For the full decision: Sheppard v. Zoning Board of Appeal of Boston, 81 Mass. App. Ct. 394 (2012)
In Sheppard v. Zoning Board of Appeal of Boston, the Massachusetts Appeals Court reversed the decision of the lower court, ruling that the zoning board had improperly granted variances for the construction of a larger home on a lot in South Boston. The court focused on the failure of the property owner, Robert McGarrell, to establish that the variances he sought represented the “minimum variance” necessary to make reasonable use of his property.
Factual Background:
McGarrell owned a 2,600 square-foot lot in South Boston, which contained a dilapidated single-family home predating Boston’s zoning code. After purchasing the property with the intention of renovating it, McGarrell discovered that the house’s foundation was unsound, leading him to tear it down and seek to construct a new, larger house. The new house, however, would not comply with current zoning regulations, necessitating five variances for approval.
Despite initial objections from the city and neighboring property owner Alison Sheppard, McGarrell’s revised plans for a townhouse-style home were approved by the zoning board. Sheppard challenged the variances in court, arguing that the new structure would be larger and more intrusive than the original house, which McGarrell could have rebuilt as a preexisting nonconforming structure.
Legal Analysis and Court Reasoning:
Under Boston’s zoning code, variances are only permissible if three conditions are met, including that the variance granted is the minimum necessary to allow for reasonable use of the land. As the party requesting the variances, McGarrell bore the burden of proving that the new house was the minimum necessary to allow him to make reasonable use of the property.
The court ruled that McGarrell failed to meet this burden. He offered no evidence that building a house larger than the original structure was essential for reasonable use. The court found that, since McGarrell purchased the property with the intention of living in a house of the same size as the original one, this constituted a baseline for reasonable use of the land. Furthermore, there was no change in circumstances justifying why McGarrell could no longer use the property as he originally intended.
The court noted that McGarrell’s preference for a larger house was insufficient grounds for granting variances that exceeded the minimum necessary. The court also found that the judge had erred in concluding that the vertical expansion of the new house was permissible because it did not exceed the zoning code’s height limits. Since the lot itself was nonconforming, any increase in the size of the structure would exacerbate the zoning violations, thus requiring a variance.
The court emphasized that the variances granted by the board allowed McGarrell to build a larger house than necessary for reasonable use, which went beyond the “minimum variance” standard.
Conclusion:
The Appeals Court reversed the lower court’s decision and remanded the case for further proceedings. The court did not, however, order the demolition of the already-built house. Instead, it left open the possibility for McGarrell to seek alternative zoning relief under different provisions of the Boston zoning code. The decision underscores the stringent standards required for obtaining variances and highlights that personal preferences or minor expansions are insufficient grounds for exceeding the minimum variance needed for reasonable use.
