Recently we were asked to address the situation where a landowner obtained a use special permit with a condition that the structure containing the use be built as located on a designated site plan, and that a final as-built plan be filed after completion of construction. A building permit issued for the structure, but without reference to the site plan or location of the structure. The structure was built and occupied. No final as-built plan was ever filed. More than 10 years passed. It was later determined that the structure was sited on the lot incorrectly. The landowner became concerned that the structure located on its property was not properly authorized and so was unlawful, rendering the property non-compliant with zoning.
In many M.G.L. c. 40A, § 17, appeals, courts are required to interpret the local zoning bylaw or ordinance to address the underlying substantive issue. The judge's standard of review in these cases must give "substantial deference" to a board's reasonable interpretation of its zoning code. However, erroneous interpretations, are not entitled to deference. And it is interesting to see how this dynamic plays out both during a case and after the fact. The recent case of Mauri v. Zoning Bd. of Appeals of Newton, 83 Mass. App. Ct. 336 (2013) (on appeal from the Land Court) provides a good example.