HADDAD v. ZONING BOARD OF APPEAL OF BOSTON (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Samir Kobeissi (homeowner) appeals from a judgment of the Superior Court annulling a variance granted for the construction of an addition to his single-family home by the zoning board of appeal of Boston (board). For the following reasons, we affirm.

Background. After hearings on the matter, the board granted the homeowner's request for a variance permitting a 1,568 square foot addition to his home. The variance allowed the addition to exceed the proposed floor area ratio allowed by the Boston zoning code, art. 56, § 8, by approximately 839 square feet. Shortly after the board issued its decision, Nicholas Haddad and Julie Haddad (collectively, abutters) filed a complaint in the Superior Court seeking an annulment of the variance. The abutters own the property directly next door to the homeowner. The case was tried without a jury in the Superior Court over two days. Only two witnesses testified: the homeowner and Nicholas Haddad. The judge then delivered findings answering the two agreed-upon questions, concluding that the abutters had standing to challenge the board's decision to issue the variance and that the board had not properly granted the variance.

Discussion. 1. Standing. After consideration of the evidence at trial and applicable case law, the judge correctly found that the abutters had standing to pursue their density claim. See McGee v. Board of Appeal of Boston, 62 Mass. App. Ct. 930, 930 (2004) (provisions of Boston zoning code authorizing variances and enabling judicial review for parties aggrieved by board's decision “much resemble analogous sections in G. L. c. 40A, the zoning act applicable generally to cities and towns,” such that we may “import the teachings of decisions under G. L. c. 40A to cases arising under the Boston ․ [zoning] code”). Standing is “a question of fact for the judge,” whose “ultimate findings on this issue will not be overturned unless shown to be clearly erroneous.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 119 (2011), citing Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 722 (1996). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” (citation omitted). Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160-161 (1977).

Abutters enjoy a rebuttable presumption that they are “persons aggrieved.” Porter v. Board of Appeal of Boston, 99 Mass. App. Ct. 240, 241 (2021). “A plaintiff is a ‘person aggrieved’ if he suffers some infringement of his legal rights.” Marashlian, 421 Mass. at 721. “[C]rowding of an abutter's residential property by violation of the density provisions of the zoning [scheme] will generally” furnish aggrievement and standing. Dwyer v. Gallo, 73 Mass. App. Ct. 292, 297 (2008).

Among other evidence, the homeowner relies on exhibits showing that his addition would not cross onto the abutters’ property and that the addition would still allow for open space. Neither of those exhibits -- plans for the homeowner's current home and the proposed addition -- rebutted the abutters’ presumption of standing with regard to their density concerns. Compare 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 702 (2012) (“where an abutter has alleged harm to an interest protected by the zoning laws ․ the defendant may [rebut aggrievement by] present[ing] affidavits of experts establishing that an abutter's allegations of harm are unfounded or de minimis”). Notwithstanding the fact that the judge did not consider the presumption of aggrievement successfully rebutted, she additionally noted that the abutters “put forth credible evidence to substantiate their claim” -- specifically, one abutter's testimony and assessors’ records reflecting floor area ratios for the parties’ homes and surrounding homes, which would have established standing had the homeowner rebutted the presumption. We agree with the judge's analysis.

2. Improper variance. Judicial review of a zoning board's decision “involves a combination of de novo and deferential analyses.” Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469, 474 (2012). “A board's decision cannot be disturbed unless it is based on legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary” (quotations and citation omitted). E & J Props., LLC v. Medas, 464 Mass. 1018, 1019 (2013). See McGee, 62 Mass. App. Ct. at 931 (“board acted in excess of its authority” in approving variance to exceed floor area ratio limitation simply because lot “was too small,” as “inability to maximize the theoretical potential of a parcel of land is not a hardship within the meaning of the zoning law”). Because the board's decision to allow the variance was devoid of pertinent findings,⁴ we conclude that the judge correctly determined that the purported variance was invalid.⁵ See Warren v. Board of Appeals of Amherst, 383 Mass. 1, 10 (1981) (board's decision “invalid on its face” if it “did not make the explicit findings which are prerequisite to the granting of a variance and which ․ are not supplied by a bare recital of the statutory conditions” [quotation and citation omitted]).

Finally, to the extent that the homeowner argues that the judge “summarily overruled the grant of the variance without explanation as to the error of the [b]oard,” we note that the parties opted for the judge to answer special questions, which effected a waiver of written judicial findings with the level of detail required by Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). Accordingly, the judge entered only a conclusory answer to the two agreed-upon questions. Cf. Motsis v. Ming's Supermkt., Inc., 96 Mass. App. Ct. 371, 379 n.20 (2019) (“The parties [in such cases] waive all arguments in the trial court or on appeal that require or depend upon the existence of detailed written findings of fact” [quotation and citation omitted]).

Judgment affirmed.

FOOTNOTES

4.   The board's decision stated that it found “that all of the following conditions [were] met: (a) That there are special circumstances or conditions, fully described in the findings, applying to the land or structure for which the variance is sought ․ which ․ are peculiar to such land or structure but not the neighborhood, and that said circumstances or conditions are such that the application of the provisions of this [c]ode would deprive the appellant of the reasonable use of such land ․; and (b) That for reasons of practical difficulty and demonstrable and substantial hardship fully described in the findings, the granting of the variance is necessary for the reasonable use of the land ․; and (c) That the granting of the variance will be in harmony with the general purposes and intent of this [c]ode and will not be injurious to the neighborhood” (emphasis added). The record contains no additional findings or explanations beyond these statements.

5.   The homeowner's request for sanctions is denied.