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Appeals Court Declines To Order The Tear Down Of A South Boston Home Despite Overturning Variances and Remands To Superior Court For Further Proceedings

After the recent publicity surrounding a court-ordered removal of a million-plus dollar home in Marblehead (for more on that story, click over to The Massachusetts Real Estate Blog), it would be easy to assume that courts would have no problem ordering the removal of a much smaller residence, especially one that was later determined to fall short of the requirements needed for the variances that authorized the home's construction in the first instance. But on March 7, 2012, despite the fact that it had overturned five variances that allowed such construction, the Massachusetts Appeals Court declined to order such relief as part of its remand.

In Sheppard v. Zoning Bd. of Appeals of Boston, 10-P-2070 (Mass. App. Ct. March 7, 2012), the Appeals Court determined that there was no lawful basis for the Boston Zoning Board of Appeals to have granted the five variances that led to the re-construction and expansion of a non-conforming residence that replaced the rundown house razed by the landowner (McGarrell). In its decision, the Appeals Court overturned the Superior Court decision that affirmed the ZBA's grant of the variances. Yet, despite a request by the petitioner/abutter to have the case remanded to Superior Court with an order that the house be razed, the Appeals Court declined to go that far, and recognized that such remedy may not be necessary in this instance.

The Appeals Court first noted that, in some instances, "tear down orders do not necessarily follow every determination of a zoning violation, and that a court may consider equitable factors and the potential availability of money damages as an appropriate alternative remedy." The Court thought it was significant that in McGarrell's situation, the Boston ZBA had consistently supported the construction of the new home, and was not the party seeking enforcement of the zoning code provisions. In the Court's view, this warranted a delay in deciding the most appropriate remedy in this case.

The Court went on to recognize that, in McGarrell's situation, another form of zoning relief may have been available to him in lieu of variances: rebuilding as of right under the Boston Zoning Code's provisions for expansions of pre-existing nonconforming structures (which the petitioner/abutter did not dispute). To the extent that such alternative relief could potentially give the landowner an opportunity to avoid tearing down his house, the Court was willing to make room for that possibility. Perhaps more importantly, however, was the Court's recognition that the landowner was not the one who initially sought the variance route; rather, that process was undertaken at the ZBA's insistence because it had earlier taken the position that the landowner could not invoke the relief allowed under the Boston Zoning Code provisions for expansion of pre-existing nonconforming structures where the structure had been razed beforehand (the Appeals Court did not address the merits of this position, but noted that cases decided under similar provisions of M.G.L. c. 40A, § 6, have allowed such construction). For all of these reasons, the Appeals Court viewed a tear down order as premature, and thus remanded the case for further discretion of the Superior Court as to whether a stay in proceedings is justified if or while the landowner explores alternative zoning relief at the local level.

If the landowner does seek zoning relief under the provisions that allow for the expansion/reconstruction of a pre-existing nonconforming use, it will be interesting to see how the ZBA applies the test for allowing such construction, especially considering that the house has now been a fixture in the neighborhood for thirteen (13) years since the spring of 1999. See Sheppard v. Zoning Bd. of Appeals of Boston, 74 Mass. App. Ct. 8 (2009) (overturning lower decision regarding plaintiff's standing and remanded for determination on merits of variances). And even though the Boston ZBA has supported the grant of variances in the instant case, a footnote in the case indicates that the Appeals Court applied a little pressure to the ZBA at oral argument to possibly change the dimensional requirements in an area where the majority of the lots are undersized; the ZBA acknowledged that that very issue is currently under review. As landowners in Boston will likely continue to seek reconstruction of older, outdated homes, some increased flexibility seems appropriate to accommodate the renovation of urban housing stocks. We will continue to follow the proceedings to see whether the landowner is able to keep his home or whether it ultimately must be torn down.

Written by Kristen M. Ploetz, Blog Editor

Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.

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