McGarrell purchased property, on which there was a then existing, single-family, bungalow-style home, in which the original construction of the house predated the Boston zoning code.  McGarrell needed to replace the home due its dilapidation, and because of the size and shape of the lot, any replacement would violate existing dimensional zoning requirements.  However, he could have reconstructed the old house as of right, because it was a preexisting nonconforming structure, and article 9 of the Boston code allowed for some expansions, subject to limitations.  However, because the house was torn down, McGarrell was not entitled to use article 9, and needed to pursue variances.  McGarrell did not obtain any additional approvals before beginning to build a house on the lot that was larger than the old one. After the plaintiff, Sheppard, complained, the city of Boston enjoined construction and defendant McGarrell sought approval for the larger house, which the inspectional services department denied.  He applied for five variances, which were granted, but then revised them again according to the plaintiff’s concerns, in which his new plans brought the house closer to Sheppard’s three-decker house.  McGarrell’s second application for variances was also granted. 

The court stated that under the applicable section of the Boston zoning code, a variance may be granted only if three conditions have all been met, and in reviewing the trial court’s decision, they keep in mind that variances are granted sparingly because if they are granted with too much frequency, “zoning regulations can become a matter of administrative whim.”  Even though the size and shape of the lot present its principal limitations, the judge from the lower court determined those conditions were not peculiar to McGarrell’s lot, because other lots in the neighborhood had the same characteristics.  Under the express terms of the Boston zoning code, the lot’s dimensional limitations could not serve as the reason for a variance. 

The court next explored the peculiar condition which the trial judge relied on (the dilapidated condition of the old house) and that would not justify a variance.  Furthermore, the court reasoned that the construction of the larger house would require more than the minimum variance needed if it would increase noncompliance with the zoning code.  The trial judge stated that the increase of nonconformities was inconsequential and de minimis.  However, the appeals court disagreed and stated the judge committed an error of law with the conclusion that McGarrell could expand the house vertically as a matter of right.  Increasing the size of the building intensified the nonconformity.  The court stated that a property owner could not intensify an existing nonconformity as of right.  The court concluded that the variances the board granted were not the minimum necessary to allow for a reasonable use of the property, and the board acted in excess of its authority. 

As to McGarrell’s claim of alleged discrimination, the court determined that the trial judge’s declining to justify the variance based on personal hardship of the property owner was consistent with the case law.  McGarrell argued that construction of the larger home was necessary to accommodate his disability, and insisting on strict compliance with the zoning regulations would amount to unlawful discrimination under G.L. c. 40A § 3.  However, the court stated that McGarrell could not make a claim for discrimination based on the trial record. 

Finally, the court addressed the plaintiff’s request for the house to be torn down on remand.  The court declined to do so, because it would be more appropriate to consider equitable factors and money damages as an alternative remedy.  The court reversed the judgment affirming the board’s grant of the variances and remanded for further proceedings. 

Sheppard v. Zoning Board of Appeal of Boston, 2012 WL 695557 (Mass. App. Ct., 3/7/2012) 

The opinion can be accessed at: http://law.wustl.edu/landuselaw/cases/A%20Variance%20Case.pdf 

Read more about this decision on the Massachusetts Real Estate Law Blog:  http://www.massrealestatelawblog.com/tag/sheppard-v-boston-zoning-board-of-appeals