Planning and Appeals boards: difficult zoning cases

The Zoning Board of Appeals met Thursday, October 2, and Tuesday, September 23, to consider two zoning cases that turned out difficult to resolve. The Planning Board had reviewed the cases September 18 and September 4. One appeal was allowed, and the other one was denied.

A two-family house in a single-family zone: Neighborhood residents protested a proposal to convert a single-family house at 227 Tappan St. to a two-family house. The house is in an SC-10 zone. That is mainly a single-family zone, but some such conversions are allowed, in the words of the zoning bylaw, “provided there is no external evidence of occupancy by more than one family.” [Section 4.07, Table of use regulations, use 2]

The SC type of zone was defined in 1962, during a major restructuring of Brookline zoning. It aimed to address some issues with maintaining large houses during an era of shrinking family sizes. The allowed conversions have been performed by rearranging interiors of large houses into two apartments, while maintaining a single front door and a single rear door. Mailboxes and doorbells have often been placed inside front vestibules.

Such a conversion might not be feasible with some houses. For example, there might not be enough space for a hallway or a stairwell wide enough to satisfy building codes. In such cases, conversion to a two-family is possible with a special permit from the Zoning Board of Appeals, when “external evidence of conversion is required to conform to other codes.” [Section 4.07, Table of use regulations, use 3]

The ordinary two-family houses that are allowed in T (two-family) zones are not allowed in SC (single-family and converted) zones. The zoning bylaw says, “No.” It does not allow them either “as of right” or with a special permit. [Section 4.07, Table of use regulations, use 4] The developer of 227 Tappan had applied for a special permit under use 3.

A house trying to eat a hill: At 227 Tappan, the developer proposed to attach a large new house onto the rear of an existing single-family house–thus creating an ordinary two-family house with two separate front and rear doors and a wide driveway, for separate parking. Section 4.07 of the zoning bylaw does not allow that in SC zones. That is use 4, for which the zoning bylaw says, “No.” The only available avenue for such a project would seem to be a zoning variance, under Chapter 40A of Massachusetts General Laws.

The lot at 227 Tappan extends up the steep south side of Addington Hill. Part of the hill was excavated and leveled when a row of six houses was built over 75 years ago. There is already a high retaining wall to keep the heavily forested part of the hill above the houses from eroding and collapsing. To add a large new house behind the current house, the developer needs to carve out more of the hill and build a still higher wall. Such an intrusion is part of what looks to have triggered strong neighborhood opposition.

Arguing for a right to build: Applicants in these cases were represented by Robert L. “Bobby” Allen, Jr., a Brookline-based lawyer, Precinct 16 town meeting member and former chair of the Board of Selectmen. He argued that the 227 Tappan St. developer could build what he wanted “as of right”–focusing attention on the floor area being proposed, which was indeed within zoning limits.

In his arguments, Mr. Allen largely ignored “external evidence of occupancy by more than one family.” Obviously there would be some. He presented no evidence that this was “required to conform to other codes,” when clearly it was not. The developer was not trying to fit two living spaces inside a structure built for one. Instead, he proposed to add a whole new structure onto the back of an existing one, thus transforming it into an ordinary two-family house. That is not allowed in an SC zone; the bylaw says, “No.”

The Planning Board, the Appeals board and the staffs of both the Planning and Building departments somehow let themselves be persuaded that Mr. Allen had a case–contrary to straightforward reading of the zoning bylaw. The Planning Board had objected for other reasons. According to board member Robert Cook, “It’s way too big.” Board chair Linda Hamlin said she didn’t “think it meets community standards.”

A group of about 30 neighbors opposing the project did not hire a lawyer to represent them, leaving them at a disadvantage. Like the Planning Board, they focused on the intrusions rather than on the zoning bylaw. The proposed house was too big, they said. The hillside would be threatened. Other houses might be flooded. The new driveway would be dangerous. After extended haggling among them, Appeals board members bought into Mr. Allen’s arguments, allowing a special permit and not considering whether the developer needed a variance.

Mending a fence: After a fence between two properties along Dudley St. was recently altered, neighbors on the other side objected. It was much too high, they said. A Brookline building inspector had checked it and agreed, measuring the maximum height as 8-1/2 feet. Brookline’s zoning limits fence height in side and rear yards to 7 feet–without a special permit because of noise, “detrimental impact” or safety.

The builders of the fence applied for a special permit, arguing “detrimental impact.” That didn’t clearly apply, because the only example offered in the bylaw is “when a property is bounded by active train tracks.” Representing the fence owners, Mr. Allen had not been able to convince the Planning Board, who accepted the building inspector’s measurement and did not find the conditions for a special permit.

Into swales: At the Appeals board, Mr. Allen explained that the applicants’ neighbors had removed a swath of vegetation between the properties, “eliminating privacy” of their patio and back yard. He said that the fence height was complicated by contours of the land, going over rises and into swales. On the applicant’s side, he said, the height was not more than 7 feet. He maintained that removal of vegetation on the neighbors’ side had lowered the grade there.

According to the applicants’ landscaper, attempts to grow a plant barrier failed because of dense shade. They then tried to temper “detrimental impact” from removing vegetation by adding height to an existing chain-link fence and weaving it with an artificial textile–a “shrub-like substance.” Close to the houses, fence height was 6 feet, he said. In other places, height was adjusted to maintain privacy of the applicants’ patio.

Natural grade: Responding to questions from board members, Mike Yanovitch, the chief building inspector, said fence height had to be measured from “natural grade.” The issue, he said, was the meaning of “natural grade.” Brookline’s zoning bylaw invokes “natural grade” in requirements for building heights, fence heights and underground structures but does not define the phrase. Mr. Yanovitch explained that the practice of the Building Department had been to measure fence heights from the low points of land on either side.

There are varying interpretations of “natural grade” in case law, but there is no reliable common definition. Attempts to interpret the phrase sometimes mention “undisturbed” elevation of land. In Brookline, however, as in most other places with extensive habitation and development, there is probably no substantial area of land unaltered by the hand of man, and there is no way to know elevations accurately before they were altered.

One of the neighbors who had complained to the Building Department spoke up, adamantly maintaining that the fence was too high. Measured from his side, he said, it rose to 10 feet. His landscaper told the board, “No vegetation was taken down that was healthy…we’re concerned about a 3-1/2-ft diameter sugar maple.”

The neighbor’s landscaper said he also had tried planting along the fence, in deep shade. “It’s hard, we’ve had plants die, we’ll keep doing it.” The extended fence, he said, “is not an amenity. It is not suitable, nor is it appropriate for this area; it’s a real intrusion…[a planted barrier] can’t be restored in short order.”

Appeals board members wrestled with the issues of measuring fence height. Mr Yanovitch said, “We’ve always taken the lowest unmodified grade,” but he conceded, “It’s almost a case-by-case basis.” They reviewed the general conditions for a special permit. Finally, board member Jonathan Book told the others, “I can make this very easy. It’s not an appropriate location”–one of the general conditions–”because it looms over the abutters’ yard.” The other board members accepted that argument, denying a special permit.

– Beacon staff, Brookline, MA, October 5, 2014

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