Vetstein Law Group: What The Boston Zoning Board of Appeals Grants, The Courts Taketh Away

Vetstein Law Group: What The Boston Zoning Board of Appeals Grants, The Courts Taketh Away

By Richard D. Vetstein, ESQ

Sheppard v. Zoning Board of Appeals of Boston [enhanced version available to lexis.com subscribers]: Appeals Court Overturns Variances, But Does Not Order Tear-Down Of South Boston Rehab Project

This is the kind of case that aggravates the heck out of me - and it's been going on for 14 years with no end in sight. All disabled Southie homeowner Robert McGarrell wanted to do was improve his living situation. McGarrell, who suffered chronic emphysema, planned to rehab his dilapidated bungalow style house with a new townhouse style open floor plan enabling him to get around better with his oxygen tank. After discovering that the foundation was crumbling, he had no choice but to do a full gut rehab.

Unlike the old days in Southie where neighbors supported each other, abutter Alison Sheppard complained about the perceived impacts of the new house. The front of the new home was 4 feet closer to the front property line, and it extended approximately 4 feet deeper into the lot, bringing it closer to Sheppard's three-decker house. The proposed house was also larger in mass, having a full second story (under a flat roof) over virtually its entire footprint (with a basement floor opening up to the back yard, as before). This was a minimal impact, in my opinion.

In 1998, McGarrell went to the Boston Zoning Board of Appeals and they told him he needed 5 variances. After revising his design to address some of Sheppard's concerns, the board granted the variances. Apparently, the concessions weren't enough for Ms. Sheppard who appealed to Superior Court.

Approval of Variances Always At Risk of Appeal

The result of this case will not surprise anyone who has experience with Boston zoning and permitting. The Boston Zoning Board of Appeals can be fairly liberal in doling out variances, however, the law says they should be rarely granted only in unique circumstances. I would say 80% of all variances issued by the board are susceptible to reversal on appeal, and the Appeals Court ruled McGarrell's variances were no different.

The City of Boston has its own special zoning code which is both similar and different from the state-wide zoning code known as Chapter 40A. To obtain a variance, a Boston applicant must show 3 things:

  • Special and peculiar circumstances or conditions of the land or building such as exceptional narrowness, shallowness,  shape of the lot, or exceptional topographical conditions, and that failing to grant zoning relief would deprive the applicant of the reasonable use of such land or structure;
  • For reasons of practical difficulty and demonstrable and substantial hardship, the granting of the variance is necessary for the reasonable use of the land or structure and that the variance is the minimum variance that will accomplish this purpose;
  • Granting of the variance will be in harmony with the general purpose and intent of the zoning code, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare.

The Appeals Court ruled that neither McGarrell's rectangular lot nor dilapidated home was peculiar in any way to those in the neighborhood. The Court also held that McGarrell could have constructed a smaller home on the existing footprint, and that he could not expand his home vertically "as of right."

Remedy: Second Chance

Fortunately for McGarrell, the court left the door open for his new home to stand. Usually, in the case of construction built at the risk of permits being overturned, the court will order the new structure torn down, as in the recently publicized Marblehead mansion. Since the board supported McGarrell's improvement of a dilapidated structure, the court allowed McGarrell to proceed on an alternative path under another section of the zoning code. The case will go back to the board for further findings, and the 14 year legal odyssey will go on.

Lesson: Get Neighborhood Support Early

The lesson here, as with any Boston zoning matter, is to get the support of the abutters and neighbors as early in the process as possible. Sometimes it's not always possible, so you have to litigate. By not securing the support of Ms. Sheppard, she has been able to put McGarrell's project at substantial risk for over 14 years.

View more from The Massachusetts Real Estate Law Blog

 

 Mr. Vetstein has represented clients in hundreds of lawsuits and disputes involving business, real estate, construction, condominium, zoning, environmental, banking and financial services, employment, and personal injury law.

In real estate matters, Mr. Vetstein handles residential and commercial transactions and closings. In land use, zoning, and licensing matters, Mr. Vetstein offers his clients an inside perspective as a former board member of the Sudbury Zoning Board of Appeals. Mr. Vetstein has an active real estate litigation practice, and was a former outside claims counsel for a national title company.

Drawing on his own business degree and experience, Mr. Vetstein assists his business clients with new business start ups, acquisitions, sales, contract, employment issues, trademarks, and succession planning. Mr. Vetstein also litigates, arbitrates and mediates a wide variety of commercial disputes.

....

Lexis.com subscribers can explore/search Real Estate Law resources on Lexis.com or access any of these Mathew Bender Real Estate Law publications:

Non-subscribers can purchase Property Law treatises/resources and Mathew Bender publications from the LexisNexis Bookstore

Non-subscribers can purchase Real Estate Law treatises/resources and Mathew Bender publications from the LexisNexis Bookstore

For more information about LexisNexis products and solutions connect with us through our corporate site.