South End roof-deck battle lands in court

The owner of a South End condo and roof patio yesterday sued the Zoning Board of Appeal to block construction of a pair of decks - one with a grill and fire pit - atop the building next door.

In his suit, filed in Suffolk Superior Court, Douglas Rudisch, who lives on the seventh floor of 1166 Washington St., asks a judge to "annul" the board's unanimous decision on March 28 to allow two decks at the neighboring Columbian Building at 1154-1160 Washington St.: An 887-square-foot deck available to residents of all eight units, with room for up to 49 people at a time, and a smaller, private 155-square-foot deck.

Rudisch says the larger deck would become a noisy nuisance at eye level of his unit and small patio. He says the larger deck, which will also have chairs and tables, will intrude on his privacy - his patio and living room are within eyesight of the deck area - and reduce the value of his unit. Also:

Use of the proposed communal roof decks at the Property for parties and functions will result in noise levels, including from amplification of music, that violate the Regulations for the Control of Noise in the City of Boston and will interfere with Rudisch's ability to use and enjoy his property.

Use of fire pits and gas grills on the roof of the property will introduce open flame on the roof and increase the risk of fire to Rudisch's property.

Legally, Rudisch argues, the board exceeded its authority. Roof decks in general are a "conditional" use in the South End - which means they can be approved with a simple once-over by the board. But Rudisch's attorney argues the board loses the right to grant a simple "conditional" approval if the building already exceeds the maximum allowed height along Washington Street of 70 feet, which he says the Columbian Building does, by some eight feet, and that the board failed to make the case the decks should get a variance from that.

The board granted a variance after the building's zoning attorney argued that an existing parapet would shield the decks from view from the street and from the nearby Peters Park, that they would be behind existing mechanical equipment between them and Rudisch's condo, and that the building went up in 1892, long before current zoning came into effect.

The board did not consider the gas-fired fire pit and grill, because those are subject to a separate review process by Inspectional Services and the Boston Fire Department; the building's attorney said "there are many, many, many roof decks that have such devices."

Complete complaint (4.2M PDF).