Sheppard v. Zoning Bd. of Appeal of Boston
Decision Date | 02 April 2009 |
Docket Number | No. 07-P-1673.,07-P-1673. |
Citation | 903 N.E.2d 593,74 Mass. App. Ct. 8 |
Parties | Alison SHEPPARD v. ZONING BOARD OF APPEAL OF BOSTON & another.<SMALL><SUP>1</SUP></SMALL> |
Court | Appeals Court of Massachusetts |
John J. Russell, Wellesley, for the plaintiff.
Wendy H. Sibbison for Robert K. McGarrell.
Suchita B. Desai, Assistant Corporation Counsel, for zoning board of appeal of Boston, was present but did not argue.
Present: KAFKER, GRAHAM, & WOLOHOJIAN, JJ.
The plaintiff, Alison Sheppard, appeals, pursuant to § 11 of the Boston zoning enabling act (enabling act), zoning variances granted to her neighbor, Robert K. McGarrell. See St.1956, c. 665, §§ 2 et seq., St.1993, c. 461, §§ 2 et seq. Following a bench trial in Superior Court, the judge ruled Sheppard did not have standing and dismissed her complaint. On appeal, she argues (1) the trial judge improperly concluded that she did not have standing; and (2) the variances granted were illegal.2
We summarize the trial judge's findings of fact and supplement where necessary from undisputed record evidence. Sheppard and McGarrell are abutting property owners in the South Boston section of Boston. Sheppard has owned a three-story building and lot at 916-918 East Broadway since 1982. Until 2001, she lived on the first floor and rented out the other two floors.3 Prior to moving in, Sheppard renovated the first floor to take advantage of light and air behind the house. The rear wall of her first-floor apartment is about twenty feet from the property line. The wall contains a window in the galley kitchen and a window in the living area. The rear wall also contains a door, which leads out to a deck, the edge of which is fourteen feet from the property line. In her back yard is a large tree.
McGarrell purchased the lot at 65 P Street in 1997. The side of his property spans Sheppard's backyard. McGarrell's lot is twenty-six feet wide and one hundred feet deep. When he purchased it, it contained a small, dilapidated home, almost twenty-six feet wide and approximately thirty-nine feet deep. On the side of the house closest to Sheppard's property, there had been an ell that had extended all the way to the property line but ended before it reached Sheppard's lot.4
In 1997, McGarrell applied for a permit to gut and rebuild the existing house. Once construction began, however, contractors discovered that the existing supporting beams and concrete foundation would not support a rehabilitated structure. McGarrell then began building a new, larger house without applying for a new permit. He was ordered to halt construction because the structure violated zoning codes. McGarrell subsequently was denied a new permit. He appealed and eventually was granted variances from the zoning board of appeal of Boston (board) regarding lot size, lot width, and front and side yard requirements. Sheppard appealed to the Superior Court, but at some point thereafter, the parties agreed to the dismissal of Sheppard's complaint.
In August of 1998, McGarrell applied for a new permit and it was denied. On appeal to the board, McGarrell again obtained the required variances. Sheppard then appealed to the Superior Court.5 Notwithstanding Sheppard's appeal, McGarrell completed construction in the spring of 1999.6
After a bench trial, the judge found, in relevant part, the following facts regarding the new structure:
At trial, Sheppard claimed that the size and the location of the new structure deprived her of light, decreased the rental and property value of her building, increased the risk of fire, decreased her privacy, and increased noise. The judge addressed each of these claims separately and found them all to be without merit. On the issue of light deprivation the judge found that the "amount of sunlight, direct and reflective, entering [Sheppard's] first floor apartment ... is significant and, thus, not so minimal as to constitute a substantial deprivation of light." The judge further found that Sheppard "cannot blame" McGarrell for the fact that Sheppard's neighborhood already was densely populated, noting that her own upper-floor decks and large tree blocked the light as well. The judge also relied on the tree's thick foliage and the already limited privacy available in a densely populated area to reject the privacy argument. In regard to risk of fire, the judge found the new structure safer than the dilapidated structure, despite its closer proximity. Finally, the judge found "speculative and conclusory" the testimony of Sheppard, who was a real estate broker, regarding any decrease in the value of her property.
Discussion. For Shepherd to have standing under G.L. c. 40A, § 17, or under § 11 of the enabling act, she must qualify as a "person aggrieved" by a zoning board's decision. "A `person aggrieved' is one who suffers a nonspeculative `infringement of [her] legal rights.'" Dwyer v. Gallo, 73 Mass.App.Ct. 292, 295, 897 N.E.2d 612 (2008), quoting from Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369 (1996). As an abutter, Sheppard was entitled to a presumption of standing. See Dwyer, supra. That presumption, however, was rebutted by McGarrell when he challenged Sheppard's status as an aggrieved person and offered evidence in support of his challenge. Ibid. Sheppard therefore was required to "show that the zoning relief granted adversely affected [her] directly and that [her] injury is related to a cognizable interest protected by the applicable zoning law." Ibid. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 554, 709 N.E.2d 815 (1999) ( ). Indeed, this review of standing "does not require that the factfinder ultimately find a plaintiff's allegations meritorious." Marashlian, supra. For the following reasons, we conclude that Sheppard met this burden and the trial judge's conclusion to the contrary was clearly erroneous.
An abutter has a well-recognized legal interest in "preventing further construction in a district in which the existing development is already more dense than the applicable zoning regulations allow."7 Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 31, 849 N.E.2d 197 (2006), quoting from Tsagronis v. Board of Appeals of Wareham, 33 Mass.App.Ct. 55, 59, 596 N.E.2d 369 (1992), S.C., 415 Mass. 329, 613 N.E.2d 893 (1993). Dwyer, supra at 296, 897 N.E.2d 612. As the trial judge observed, Sheppard's neighborhood was already dense and overcrowded.8
Nevertheless, the variances granted to McGarrell allowed him to increase the length of his house so that the deck extended behind Sheppard's house and blocked her rear living room window. Moreover, McGarrell was permitted to build this extension right along the property line he shares with Sheppard, in violation of multiple zoning requirements. As a result, Sheppard's house, already subject to overcrowding by the buildings flanking its sides, now has another three-story structure fourteen feet behind it, blocking its last relatively open corridor.
This injury relates to density interests protected by applicable zoning laws. As provided in art. 1, the stated purposes of Boston's zoning code include "prevent[ing] overcrowding of land; ... lessen[ing] congestion in the streets; [avoiding]...
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