Section Review

Variances in the Crowded City: A Reaffirmation of Abutters’ Rights in McGee v. Board of Appeal

Michael W. Wiggins is a member of Weston, Patrick, Willard and Redding, P.A., where he concentrates in business and non-profit, real estate and zoning law. He is a former vice chair of the Cambridge Board of Zoning Appeal.
Residential zoning regulations in downtown Boston neighborhoods allow dense development. For example, in the North End Neighborhood District Regulations, Article 54 of the Boston Zoning Code, there are no front yard or side yard setback requirements, and floor area ratios (which compare total square feet of habitable space to the area of the lot) may reach 3:1. But given the rapid escalation of housing prices in recent years, pressure mounts to maximize the potential of a lot by seeking variances to build well beyond what the already generous zoning regulations allow.

This, in turn, raises questions about the rights of urban abutters. Should they carry a heavier burden than suburbanites to establish standing to oppose overbuilding? And when standing is established, does the applicant have a lighter burden than his country counterpart to prove the requisite hardship to support a variance?In McGee, et al. v. Board of Appeal, et al., 62 Mass. App. Ct. 930 (2005), the Appeals Court answered no to both questions, upholding the right of immediate abutters to challenge a large addition to an already overbuilt three-family building. In so doing, it lent support to emerging bases for standing, including loss of view, open space and privacy, further refined the degree of impact upon the abutter’s interests that must be shown, and reconfirmed the strict fact-finding standards that a zoning board must meet before it can grant a variance. This article will review McGee’s contribution to the law of standing and standards for a variance, and discuss how the decision making process of the Board of Appeal and other zoning boards might be improved.

 

The Criteria for Standing to Appeal

Under Section 11 of St. 1956, c. 665 (“the Enabling Act”), persons who appeal to the Superior Court from a decision of the Boston Board of Appeal to grant a variance must establish that they have standing as “aggrieved persons” before the court has jurisdiction to review the merits of the variance. Due to the close similarity in language of the enabling act and the state zoning statute, G.L. c. 40A, cases decided under the state statute are suitable for review by the Board of Appeal under the Boston Zoning Code. Sherrill House, Inc. v. Board of Appeal of Boston, 19 Mass. App. Ct. 274, 275 (1985).

In determining which parties qualify for judicial review, the term “ ‘aggrieved person’ … should not be read narrowly.” Marashlian v. Zoning Board of Appeals of Newburyport, 429 Mass. 719, 721 (1996). Though an immediate abutter enjoys an automatic presumption of standing, once standing is challenged with substantive evidence, the issue of standing is to be decided on all the evidence, without benefit to the plaintiff from the presumption. The appellant may not prove standing on the basis of mere “speculation” of harm, but rather must offer evidence tending to establish “by direct facts — that his injury is special and different from the concerns of the rest of the community.” Barvenik v. Aldermen of Newton, 33 Mass. App. Ct. 129, 131 (1992). He or she must offer evidence of “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Board of Cambridge, 27 Mass. App. Ct. 491, 493(1989). But it is not the plaintiff’s burden to conclusively prove, on a threshold basis, a certain minimum degree of harm to his or her property interest. He or she must present only “specific facts to establish perceptible harm.”Marashlian, supra, 421 Mass. at 724. The inquiry then shifts to whether the standards for a variance have been met.

The types of harm to private interests that may constitute an adequate basis for standing include the impact of overcrowding of land, as articulated in Federman v. Board of Appeals of Marblehead, 35 Mass. App. Ct. 727, 732 (1994), and the loss of air and light, as recited in Bedford v. Trustees of Boston University, 25 Mass. App. Ct. 372, 377 n.4 (1977). Whether loss of view qualifies as a protected interest, in the absence of either the specific mention of views as a protected interest in the applicable zoning statute or the demonstration of a measurable impact upon the value of the abutter’s property, has been subject to debate. Where the loss claimed is of a particular view, some evidence of impact upon value may arguably be required, as articulated in Federman and in Tsagronis v. Board of Appeals of Wareham, 415 Mass. 329, 330 n. 4 (1993). But where proposed construction on an undersized lot would virtually obliterate the abutter’s view in a general direction, the Appeals Court noted obvious prejudice to the abutter’s legal interest without inquiring as to the precise impact on value, in DeCicco v. Berwick, 27 Mass. App. Ct. 312, 315 (1989).

Open space and privacy are not specifically mentioned as protected interests in the Boston Zoning Code or other zoning statutes, and yet they are both arguably inherent in the stated objective of the Boston Zoning Code (Article I, Section 1-2 and Article 54, Section 54-1, the North End Neighborhood District Regulations) and other zoning statutes to “avoid overcrowding of land.”Recently, the Appeals Court found that an abutter who objected to the construction of a second house in the rear yard of his neighbor’s property, close to the property line, had articulated a legitimate concern regarding loss of privacy in his own back yard. Bertrand v. Board of Appeals of Bourne, 58 Mass. App. Ct. 912, 912 (2003).

