The Massachusetts Appeals Court upheld the zoning board’s denial a post-construction variance, where a building permit was issued for renovations in an historic district that reflected no increase in the height of the roof line of the building, but when built, the roof line actually exceeding the preexisting roof by at least four feet.    

In reviewing the criteria for a variance in Massachusetts, the Court noted that the factors are conjunctive, meaning that the applicant must meet all of the stated criteria in order to qualify for the variance. The applicant admitted that they could not meet all of the criteria, but argued that it should have been given the variance on equitable principles because in their view it was a trivial or de minimus zoning infraction (the height increase was 6.6% of the total height of the building), the violation was made innocently in reliance on a qualified architect, they expended a significant sum on money ($300,000) in the renovation and removal would be at significant expense (also $300,000), and the harm to abutters is, in their view, minimal since it is already one of the shorter buildings in the neighborhood, and because one neighbor testified that he does not oppose the structure as built.   

The Court upheld the denial, finding that in this case there was a well established interest in preserving the architectural integrity of the historic neighborhood, the board was consistent with their previous decisions for similar requests which have been denied, and the height differential was not de minimus. The Court concluded, “While the financial expenditures Steamboat incurred and may incur in the future are regrettable, they do not supersede the board’s interest in preserving the architectural integrity of the neighborhood.”      

Steamboat Realty, LLC v. Zoning Board of Appeal of Boston, 2007 WL 3133362 (Mass. App. Ct. 10/30/07).