On Brookline

THE WORLD OF BROOKLINE ZONING
By Arshag Mazmanian

Let’s say you own a lovely home in Brookline and you and your family enjoy the neighborhood.

Now, consider these Scenarios:

Scenario One: You live near an oversized lot with a single family home. The owner submits a plan to the Planning Board to divide the site to create a separate building lot that satisfies all zoning requirements and the Board decides “Approval Not Required,” commonly referred to an ANR plan. Then the new lot is sold and the purchaser decides to build a single family home, submitting plans with an application for a building permit to the Building Department, which examines the application and plans and determines that they are in compliance with zoning requirements, and issues the building permit.

You and other neighbors may not be aware of all this as no public notices are necessary for the issuance of a building permit where the plans are determined to be in compliance with zoning requirements. (There is an exception for sites located in a historic district involving the Preservation Commission. However, most of Brookline is not included in historic districts, at least not as yet.)

Scenario Two: You had attended a ZBA hearing of the type described in Part I of this series. No appeals were taken, perhaps because you and your neighbors were satisfied that the conditions imposed by the ZBA for the special permits and/or variances granted would provide adequate protection to you and your neighbors.

With each of these Scenarios you observe the progress of construction and become concerned.

Scenario One: You review the file in the Building Department and feel that the plans indicate that they may not be in compliance with the zoning bylaw, e.g. set-backs (front, side, rear yards), height, density (floor area ratio or FAR) or other dimensional requirements. You file a complaint with the Building Commissioner pursuant to G.L. Chapter 40A, Section 7.

Scenario Two: You observe that certain of the conditions contained in the special permits and/or variances are not being complied with; or that the actual FAR exceeds what is allowed by the special permits and/or variances. You file a complaint with the Building Commission pursuant to G. L. Chapter 40A, Section 7.

Let’s say the Building Commissioner denies each of these complaints. You then consider appeals to the ZBA pursuant to G.L. Chapter 40A, Section 8, consulting first with an attorney. After reviewing these Scenarios, the attorney is of the view that there are clear-cut zoning violations. So it would appear to be a slam-dunk before the ZBA.

Not so fast, the astute attorney will tell you. Section 8 specifically provides for an appeal to the ZBA by a person aggrieved. Thus, if the ZBA were to determine that you were not a person aggrieved, even as an abutter, then your appeal would fail no matter how egregious the Building Commissioner’s decision. On such an appeal to the ZBA, once you are challenged by the developer you would have the burden of proof that you are indeed a person aggrieved. (Contrast this with the situation described in Part I of this series where it is the court and not the ZBA that addresses whether or not an appealing party is aggrieved.)

If the ZBA denies your appeal, you can of course take a judicial appeal; but it would be quite difficult overcoming the ZBA decision that you are not a person aggrieved. As noted in Part I of this series, the courts have in recent years made it quite difficult for an appealing party to prove that she is a person aggrieved.

While you may be aggravated by all this, you may not be aggrieved. What do these Scenarios tell us about the integrity of zoning in our Town?

Stay tuned.