Steamboat Realty, LLC v. Zoning Board of Appeal

875 N.E.2d 521, 70 Mass. App. Ct. 601
CourtMassachusetts Appeals Court
DecidedOctober 30, 2007
DocketNo. 06-P-1544
StatusPublished
Cited by7 cases

This text of 875 N.E.2d 521 (Steamboat Realty, LLC v. Zoning Board of Appeal) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steamboat Realty, LLC v. Zoning Board of Appeal, 875 N.E.2d 521, 70 Mass. App. Ct. 601 (Mass. Ct. App. 2007).

Opinion

Brown, J.

Steamboat Realty, LLC, and its principal, James Rudolph (collectively, Steamboat) appeal from a decision of the Superior Court affirming the zoning board of appeal of Boston’s (board’s) denial of an application for a height variance for renovations made to the penthouse unit at 194 Beacon Street.3 We affirm.

[602]*602A building permit was issued for the renovations based on plans that reflected no increase in the height of the roof line of the building. However, the judge, after a two-day bench trial, found that as built, the roof exceeds the preexisting height by at least four feet. Steamboat contends the actual increase is either zero or less than four feet four inches.4 When the Back Bay Architectural Commission made Steamboat aware of the height increase by issuing a notice of violation, Steamboat sought a variance for the “as built” plans. The board denied the variance. On appeal to the Superior Court, the judge affirmed the board’s decision.

The standard of review we apply to a Superior Court decision reviewing a decision of a board of appeals on a variance is well settled. “We must accept the judge’s findings of fact unless they are clearly erroneous, . . . but we are independently to ‘deter-minen what decision the law requires upon the facts found.’ ” 39 Joy St. Condominium Assn. v. Board of Appeal of Boston, 426 Mass. 485, 488 (1998) (citations omitted). In making this determination, we are cognizant that “[n]o person has a legal right to a variance and they are to be granted sparingly.” Id. at 489, quoting from Broderick v. Board of Appeal of Boston, 361 Mass. 472, 479 (1972). “If variances (or exceptions, unless bestowed fairly in accordance with ascertainable standards properly stated in the zoning provisions) are granted with undue frequency or liberality, and without strict compliance with the prescribed [603]*603statutory criteria, zoning regulations can become a matter of administrative whim.” Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 62 (1971).

The criteria applicable to Steamboat’s application for a variance, noted in the margin,5 are conjunctive; Steamboat must meet all of the criteria in order to qualify for a variance. See 39 Joy St. Condominium Assn. v. Board of Appeal of Boston, 426 Mass. at 489; McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 931 (2004). Steamboat essentially concedes that it does not meet all of the criteria. It, for example, has identified no structural anomalies particular to the building that would distinguish it from neighboring buildings, particularly its adjacent mirror image, nor has it shown that a variance is necessary for the reasonable use of the land. Further, “an inability to maximize the theoretical potential of a parcel of land is not a hardship within the meaning of the zoning law.” Id. at 932. Indeed, “ [financial hardship to the owner alone is not sufficient to establish ‘substantial hardship’ and thereby justify a variance.” [604]*60439 Joy Street Condominium Assn. v. Board of Appeal of Boston, 426 Mass. at 490, quoting from McNeely v. Board of Appeal of Boston, 358 Mass. 94, 101 (1970). Where an applicant fails to meet the codified requirements for a variance, “it [is] not enough to show merely that the [applicant] ha[s] expended a substantial amount of money ... or to show that there [are] other nonconforming buildings in the area, because neither fact constitute^] a condition especially affecting the lot in question but not affecting that zoning district generally.” Warren v. Zoning Bd. of Appeals of Amherst, 383 Mass. 1, 12 (1981).6 See Raia v. Board of Appeals of N. Reading, 4 Mass. App. Ct. 318, 321-322 (1976).

Steamboat’s principal argument on appeal is that even assuming a height differential of four feet, four inches (see note 4, supra), and notwithstanding that it does not meet the criteria for a variance, a variance should have been granted on equitable principles that disfavor enforcing trivial or de minimis zoning infractions, particularly where the violation was made innocently, the cost to the applicant is great, and the harm to abutters is minimal. Steamboat argues that, pursuant to the teachings of Capodilupo v. Vozzella, 46 Mass. App. Ct. 224, 227 (1999), “a balancing of equities after due consideration of all pertinent facts” is necessary to determine whether this is one of the rare or exceptional cases where strict enforcement of the zoning code (here, by ordering restoration of the roof line) should be considered oppressive, inequitable, and illegal.

In support of its argument, Steamboat contends that it proceeded in good faith, innocently relying on the advice of a qualified architect, expended close to $300,000 to complete the renovations, and would have to spend another $300,000 to restore the roof line. Moreover, Steamboat points out that the building is one of the shorter buildings in the neighborhood notwithstanding the fact that, even before the renovation, it exceeded the current height limitation and therefore constituted a prior [605]*605nonconforming use. Steamboat notes that the front roof line is unaltered; the alteration (visible from the back of the building) cannot be seen by a person standing at street level on Beacon Street. Steamboat argues further that at most, the height increase constitutes 6.6 percent of the total height of the building and should be deemed “de minimis.” Finally, Steamboat notes the parties’ stipulation that Steamboat’s most immediate neighbor testified that he does not oppose the plan as built.

There is no order before us requiring Steamboat to return the roof to its previous condition. In the absence of such an order, an argument that principles of equity militate against literal enforcement of the zoning code strikes us as premature. However, in its decision the board concluded that Steamboat had failed to show that “this is a specific case where a literal enforcement of the [Zoning] Act involves a substantial hardship upon the Appellant as well as upon the premises, [or that] the described relief may be granted without substantial detriment to the public good and without substantially derogating from the intent and purpose of the Zoning Act.” The parties have briefed the issue, and to the extent restoration of the original roof line is implicit in the variance decision, we exercise our discretion to reach the issue.

There is no merit to Steamboat’s argument that the judge failed to balance the equities. In response to Steamboat’s argument that equitable principles militate in favor of granting a variance, the judge found that the property at issue is located in the Back Bay section of Boston, where there is great concern in the neighborhood about attempts to build on top of existing structures. The judge noted that the board has consistently taken a tough stance on requests for variances that increase building height. Indeed, the evidence suggests that the board has refused to grant any height variances in the Back Bay neighborhood in the past ten or more years in order to “maintain the architectural integrity of the neighborhood as manifested in original, unbroken roof and cornice lines.” This is true even where applicants came in with “clean hands” and claims of personal hardship.

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Bluebook (online)
875 N.E.2d 521, 70 Mass. App. Ct. 601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steamboat-realty-llc-v-zoning-board-of-appeal-massappct-2007.