Agenda - Planning Commission - 06/04/2009

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,.~ ( ) () '--.../ I. I Zoning Bulletin May 10, 20091 Volume 3 I NO.9 Notwithstanding Sheppard's appeal, McGarrell completed construc- tion of llls new hpuse. The new house was 26 feet wide by 51 feet deep. The completed house was three stories high, with decks on the street lev- el and top floor. It was within 14 feet from Sheppard's back porch and 20 feet from her rear door and windows. At trial, Sheppard claimed that the size and location of McGarrell's new house: deprived her of light; decreased the rental and property value of her building; increased the risk of fire; decreased her privacy; and in- creased noise. The trial court dismissed the action, finding Sheppard lacked standing (i.e., the legal fight) to challenge the grant of variances to McGarrell. Sheppard appealed. DECISION: Vacated and remanded. (j The Appeals Court of Massachusetts held that Sheppard had standing to challenge the variances that were issued to McGarrell. The court explained that in order for Sheppard to have standing in this matter, she had to be a "person aggrieved" by the ZBA's decision. A person would be "aggrieved" if their legal rights wer~ clearly infringed. Thus, for Sheppard to have standing, she had to show that: (1)the vari- ances granted to McGarrell affected her directly; and (2) her injury was related to "a cognizable interest" protected by the city's zoning la-w' The court said that "[a]n abutter has a welh:ecognized legal interest in 'preventing further construction in a district in which the e.xisting de- velopment- is already more dense than the applicable zo~g regulations . allow. '" The court found that the variances granted to McGarrell di" recdy affected Sheppard because: her neighborhood was already dense and overcrowded; the variances granted to McGarrell allowed him to increase the length of his house so that the deck extended behind Shep- pard's house and blocked her rearlivirig room window; the variances al- . lowed McGarrell to build that extension right along the property line he shared "With Sheppard, in violation of multiple zoning requirements; and his new house blocked Sheppard's "last relatively open corridor." The court found those injuries to Sheppard related to density interests protected by applicable zoning laws. The purposes of the city's zoning code included: "prevent[irig] overcrowding of land;... lessen[ing] conges- tion in the streets; [avoiding] undue concentration of population; [and providing] adequate light and air." Lot size, lot width; and side yard requirements were intended to further those purposes. The court said that "the crowding of an abutter's residential property by violation of the density provisions of the zoning by-law w[ould] generally" qualify as harm sufficient for the abutter to have standing to maintain a zoning ap- peal. Sheppard's case was no exception said'the court. The court concluded that: (1) the variances granted to McGarrell "further exacerbated the density problems the [city's] zoning regula- @ 2009 Thomson Reuters 9 I J 79