Sheppard v. Zoning Bd. of Appeal of Boston

• Decision Date: 07 March 2012
• Docket Number: No. 10–P–2070.,10–P–2070.
• Citation: 81 Mass.App.Ct. 394,963 N.E.2d 748
• Parties: Alison SHEPPARD v. ZONING BOARD OF APPEAL OF BOSTON & another.1
• Court: Appeals Court of Massachusetts

81 Mass.App.Ct. 394

963 N.E.2d 748

Alison SHEPPARD

v.ZONING BOARD OF APPEAL OF BOSTON & another.1

No. 10–P–2070.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 5, 2011.Decided March 7, 2012.

John J. Russell, Wellesley, for the plaintiff.

George R. Jabour, Boston, for Robert K. McGarrell.

Adam Cederbaum, Assistant Corporation Counsel, for zoning board of appeal of Boston.

Present: GREEN, VUONO, & MILKEY, JJ.

MILKEY, J.

On December 8, 1998, defendant zoning board of appeal of Boston (board) granted five variances to defendant Robert K. McGarrell to build a single family home of a certain size and configuration on a lot he owned in the South Boston section of Boston. Plaintiff Alison Sheppard, an immediate abutter, filed an action challenging these variances pursuant to § 11 of the Boston zoning enabling act, St.1956, c. 665, as amended through St.1993, c. 461, § 5. She now appeals a decision by a Superior Court judge affirming the board's actions. We reverse and remand for further proceedings consistent with this opinion.

Background. We summarize the facts from the record.² In 1997, McGarrell purchased a 2,600 square-foot lot at 65 P Street in South Boston. The lot is only twenty-six feet wide by one-hundred feet deep, a size and shape that is typical of the neighborhood. As the judge found, “all the lots in the neighborhood are long and narrow, with insufficient frontage or width to build a conforming structure.”

When McGarrell purchased the property, there was an existing single-family, bungalow-style home there. The construction of that house (the old house) predated the Boston zoning code. A portion of the old house was one-story tall, another portion was two stories, and a portion was effectively three stories (given that the lot sloped significantly from front to back, and the basement floor opened at ground level to the back yard). McGarrell knew that the old house was dilapidated, and he intended to tear it down to the studs and rebuild it. However, after he obtained a building permit and began his renovation project, he discovered that the house was in worse shape than he had thought and that its foundation was crumbling. As a result, the old house had to be razed and a new house built from scratch.

Given the size and shape of the lot, any replacement home would necessarily violate existing dimensional zoning requirements in various respects. Nevertheless, as the parties stipulated, McGarrell could have reconstructed the old house as of right, because it was a preexisting nonconforming structure. As Sheppard acknowledged at oral argument, this could have been accomplished through reliance on the preexisting, nonconforming structure provisions of the Boston zoning code (included in what is known as article 9). In fact, according to the board, article 9 potentially allows for some expansions of existing prior nonconforming structures, subject to certain limitations. ³ However, apparently because the house was torn down, the board took the position that McGarrell could not make use of article 9 (even if he simply wanted to reconstruct the old house), but instead needed to pursue variances.

Without obtaining any additional approvals, McGarrell began building a new house that was larger than the old one. After Sheppard complained, the city of Boston enjoined construction, and McGarrell sought approval for the larger house. The Boston inspectional services department denied approval (given that the proposal did not meet existing zoning requirements), and, in accordance with the board's instructions, McGarrell then applied for five variances to allow his proposed house to be built. Although the board granted the requested variances for his submitted plans, McGarrell eventually abandoned those plans and revised them to respond to some of the concerns that Sheppard had raised. Under the revised plans, the house would still be larger in certain respects than the old house. The maximum width of the house would be the same as before, but more of the house would now be of that width (given a change of configuration of the house).⁴ The front of the new structure would be approximately three or four feet closer to the front property line, and the house would extend approximately four feet deeper into the lot (bringing it closer to Sheppard's three-decker house, which abuts the southwestern corner of the McGarrell house). The main respect in which the new house would be larger was its mass, with the new, townhouse-style home 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).

