By-law. This amnesty date recognized that many changes had occurred on these properties since the properties were originally grandfathered in 1973 and established a new grandfather protection date by which future changes would be judged. The “useful zoning purpose” being providing zoning protections for improvements that might have been done improperly over the preceding 37 years.