Agenda - Planning Commission - 12/07/2006

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Page 8 - October 25, 2006 Z.B. Rotwein claimed that the variance was needed because of the unique shape of her property. She also stated that she needed to. add the garage for her own safety; she was 84 years old, not very mobile, and felt unsafe entering her house from the driveway. Importantly, the garage was not attached to the house, but rather connected to it by an areaway that led to the basement. The zoning board of appeals held a hearing to decide on the variance. Rotwein's architect te~tified that the narrow shape and "deep curvature" at the front of the house limited the placement of the garage. The board made some suggestions that would not require a variance, but the architect did not agree with any of the alternatives. IDtimately, the board denied the variance. The board stated that, while the property was narrow, Rotwein had failed to show how th~t condition resulted in a practical difficulty to meet the setback requirements. In its decision, the board suggested that Rotwein created the hardship of meeting the setback require- ment by: choosing not to attach the garage to the house, building a two-car garage instead of a single-car garage, and opting against simply enclosing the . existing carport. . Rotwem asked to the court to review of the board's decision. The court reversed the order of the board and instructed it to rehear the VaTIarice applica- tion, taking into consideratIon additional evidence. The board appealed that decision to court. DECISION: Reversed; board's decision affirmed. Generally, courts did not disturb :the findings of an administrative z~nirig board unless there was a clear error of law or abuse of discretion. Here, the lower court found that the board had not considered the uniqueness of Rotwein's propert)rin reaching its decision, so the deriial was overtUrned. However, the appeals court agreed with the board's fmding that Rotwein had not demon- strated any practical difficulty - which, alone, was enough to support the denial of the variance request. An applicant for a variance had to do more than show that a proposed building would be suitable or would cause no harm despite violating an ordi- nance. The applicant had to prove that there was something peculiar to his .or her property that made adhering to the ordinance an unusual hardship. Addi- tionally, the hardship could not be the result of the applicant's own actions. Here, the location of the garage was found to be more a matter of conve- nience rather than a result of a hardship. The board had found that any hard- ship Rotwein did demonstrate was the result of multiple improvements that were made to the property - including a pool, a tennis court, and two patios .:..- which limited the available space to build a garage. Therefore, her hardship was self-created and did not justify a variance. Further, there were viable alternative locations for a garage on her property; thus, a variance was not the minimal action of the board necessary for the structure to be built. The appeals cou.'1 affIrmed the board's decision to deny the variance. ) @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 64