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The next block party might be a bit awkward: Residents of one West Roxbury house sue to block neighbors from adding a second floor and attic

Proposed additions

What the Monzon house (center) would look like under plan approved by zoning board. From 5/4 hearing.

Four people living at 171 Maple St. in West Roxbury have sued the Zoning Board of Appeal over its approval of plans by their neighbors at 175 Maple St. to expand their house upward by adding a second floor and an attic.

In their suit, filed last week in Suffolk Superior Court, Vincent Bertrand, Debra Bertrand, Edward Zarrow and Carey Bertrand, who live in a two-family Victorian-style house, said the board's approval of plans by Colleen and Renzo Monzon to convert their bungalow into something larger would seriously harm them:

Among other things, the Project and the Decision and Variances that purportedly authorize the Project will have a significant and adverse impact on the Plaintiffs’ property by eliminating or substantially decreasing air, views, and light, decreasing privacy, increasing pollution within close proximity of Plaintiffs’ home, increasing density, reducing open space and harming the value of Plaintiffs’ property.

They also charge the board violated the state Open Meeting Law during the online meeting at which it approved, in part by refusing to let people who don't live on Maple Street speak, even though the property in question abuts land on Westover Street - and by refusing to let Vincent and Debra Bertrand because they had the same last name as Carey Bertrand, who did speak, even though they live in different units.

The 171 residents say there is nothing special about 175 that would cause the sort of hardships required for the variances the board approved:

The Defendants’ proposal would result in the doubling of the size of their home, a 100% increase in living space, with a FAR of .47. The real reason for seeking this relief is simply to make the existing building larger and not because of any “hardship” or any other unique quality of the property in question.

But the plans would cause hardships for them, they charge: Vincent Bertrand works at home in an office that faces 175 and that would lose much of its natural light should that house go upward just 15 feet away, while Zarrow and Betrand's two children share a second-floor bedroom that would lose its natural light. The second-floor couple's two bathrooms also get their only natural light from that side of their home. Also:

According to the Defendants, the Project would include the addition of a gas fireplace which would result in a two foot bump out of the wall in the living room on the side of the Project that shares a property line with 171 Maple Street. The exhaust from the gas fireplace would vent directly towards the back door egress of Plaintiffs, Edward and Carey’s, apartment. The exhaust would be venting carbon monoxide. The residences are only 15 feet apart.

They also say it's unfair that the Monzons get to take advantage of an illegal furnished basement that a previous owner put in - and charged the Monzons would turn the proposed attic into living space, even though its height isn't enough to support that. At the zoning-board hearing, the Monzons said they would unfinish the basement as part of their project to create a house where they could raise children; they said the attic would be used just for storage.

In their complaint, the 171 residents ask that a judge annul the zoning-board decision and grant them their costs and attorney's fees in bringing the case.

Watch the zoning hearing:

Neighborhoods: 
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PDF icon Complete complaint1021.06 KB

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Comments

These neighbors should be told by the board to get fucked; you don't get veto rights over your neighbors.

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oh no, their air and light have been harmed by a taller building next door.

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34

The neighbors are already in houses that are taller, and with higher FAR, than the neighbors are proposing to make their house, with grandfathered zoning non-compliances in every direction.

I wonder if they inscribed IGMFY above their porch.

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67

Someone a few streets over did exactly this a few years back and no negative impacts were suffered plus a family got to grown in place with grand parents and a young family in the same building.

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... the lot that the current tiny house is on looks much smaller than many of the other houses of the street's lots. I wonder if it was built so small in the first place because the lot was under-sized?

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But about the house: At least according to the complaint, the house is smaller than its neighbors because it was put up in 1961 as a sort of mother-in-law's cottage, back when that sort of thing was allowed, and was never intended to be a home for a whole family (with the implication that therefore, it never should be, ever). But it was also mistakenly put a bit too close to the property line of the people who are suing, they claim. The lot itself, though, is about the same as other lots in the neighborhood (which they raised as part of their argument that there was no hardship caused by the lot size).

But since you mentioned lot sizes: West Roxbury and Roslindale have zillions of lots, created in simpler times (i.e., with less, if any, zoning), that are between 4,000 and 5,000 square feet. As the city slowly changed the zoning in the neighborhoods over the more recent decades, residents pushed for, and got, 6,000-square-foot zoning, which means things that might otherwise be "of right" require variances and so sometimes lead to angry people confronting each other at neighborhood and zoning meetings.

If you want to see what your own private Idaho, um, property, is zoned for, the BPDA has a mapping system that lets you put in a specific address (where I looked up to see that our roughly 4,500-square-foot lot is now zoned for 6,000 square feet, which means we'd have to get a variance if we wanted to tear the house down and put up a new one - hypothetically speaking, that is).

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The neighbors have a point. There is a valid issue that needs to be adjudicated.Unfortunately all the usual suspects on Uhub go into angry attack mode whenever this type of issue comes up.

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25

By the standard zoning process and they lost. That's where it should stop instead of wasting everyone's time and money so a mortgage broker with a Newbury St office (source his own website) can have a nicer home office.

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How you use the space within your own home (in this case a home office) is irrelevant to the case. You don't purchase light, you don't purchase views. Bedrooms only loose light if the window is bricked off.

