Posted by: Patricia Salkin | August 3, 2020

MA Appeals Court Holds No Variances from Setback Requirements were Required

This post was authored by Matthew Loescher, Esq.

Defendants Robert and Pamela Irwin owned a residence and detached, one-car garage. Since the garage was dilapidated, the Irwins sought local approval to tear it down and to replace it with a new garage on the same footprint. Plaintiff Walter Donovan, whose property directly abutted the Irwins, spoke in support of the Irwins’ project at the hearing before the defendant zoning board of appeals (“ZBA”). The ZBA unanimously approved the project, issuing two special permits and two variances. Notwithstanding his initial support for the replacement of the garage, Donovan filed an action pursuant to G. L. c. 40A, § 17, challenging the ZBA’s approval. The Superior Court granted summary judgment in Donovan’s favor on the ground that the Irwins needed, in addition to the four approvals they had received, a variance with respect to the height of the proposed garage.

 The record reflected that the Irwins’ garage was not a single or two-family residence, but was a freestanding structure used for an accessory purpose. As such, Donovan argued that the garage therefore did not enjoy the extra layer of protection that the statute provided to single and two-family residences. Here, the city has adopted a zoning ordinance that explicitly extended to accessory structures the same extra level of protection that applied to the single and two-family residences that such structures served. The relevant zoning ordinance allowed owners to build accessory structures up to twelve feet high even where the structure did not comply with setback requirements. Additionally, the ordinance allowed owners to exceed that height if they secured approval through a separate special permit process open to the owners of conforming structures and nonconforming structures alike. The court found that the Irwins did not need to seek a variance from the height restriction given that the ZBA determined that they were entitled to increased height under the separate special permit process. Accordingly, the Superior Court judge erred in concluding that the Irwins needed a variance for their garage to exceed twelve feet in height.

 Donovan next contended that although the footprint of the proposed garage would be the same as that of the existing garage, the eaves of the reconfigured roof would extend ten additional inches into the airspace of the side yard. Donovan further argued that this required the Irwins to obtain a variance from the sideyard setback, and whether the variance that the ZBA granted from that setback was valid could not be resolved in the Irwins’ favor on summary judgment. The court rejected this contention, finding that even if the extension of the eaves into the airspace of the side yard were deemed to increase the nonconforming nature of the garage, that increase still would not require a variance. Specifically, municipal zoning boards were empowered to issue special permits allowing the reconstruction of preexisting nonconforming residences that would increase existing nonconformities so long as they found that the reconstruction would not be substantially more detrimental to the neighborhood. Thus, the court vacated the judgment in favor of Donovan and remanded the case for the entry of judgment in favor of the Irwins.

 Comstock v Zoning Board of Appeals of Gloucester, 2020 WL 4432295 (MA App. 8/3/2020)

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