Facts: McGarrell
pruchased a 2,600 square-foot lot in South Boston that was 26 feet wide by 100
feet deep. When the property was purchased, there was a severely dilapidated
single family home that McGarrell intended to tear it down to the studs and
rebuild. After McGarrell obtained a building permit, he discovered that the
house was in worse shape than he had thought and that its foundation was
crumbling. As a result, the entire new home needed to be built from scratch.
Given the size and shape of the
lot, any new home would violate the existing dimensional zoning requirements,
but McGarrell was able to have restructured the old house through reliance on
the preexisting, nonconforming structure provision of the Boston zoning code.
Without obtaining additional approvals, McGarrell began building a new house
that was larger than the old one. Sheppard, the neighbor adjacent to McGarrell,
complained and the city of Boston enjoined the construction.
Procedural History: In order to build the new house from scratch,
McGarrell sought approval from the Boston inspectional services department
which denied such approval to build a larger house. Pursuant to the board's
instructions, McGarrell then applied for five variances to allow his proposed
house to be built. The board subsequently granted the requested variances for
his submitted plans but McGarrell eventually abandoned these plans and revised
them to respond to some of Sheppard's concerns. Under these revised plans, the
home was to be still larger than the old house, bringing it closer to Sheppard's
house. The board again granted McGarrell variances pursuant to the newest
plans, holding that the average height of the building was the most significant
area of the expansion and that McGarrell could increase the height of the
building as a matter of right under the code. Furthermore, the board concluded
that the expanded “footprint” of the house had a de minimis impact on the
surrounding neighborhood. Sheppard brought the current action. Following a
three day trial in 2004, the judge concluded that Sheppard lacked standing and
issued a judgment dismissing her appeal and the Suffolk County Appeals Court
reversed in 2009. McGarrell appealed, urging the court to revisit its decision
in the earlier appeal. McGarrell argued that strict compliance with the zoning
requirements would amount to unlawful discrimination, given his chronic
emphysema and need to construct a dwelling suitable to his medical needs.
Issue #1: Whether
the board erred in allowing the variances to McGarrell?
Yes. The court found that the
judge committed an error of law when he concluded that McGarrell could expand
the house vertically as a matter of right. An increase in the size of an
existing building could intensify the nonconformity, which is impermissible.
The court was guided by the Supreme Judicial Court's holding in Bjorklund v.
Zoning Bd. Of Appeals of Norwell, which stated that some changes, such as
construction of a dormer, or so slight that they “could not reasonably be found
to increase the nonconforming structure.” 450 Mass. 357, 360-61 (2008). In
light of that decision, the Court of Appeals held that it could not find the
increased height and mass of the building to be de minimis, especially even the
calculation of the increased size of the building most favorable to McGarrell appeared
to show an increase that was more than 10%.
Issue #2: Whether
denial of the variances would amount to unlawful discrimination?
No. The Federal Fair Housing Act
creates an affirmative duty on municipalities to afford their disabled citizens
reasonable accommodations necessary to afford such persons equal opportunity in
the use and enjoyment of their property. Although McGarrell had chronic
emphysema and that when he applied to the board for his variances, he asserted
that the requested relief would allow “a dwelling suitable to his medical
needs[,]” the board did not rely on his health issues in granting the
variances. The judge's silence as to McGarrell's alleged personal hardship was
consistent with the case law. The court held that McGarrell could not make out
a claim for discrimination based on the trial record because there was no
testimony that the house's extended footprint and increased height were
necessary to enable him to live there. Accordingly, McGarrell cannot make out a
claim that he was denied an equal opportunity to enjoy the housing of his
choice as a result of a disability.
Issue #3: Whether
the court should remand the case with the directive that the house be torn down
in light of McGarrell having failed to prove his entitlement to the variances?
No. The case law recognizes that
tear down orders do not necessarily follow every determination of a zoning
violation. Rather, the court may consider equitable factors and the potential
availability of money damages as an alternate remedy. In this case, the
original home on McGarrell's property was dilapidated, an eyesore, and a health
hazard. Furthermore, McGarrell could have rebuilt the old house as of right
under article 9, which allows for some expansion of the nonconforming structure.
Reversed and remanded.
(MW)
