Zoning Board of Appeals: trying to square a garage “triangle”

The Zoning Appeals Board held a hearing on Thursday, August 14, for the “triangle” zoning case on High Street Hill. Owners of a house on Upland Road, opposite Philbrick Square, applied to restructure a garage in back so as to use an entrance from Walnut Place, a narrow private way, instead of a long driveway from Upland Road. Assigned to the hearing were the board’s chair Jesse Geller, joined by Mark Zuroff and Avi Liss–all lawyers.

Issues: The case involves a proposed garage entrance on a “triangle” created by a flared-out curve of Walnut Place. The twelve owners of houses on Walnut Place oppose the plan, saying it would become a “blind driveway” and would be unreasonably hazardous. What might have been a quiet dispute turned into fireworks, with two of the town’s most experienced property lawyers representing Upland Road applicants for the plan and Walnut Place opponents of it.

A current side of the garage would not ordinarily be used for an entrance, according to Brookline’s zoning bylaw. The outside of the Walnut Place curve flares out along lot lines, one parallel to the side of the garage and perhaps a foot from it. A garage entrance has to be at least 20 feet from a “street.” [Table 5.01, note 1] A “street” means “a public or private way.” [Section 2.21] However, since the Building Department did not cite those issues when reviewing the plan, the Appeals panel was not going to consider them.

The Appeals panel also declined to review an objection from owners of Walnut Place houses that the Upland Road owners have no right of vehicle access to and from Walnut Place. Accepting advice from Brookline’s town counsel and from the Planning Board, Mr. Geller called that a “property dispute” to be settled among the parties or in a court of law.

In favor: Scott Gladstone, a Brookline-based lawyer and a Precinct 16 town meeting member, represented the Upland Road applicants for the garage plan. He said the current garage had been built about 1927, after Brookline enacted zoning but before it had today’s dimensional requirements. He then tried to embroider that bit of history with arguments over access to Walnut Place.

Mr. Gladstone claimed there was a deed “with all rights of access to Walnut Place,” Mr. Geller would have none of that, calling it a “floodgates” type of argument: “the camel’s nose under the tent.” Members of the Appeals panel said they had no jurisdiction over deed rights.

The applicants were going out of their way to preserve historic appearance of the garage, Mr. Gladsone said. It is located in one of Brookline’s historic districts, but the Preservation Commission has found extra effort not required, because the side of the garage is not visible from Walnut St. or any other public way. Mr. Gladstone argued the effort was a “counterbalancing amenity,” helping justify a special zoning permit.

Opposed: Jeffrey Allen, also a Brookline-based lawyer and a former chair of the Board of Selectmen, represented Walnut Place owners in opposition. He argued the garage plan called for a “structure” on the Walnut Place “triangle”–namely, a driveway. Part of Walnut Place, now shared property, he said, would become a driveway for “personal use” of the applicants.

In Mr. Allen’s version of the hazard arguments, “Kids will be playing in someone’s driveway [instead of in the 'triangle' as it has been] used by the neighborhood for 40 [or more] years…Walnut Place is narrow; two cars can’t pass…there hasn’t been any safety analysis.” Mr. Allen then invoked several sections of state law and of the Brookline zoning bylaw.

He made a complex claim that the plan would turn the back of the Upland Road property into a second “front yard,” where an “accessory structure” such as a garage is not allowed. Mr. Zuroff asked whether the “triangle” was part of Walnut Place. Mr. Allen replied that he had not “done the research.”

Other views: The Building Department may not have done it either. Michael Yanovitch, the chief building inspector, said that the plan did not call for any improvements on the “triangle,” so it had not been a consideration. The arguments about front yards were not relevant, he said, because the purpose of front yard requirements was to determine whether lots were buildable–not at issue in this case.

One of the Walnut Place owners spoke up, saying they cooperated in “landscaping along this road” and that the proposed garage access would involve “three-point turns [taking] all the ‘triangle’ and some of the way.” The plan, he said, treats Walnut Place owners “as second-class citizens…we’re entitled to equal protection.”

In rebuttal, Mr. Gladstone said there was no plan to alter the “triangle.” All its current uses could continue, he said, except perhaps “guest parking” that would block the proposed garage entrance. One reason for the plan was the difficulty of clearing snow on the current, 100-foot driveway. The applicants, he said, are “not the spring chickens they were.” One of them spoke from the audience, saying they would provide “another pair of hands” to help with Walnut Place in the future.

Reaching a decision: Concerning one of Mr. Allen’s issues, general requirements for a special permit in Section 9.05 of the zoning bylaw, Mr. Yanovitch said, “We don’t know.” Those matters involve judgment calls. The Zoning Board of Appeals functions as a local judicial body to make them. Members of the panel focused on two of the requirements:

• The use as developed will not adversely affect the neighborhood.
• There will be no nuisance or serious hazard to vehicles or pedestrians.

Panel members decided to continue the case. They plan to visit the site at 8 am on Thursday, September 4, then reconvene at 7 pm in Town Hall to discuss the issues and reach a decision.

– Beacon staff, Brookline, MA, August 15, 2014

Correction: Thanks to a reader for pointing out that Walnut Place owners were represented by Jeffrey Allen, not another well-known Mr. Allen who is also experienced with Brookline property cases.

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