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PHILLIPS & ANGLEY SUCCESSFULLY OVERTURN DECISION OF THE BOSTON ZONING BOARD OF APPEAL

On September 22, 2016, the Boston Housing Court, Muirhead, J., issued an Order on Defendant's Motion for Summary Judgment in Goureev, et al. v. Zoning Board of Appeal, the City of Boston, et al., No. 16H84CV000137, in which the Court granted summary judgment for P & A's clients, the plaintiffs, Csaba Toth and Andre Goureev, annulling the decision of the Boston Zoning Board of Appeal which granted zoning variances to defendant, Ryan Connelly.

Connelly is the developer of 9-11 Ward Street in South Boston. The proposed development project for that property contemplated demolishing the existing buildings, combining the parcels, and erecting a four story, multi-family residential condominium with a one-story parking garage. In furtherance of that project, Connelly sought and received six (6) dimensional variances from the Boston ZBA, which waived the otherwise applicable requirements of the Boston Zoning Code for lot area, floor-to-area ration, usable open space, front yard setback, side yard setback, and rear yard setback.

The plaintiffs' property directly abuts the project site. If allowed to proceed, the project would have eliminated the open space behind their home, and would have significantly crowded their property with a new structure immediately behind their building, where nothing had been before.

Under Article 7 of the Boston Zoning Code, the ZBA is only allowed to issue a variance if (a) special circumstances or conditions applying to the land or structure for which the variance is sought (such as, but not limited to, the exceptional narrowness, shallowness, or shape of the lot, or exceptional topographical conditions thereof) which are peculiar to such land or structure but not the neighborhood, deprive the appellant of the reasonable use of such land or structure and are fully described; (b) "for reasons of ... difficulty and demonstrable and substantial hardship fully described in findings" a variance is necessary for reasonable use of the land or structure; and (c) granting of the variance is in harmony with the purpose and intent of the code.

The Court held that the ZBA's decision, which had found that special circumstances existed, failed to specifically identify the special circumstances, and failed to reference the information provided to it or on which it relied to conclude that sufficient special circumstances were present. As in so many variance decisions, the ZBA's decision was little more than "a mere repetition of the statutory words", parroting the variance standard but lacking in any "definite statement of rational causes and motives, founded upon adequate findings." Prusik v. Board of Appeals of Bldg. Dept. of City of Boston, 262 Mass. 451, 457-458 (1928). As such, the Court, correctly, annulled the decision and remanded to the ZBA for further hearings. For more information about variances, see our previous blog posts, Intro to Variances I & II, and how a lawyer might help with your variance application.

The motion was argued by Nicholas P. Shapiro, Esq., of Phillips & Angley, on August 17, 2016.

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