If 175 were somehow destroyed and had to be rebuilt, you can rest assured it would be built ot the maximum size allowed. The finished home and its size aren't really the problem; they just don't want to live with the noises that come with construction.

If I owned 175 Maple I would put up the ugliest 6' fence I could find ASAP. I'd also install motion-activated security lights and bird feeders to encourage plenty of birds that would activate said lights all night long.

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is the North American Wingless Ratbird.

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I have and have had various motion-sensor lights. None of them react to birds or squirrels unless said animals get really close to the sensors. Maybe turkeys, but they roost at night.

wow, the horror of a 0.47 FAR.

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which is odd.

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I suspect it has to do with Mr. Monzon's job (which you can discern by going through the complaint; search on "E-5").

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You can request that Google obscure your home on Street View.

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Like Bing Maps Streetside. . I may be wrong, but I assume these blocks on Google Street View may have the opposite of the intended effect. They might encourage people to go in person, rather than from a web browser.

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That picture does not make the neighbors seem less spiteful.

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yeah, screw the complainants.

What's proposed would clearly be more "in character with the rest of the street."

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Adam or anyone else: can you tell me which board member is the chair/was chairing this particular meeting, and are they the current chairperson? Google is failing me on that, .gov sites are outdated.
I attend a lot of (suburban) ZBA hearings, and decided to listen to this one - the lack of professionalism and decorum of this meeting surprised me - the abruptness and curt manner of cutting off speakers, telling an attorney to "calm down" (for trying to correct the statement that there were 32 letters of opposition when it should have been 32 letters of SUPPORT). R

The board made the right call, and I know there are time constraints - but the public good would be better served letting people speak for set time, to avoid frustrated petitioners feeling slighted and pursuing litigation like this.

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And she's been chairing the ZBA for awhile now.

One difference between suburban zoning boards (which I used to cover back in the day as a fresh-faced suburban reporter) and the Boston zoning board is volume: The Boston board, which generally meets every other week, has to review way more cases (here's a typical agenda).

So, yes, the chairwoman does try to speed things along - unlike her counterpart at the School Committee, she doesn't let every. last. person. speak and tells people who do to bring up new points, not repeat points somebody five minutes earlier just made.

And she knows that some of the more contentious hearings involve single-family homes in West Roxbury (I will vouch for that; in fact, the Maple Street case was the second West Roxbury single-family-house hearing of the day; and that involved the same lawyer, even).

But did she get carried away that day? I guess a judge will make the formal decision.

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I would hope the gas fireplace doesn’t emit any significant amount of carbon monoxide. That’s a serious health risk regardless of the floor area ratio and height of the building it’s in, and any gas appliance that’s doing that needs to be shut down until it can be repaired.

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Wut?

I like peanut butter, can you swim?

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The complaint alleges that the gas fireplace WILL emit CO. Unless said fireplace is faulty, that's ridiculous.

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This is crazy stuff. Why does MA even allow this level of "I live within a mile so I can tell you what to do with your property" bullshit?

And then these people move to other states and throw tantrums when they aren't allowed to "have a say" just because they walk by something once a year.

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So I suppose you would have opposed the encroachment of the enlarged single family on the adjoining 2 family houses then?

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Neighbors don't have a right to tell you what to do with your property.

They do, very much, have the right to ask the city not to grant you a special exception that allows you to build something that you wouldn't otherwise have the right to build.

But....

The entire variance process has become perverted. The intent of variances is that no zoning code, no matter how carefully drafted, can cover every possibility, and so, inevitably, someone, because they own an unusual property that wasn't contemplated by the code, is going to get shafted by a literal interpretation of the code. Under the law, the ZBA is supposed to grant variances only in such cases (see MGL chapter 44a for more details); but basically the only valid basis for a variance is supposed to be, "My property is not like others; the application of the code imposes a specific hardship on me that it doesn't impose on everybody else; you can grant this variance without negating the overall purpose and intent of the zoning code."

But in practice, the way it has come to work is that the zoning code is restrictive enough that in many districts, almost all of the properties are nonconforming, so you can't build to match the existing nearby properties. Because of this, the only way to build anything that reasonably approximates the prevailing neighborhood norms is by asking for a variance, and so the ZBA hands out a lot of variances. This creates all sorts of mess that shouldn't be happening.

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You've never lived in a HOA?

HOAs are private contractual agreements among consenting adults. Zoning codes carry the force of law.

I was more coming on neighbors that can tell you what to do with your property, While not so popular here, they certainly tell you what you can and cannot do with your property.

Couldn't be Streisander if they sang People and remade A Star is Born.

1) The homeowners proposing expanding their home apparently cannot do so without a variance because the zoning code prohibits their proposal (indeed, their existing home may be in violation of the zoning code but grandfathered in). So the neighbors are within their rights to object.

2) It is not surprising that the homeowners proposing to expand would be in violation of the code. The zoning code as written actually prohibits virtually all buildings in Boston as they stand — existing buildings are grandfathered in — and so anyone who wants to alter a building has to plead their case before the Zoning Board of Appeal to get a variance before proceeding. Even if the ZBA grants the variance there can be more litigation in the courts (as is the case here).

3) A decently written zoning code would mean that people could build on their property within the code without having to litigate the matter first, and variances would be comparatively rare. If that came to pass, we might have more housing in the city of Boston, but it seems unlikely that it will happen.