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September 28, 2005

Court ruling: Orleans property not buildable
By JASON KOLNOS
STAFF WRITER
The Appeals Court of Massachusetts has ruled in an Orleans case that some so-called ''grandfathered'' rights that seem to exempt undeveloped properties from minimum zoning requirements no longer offer that protection.

The landmark decision handed down by the state's highest appeals court Monday could affect hundreds of people who want to build homes on undersized lots.

In April, the court heard the case of Stuart Rothman, an Orleans property owner who has been involved in a three-year dispute with neighbors over a plan to build a single family home on his Priscilla Road parcel the town says is way too small.

His Nauset Heights neighbors, who sued Rothman, feared the extra wastewater would contaminate local waters, and that more homes would clog traffic and cause congestion in the neighborhood.

Rothman's 8,000-square-foot lot - not much bigger than a tennis court - is overgrown with vegetation and offers a slight harbor view along the bumpy, unpaved road. The undeveloped parcel is one-fifth the size of the minimum of one acre needed to currently build in Orleans.

Rothman has said he purchased the property for $300,000 in 2001 because he thought the land was protected under an exemption in a 1954 town zoning bylaw.

After a legal ping-pong match among town building officials, the local zoning board of appeals and the state's Land Court, the state Appeals Court finally heard the suit.

The court tried to determine whether state laws allow a lot that was once buildable to remain ''buildable'' even after the exemption had been repealed. Orleans axed the 1954 provision - which allowed one building on any existing lot at least 5,000 square feet - when it amended bylaws in 1971.

Rothman and his attorney, Duane Landreth, had argued that the earlier ''grandfathering'' should apply to his property even though the exact exemption does not exist in the bylaws today.

The appeals court disagreed with Rothman, saying in a five-page opinion that Rothman's property should have met the minimum zoning standards when it first became separately owned in 1971, regardless of that previously afforded exemption.

Since the minimum lot size back then was 20,000 square feet, his property fell short of the zoning standards.

The court said grandfathered rights under state laws don't apply to Rothman's property because the local exemption had been deleted and modified in Orleans.

Neither Rothman nor Landreth returned multiple phone calls yesterday.

Brian S. Kaplan, the Newton attorney who represented the neighbors, said this new rule has potential implications for hundreds of undeveloped properties that might have outdated grandfather provisions.

''The court is saying that if you

piggyback grandfather rights, you aren't going to be protected,'' Kaplan said.

Orleans building commissioner Brian Harrison estimates that there are 10 to 12 undersized properties in Orleans that could have been deemed ''buildable'' if the court sided with Rothman.

Rothman and his attorney can now apply for their case to be heard by the Supreme Judicial Court of Massachusetts.

Only 30 of the 7,000 decisions appealed to the SJC are heard each year, according to Alexander M. McNeil, an administrator in the clerk's office.

Jason Kolnos can be reached at jkolnos@capecodonline.com.

(Published: September 28, 2005)

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