KEVIN M. FULGONI v. SUSAN MILLER, ROBERT A. REDFERN, JOHN A. JAREMA, PAUL DUSTIN, MICHAEL CONWAY, and PETER TEDESCO, as they are members of the TOWN OF READING ZONING BOARD OF APPEALS

This case is the plaintiff’s, Kevin M. Fulgoni, G.L. c. 40A, § 17 appeal of the defendant Town of Reading Zoning Board of Appeals’ (the “ZBA”) decision upholding the building inspector’s denial of the plaintiff’s application for a building permit to construct a single-family dwelling on the property identified as Lot A, South Street in Reading (“Lot A”). Lot A was once part of a larger parcel of land and was located in a Business “C” Zoning District. After the Commonwealth took a portion of Lot A by eminent domain as part of a taking for the alteration of Route 128 (which effectively severed Lot A and other properties from the town’s central business district), the town rezoned the property (and the other affected properties) to a Residential A-1 Zoning District. At the time of the zoning change, Lot A did not meet the area and frontage requirements for a buildable lot in the Residential A-1 Zoning District.

In 2006, the plaintiff applied for a building permit to construct a single-family dwelling on Lot A (now located in an S-15 Residential Zoning District). The building inspector denied that request, stating (among other reasons) that the property did not meet The Town of Reading Zoning By-Laws’ (the “Bylaw”) requirements for the S-15 Zoning District. The plaintiff appealed to the ZBA, arguing that he was entitled to grandfather protection under G.L. c. 40A, § 6 and the Bylaw since Lot A, prior to the rezoning, was in compliance with the Bylaw. The ZBA upheld the building inspector’s denial, finding that Lot A was not entitled to grandfather protection since it could not be developed for residential purposes prior to the zoning change (only certain commercial uses) and thus it was never a lawfully created residential lot prior to the zoning change.

The plaintiff now appeals from the ZBA’s decision. Both parties have filed cross-motions for summary judgment. For the reasons set in the court’s Memorandum and Order on the Parties’ Cross-Motions for Summary Judgment of this date, I ALLOW the defendants’ motion for summary judgment and DENY the plaintiff’s motion. Lot A is not entitled to grandfather protection under either G.L. c. 40A, § 6 or the Bylaw. Accordingly, the ZBA’s decision is upheld. The plaintiff’s claims are dismissed in their entirety, with prejudice.

SO ORDERED.

By the court (Long, J.)