The board again granted McGarrell the variances he sought, and Sheppard brought the current action. After she unsuccessfully sought a preliminary injunction to enjoin construction, McGarrell built his proposed house.⁵ Following a three-day trial in 2004, the judge concluded that Sheppard lacked standing and issued a judgment dismissing her appeal. We reversed and remanded for a decision on the merits. Sheppard v. Zoning Bd. of Appeal of Boston, 74 Mass.App.Ct. 8, 903 N.E.2d 593 (2009). Relying on the existing trial record, the judge upheld the decision of the board after concluding that all of the variance requirements had been met.

Discussion. Standing. Based upon the Supreme Judicial Court's recent decision in Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 944 N.E.2d 163 (2011) ( Kenner ), McGarrell urges us to revisit our decision on standing in the earlier appeal. We decline to do so. In sum, especially in light of the fact that the standing issues in Kenner arose in a different context,⁶ this is not one of those rare instances where reopening an issue resolved in a prior appeal is necessary to prevent “manifest injustice.” See King v. Driscoll, 424 Mass. 1, 7–8, 673 N.E.2d 859 (1996), quoting from United States v. Rivera–Martinez, 931 F.2d 148, 151 (1st Cir.), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991). See also Reilly v. Local 589, Amalgamated Transit Union, 31 Mass.App.Ct. 633, 641–642, 582 N.E.2d 554 (1991).

Merits. Under the applicable section of the Boston zoning code, a variance may be granted only if three conditions have all been met. ⁷ Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston, 70 Mass.App.Ct. 601, 603 n. 5, 875 N.E.2d 521 (2007). As the party who had sought the variances, McGarrell bore the burden at trial of proving his entitlement to them. 39 Joy St. Condominium Assn. v. Board of Appeal of Boston, 426 Mass. 485, 488, 688 N.E.2d 1363 (1998). In reviewing the trial judge's decision, we are mindful that “[n]o person has a legal right to a variance and they are to be granted sparingly,” since if they “are granted with undue frequency or liberality, and without strict compliance with the prescribed statutory criteria, zoning regulations can become a matter of administrative whim.” Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 61–62, 267 N.E.2d 897 (1971).

The size and shape of McGarrell's lot present its principal limitations. However, as the judge below recognized, those “conditions” are not “peculiar to McGarell's lot” but are instead shared by all the other lots “in the neighborhood.” Therefore, under the express terms of the Boston zoning code, the lot's dimensional limitations cannot serve as the basis for a variance. See Feldman v. Board of Appeal of Boston, 29 Mass.App.Ct. 296, 297, 559 N.E.2d 1263 (1990) (variances typically not available due to a failure to meet dimensional requirements).

The “peculiar” condition on which the judge relied was the dilapidated condition of the old house.⁸ This type of condition would not justify a variance pursuant to G.L. c. 40A, § 10, but as the judge recognized, the provisions of the Boston zoning code are somewhat more forgiving as to what sorts of “peculiar” circumstances or conditions would qualify.⁹ However, assuming that the condition of the house would qualify as the basis for a variance, McGarrell still needs to prove that “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 as granted by the Board is the minimum variance that will accomplish this purpose.” Boston Zoning Code, art. 7, § 7–3(b). By definition, proposed construction would require the “minimum” variances needed to allow for a reasonable use, only if it caused the least divergence from applicable zoning requirements necessary to allow for such a use.

It is uncontested that McGarrell purchased the property for the very purpose of living there in a home of the size and configuration of the old house. This establishes a baseline for reasonable use of the property, absent proof of what change in circumstances rendered the former intended use of the property no longer reasonable. See Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston, 70 Mass.App.Ct. at 606, 875 N.E.2d 521 (upholding denial of variance where “Steamboat does not assert that the building, in its preexisting condition, was inadequate for reasonable uses such that failure to grant an exception could be considered unreasonable”).¹⁰ McGarrell offered no such proof, nor did he make any showing that building a larger house was necessitated by his having to tear down the old one.¹¹ Instead, the record reflects only his understandable preference for a larger home.

In light of McGarrell's failure to demonstrate that he could make a reasonable use of the property only by building a larger house, the construction of the larger house would require more than the “minimum variance” needed for a reasonable use if it would increase noncompliance with the zoning code. The judge recognized that the larger house would in fact increase the existing nonconformities. However, he ultimately deemed these increases inconsequential, because he concluded that...