GARY GHILANI and RITA GHILANI v. JAMES HANNA, TARA ILLIANO and PHILIP JACK, as members of the TOWN OF ASHLAND ZONING BOARD OF APPEALS, and the TOWN OF ASHLAND. ANDREW STUCCHI, Intervenor.
Long, J.
This case presents a single dispositive issue, which turns on the interpretation of the Ashland zoning bylaws. At issue is the status of the property at 487 Main Street (487) in Ashland, created in 1984 by combining one-and-a-half lots from a 1943 subdivision plan. 487 is undersized and lacks sufficient frontage to be buildable under Ashlands current zoning bylaws dimensional requirements. But Bylaw § 282-24.G allows those requirements to be reduced in certain circumstances, for residential use only, through the granting of a special permit. The crucial question is whether that bylaw provision applies to 487. 487 Main Street was created in 1984, but, by the doctrine of merger, ceased to be a separate lot for zoning purposes in 1997 when it was purchased by the owners of the adjacent property at 491 Main Street (491) (the plaintiffs) and title to the two properties was held in common ownership. As a result, the Zoning Board of Appeals (the Board) denied the plaintiffs special permit application on the basis that Bylaw § 282-24.G did not apply. This case is the plaintiffs G.L. c. 40A, § 17 appeal from that denial, coupled with a claim that the denial was an unconstitutional taking of the plaintiffs property without just compensation.
For the reasons set forth in the courts Memorandum and Order on Plaintiffs Motion for Judgment on the Pleadings of this date, I find and rule 487 and 491 became one lot by merger in 1997. Since the reference in § 282-24.G is to a lot as it exists at the time of the special permit application, it is inapplicable to the plaintiffs property and the Boards decision was correct. The plaintiffs unconstitutional taking claim derives solely from their contention that the Board improperly denied the special permit application. Since the Board acted properly, that claim fails as well. As the defendants requested, the plaintiffs complaint is therefore dismissed, in its entirety, with prejudice.
SO ORDERED.
By the court (Long, J.)
Attest:
Deborah J. Patterson, Recorder
Dated: 30 June 2008