 

The Facts In McGee

The plaintiffs, Mary McGee and Thomas Schiavoni, appealed to the Suffolk Superior Court from a Board of Appeal decision that granted to their immediate abutter, William Verdi, a variance to increase the size of his townhouse, which already enjoyed more than the maximum floor area ratio of 3:1, by removing a half floor on the fourth level and replacing it with two full stories. The addition would be located directly behind the fourth floor rear room window of the McGee/Schiavoni residence. It would include a rear deck, to be located only a foot from the window and a solid wall about five feet away. The McGee/Schiavonis claimed that the addition would block air, light and views and compromise their privacy. At trial they presented evidence that the current fourth floor of the Verdi building and its rear deck were so close to their third floor as to cut off views, light and air to the southwest and so adversely affected their privacy in their third floor rear room that they were effectively dissuaded from raising the shade or opening the window. The addition of another full floor promised to replicate this condition at the next level. They introduced photos of the view from the fourth window and diagrams juxtaposing the proposed addition with their fourth floor to demonstrate how it would affect them. Mr. Verdi responded with evidence that the McGee/Schiavonis enjoyed extensive views in other directions, argued that the plaintiffs had failed to prove any measurable loss of air, and could show only a limited loss of direct sunlight from the addition. The court took a view and confirmed during oral argument how “incredibly close” the two properties were, but then ruled that the McGee/Schiavonis did not have standing, opining that they could not maintain standing based upon loss of view because they had presented no evidence about loss of value due to the restricted view, had no right to complain about loss of open space, did not “sufficiently show” that the addition would deprive them of “adequate” air or light, and could not complain about increased density because no additional dwellings were being constructed on Mr. Verdi’s land. The court then went on to rule that Mr. Verdi had met the statutory criteria for a variance, stating simply that the conditions unique to the property included the lot’s “odd shape, limited land area, location and [building’s] style of construction,” but did not discuss how any such conditions constituted a hardship or deprived Mr. Verdi of the reasonable use of the land.

 

Decision As To Standing

The Appeals Court summarily reversed the trial court’s finding as to standing. It noted the close proximity of the buildings, and that due partly to the different grades of the buildings, the McGee/Schiavonis’ fourth floor currently provided them with light, ventilation and “something of a view.” It found that the addition of a fifth floor so close to their own fourth floor would “result…in a marked reduction of their light, air, view, and privacy.” It then opined that the impact of the proposed addition, “rendering the fourth floor a significantly less attractive place to live, is a sufficiently perceptible harm, personal to McGee and Schiavoni, to qualify them as aggrieved persons.” It referred to settled law for the proposition that diminishment of light, air and views may be sufficient to provide aggrieved person status, citing Federman for the proposition that density provisions may indeed protect views of a particular property. Though the opinion is brief, it validates several important underpinnings for standing.

 

Density

The Appeals Court implicitly rejected the notion of the trial court that an increase in density could have no adverse impact on the abutters unless it also resulted in additional dwellings. The overcrowding of land (an explicitly protected interest in the Zoning Code and the North End District Zoning Regulations) that the gross increase to the already excessive floor area ratio represented, independently of whether additional dwellings were being added, had a palpable effect upon light, air and views, since it would effectively inhibit the McGee/Schiavonis from freely using their rear window.

 

Views

The Appeals Court was apparently not troubled by the lack of any evidence as to how much value the McGee/Schiavoni residence might lose as a result of the addition’s effect upon what it called “something of a view,” nor did it appear to require that a view has to be of unusually high caliber to be worthy of concern sufficient to afford standing. The inhibiting effect of the addition, to be located only a foot away, upon the plaintiffs’ personal use of the window was so obvious that appraisal testimony about the hypothetical loss of value from curtailment of the view out the window would have been superfluous.

 

Air and Light

Whereas the trial court had found the McGee/Schiavonis did not “sufficiently show” loss of adequate air (evidently having been persuaded by Mr. Verdi’s argument at trial that the plaintiffs had failed to produce any calculation of the prospective loss of a specific number of air changes per hour) the Appeals Court imposed no such requirement. It also dismissed the holding that they had not proven loss of adequate sunlight. The close proximity of the buildings was apparently sufficient, ipso facto, to persuade the Court that precise measurements were not required to assess the impact upon light and air. To have held otherwise would be to subject the McGee/Schiavonis, and presumably other aggrieved parties in similar future cases, to an unnecessary and unfair burden of producing expert testimony as to the precise impact of gross dimensional violations upon light and air.

 

Privacy and Open Space

The Appeals Court’s deliberate mention of the reduction of privacy as a legitimate concern, echoing its language in Bertrand, is significant. The filling in of open space in a rear yard can affect the abutters and others in close proximity in a manner distinct from the effect upon the neighborhood at large, inevitably leading to a loss of privacy since it brings the buildings so much closer than they already are. City dwellers must live with a dense floor area ratio, but that hardly means that they can be forced to live with the further congestion, and concomitant loss of privacy, that exceeding such a ratio would entail. The rear yard set back requirements of the Zoning Code exist for a reason, affording valuable “breathing space,” not provided at the front or sides, that cannot lightly be traded away at the abutters’ expense. While the opinion does not explicitly mention preservation of open space as a source of aggrieved person status, such a consideration is embedded in the explicit purpose of the Zoning Code to prevent “overcrowding of land.”

 

The Merits of the Variance

In most, though not all, variance appeals, the debate centers on the issue of standing, since the merits of the board of appeal’s decision do not have to be addressed if standing is found lacking. When standing is upheld, the court must examine the factual underpinnings of the board’s decision to grant the variance. The enabling act, § 9, permits variances only“where, owing to conditions especially affecting such parcel or such building, but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of such zoning regulation would involve substantial hardship to the appellant, and where desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent and purpose of such zoning regulation….” The Boston Zoning Code supplements the enabling act by requiring specific findings, including:

- that, for reason 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;

- that the granting of the variance will be in harmony with the general purpose and intent of this code, and will not be injurious to the neighborhood or otherwise detrimental to the public welfare;

- that there are special circumstances or conditions … applying to the land or structure for which the variance is sought…[,] which circumstances or conditions are peculiar to such land or structure but not the neighborhood, and that said circumstances or conditions are such that the application of the provisions of this code would deprive the appellant of the reasonable use of such land or structure. [Emphasis supplied.]

As in cases interpreting G.L. chapter 40A, to justify its grant of a variance from the provisions of the Boston Zoning Code, the Board must make specific findings of fact that there are specific conditions at the site, such as the shape of the lot, the nature of the soil, the topography or slope, that uniquely affect it and not the zoning district, and that literal enforcement of the code requirements would work a substantial hardship by depriving the owner of the reasonable use of the land. Simply enumerating site conditions is not sufficient where the Board does not tie them to actual detriment.

When it turned to the merits of the variance, the Appeals Court made short work of the Board’s findings and the trial court’s determination that such findings were sufficient to uphold the variance. The Board had cited the shallowness, unusual shape and slope and small size of the lot as elements constituting a “hardship” unique to the locus. While shape of a lot may in some cases work a hardship where it precludes the full buildout of the lot to the maximum allowable floor area ratio without violation of certain setbacks, the Court found that shape (presumably including depth, though it was not explicitly mentioned) was irrelevant here, inasmuch as the building already enjoyed more than the allowable floor area ratio. Similarly, the Appeals Court found the slope of the lot to be irrelevant, since it didn’t prevent the full buildout of the existing building above the maximum floor area ratio. The size of the lot was too small to support the proposed addition, but the Appeals Court cited a plethora of cases holding that size alone can never form the basis of a hardship; otherwise the dimensional zoning regulations would be of no effect. Finally, the Appeals Court observed that simply because compliance with the dimensional rules may prevent the owner from realizing the “maximum potential” of the lot, that cannot alone can never constitute a hardship within the meaning of the zoning law.

 

How To Improve Statutory
Findings After McGee

Since the decision in McGee, the Suffolk Superior Court, Sikora, J., has had occasion to consider, and lament, another Board of Appeal variance decision in which the Board merely parroted the statutory criteria for a variance without causally connecting the site conditions to an actual statutory hardship. In Van Buren v. South Boston New Housing, LLC, Suffolk Superior Court No. 02-5467-A, 2005 WL 332815, the Board had granted a variance from eight different dimensional and off-street parking requirements in order to enable the owner, South Boston New Housing, LLC to build a house on a vacant lot next to the appellant. After finding, upon cross-motions for summary judgment, that the appellant had standing on a number of grounds, including loss of privacy, views, loss of light and air, increased noise and reduced market value, the court summarily reversed the Board on the merits of the variance decision, and in doing so harshly criticized the Board for having made no findings of fact whatever that could conceivably justify its conclusion that conditions peculiar to the site created a hardship. Simply put, the lot was not large enough for the size of the building that the owner proposed to place on it. The court cited the consistent failure of the Board of Appeal over the last 75 years, ever since the Supreme Judicial Court’s explicit instructions in Prusik v. Board of Appeal, 262 Mass. 451, 458 (1928), to ground its decisions upon specific findings of fact, and suggested that in the future the Board should engage the assistance of the city attorneys “at the stage of original variance decision” [italics supplied by the Court] rather than after the commencement of litigation. If this is a recommendation to reinforce the filtering process at the hearing itself, rather than while the variance decision is being written, it is most welcome. Too often, when extensive support is registered for a variance from a variety of sources, including community and interest groups, the neighborhood at large and politicians, boards of appeal are sorely tempted to skate over the statutory fact finding requirements and vote the project through upon a general notion of achieving overall public good, meanwhile ignoring the explicit requirement of the zoning law that variances be granted sparingly and only where specific site conditions are proven to prevent the reasonable use of the land. Requiring a board to perform its gatekeeping function, regardless of the level of support or opposition, by strictly following the statutory fact finding process, would not only prevent the piecemeal erosion of the zoning code that occurs when it is shot through with ad hoc, inconsistent exceptions. It would also avoid the wasteful expenditure of time, money and judicial resources, cited by the Court in Van Buren, that occurs when a groundless variance decision has to be appealed and litigated in the courts. The litigation in McGee took over five years to complete. Surely all the parties, as well as the courts, would have been better served had the Board shouldered at the outset the rigorous analysis of the facts relating to hardship that the law requires.

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