Zoning: forgiveness beats permission?
“It is better to ask for forgiveness than permission.”
Is it? Not in housing and urban development, where it can lead to a lose-lose situation:
A politically connected Dorchester family is getting help from the highest levels of City Hall to save a newly constructed house that two courts have ordered destroyed because it violates
Quick: which of these houses would you tear down?
“All politics is local politics,” — Former Speaker of the House Tip O’Neill,
As I’ve posted before, zoning is destiny, so if you want to change the destiny, change the zoning!
Though Suffolk Superior Court and the Massachusetts Appeals Court have sided with angry neighbors and ordered removal of the house built by Jackie and Anthony O’Flaherty, officials including Boston Redevelopment Authority director Mark Maloney and Mayor Thomas M. Menino have intervened on the family’s behalf.
Menino recently ”made clear his commitment to resolving” the matter, according to a March 30 e-mail by a BRA lawyer, and the BRA is now trying to amend the zoning code so that the house would no longer violate the rules. This week Maloney contacted a lawyer representing the neighbors in an effort to broker a compromise with neighbors.
Set aside the politics, about which I know nothing, what’s of more interest is, how the house came to be there in the first place:
Controversy over the 2,000-square-foot house on
In older urban communities, zoning tends to advance over time, meaning that many properties built before the zoning changed are ‘non-conforming uses’ which are grandfathered (that is, exempted from the new more restrictive zoning). So it’s by no means uncommon for there to be such, and indeed, most communities have a zoning board of appeal. At such hearings (once upon a time, I went to one, architect drawings clutched in sweaty palms), abutters and abutters-of-abutters are consulted. Here things went a little differently:
Several neighbors turned out to object, but, they said, weren’t allowed to speak. …
Construction of a new house would result in three structures on the lot, including the two-family house and a barn at the rear. But the total number of buildings was not an issue before the Zoning Board.
The Zoning Board issued the variance, and two weeks later the neighbors sued, arguing that squeezing the house onto a lot with such small frontage meant that the new building would block their view and access to light and air. They also argued that the house would increase traffic and congestion in the neighborhood.
”This happened because of the process,” said Yvonne Ruggles, one of the neighbors who sued. ”It was our understanding that as abutters we had the right to question the development. But when we went to the Zoning Board they didn’t ask for the abutters. The lot was too small.”
True, this home squeezes onto its lot, but …
judging by the neighbors, everybody’s cheek by jowl
A
I wasn’t there when it happened, but still sure sounds like the judge made a mistake in practicality, even though …
The family’s lawyer assured the judge that if the family lost the case they would tear down the house.
The family has lost — twice:
They built the house, now valued by city assessors at $407,400, and moved in 2002. The following year, Superior Court Judge Janet Sanders ruled against them, ordering the Zoning Board to deny the variance and take ”all action necessary against the O’Flahertys to enforce the provisions of the code, including an order that they remove” the house.
In January, the state
Now they cry hardship:
The O’Flahertys say their lives have been made miserable by the controversy and fear a wrecking ball will demolish their home.
”We just wanted to have enough room for our family,” said Jackie O’Flaherty. ”Our kids were sharing a bedroom, and we needed more space. It was always our dream to build on the lot.
”This has destroyed my family,” she said. ”My 10-year-old daughter is crying over this all the time. It started off they wanted the power in the neighborhoods and it turned into an angry mob that would do anything and everything to hurt us. I can’t fathom why they’ve taken it to the extremes they’ve taken it.”
By now it’s become lose-lose, both personally for the neighborhood:
The battle over the house has galvanized the community, and hundreds of people turned out Monday night [25 April — Ed.] to speak for or against the city’s proposed solution to the problem: changing the zoning code to circumvent the court decisions by ensuring that the lot complies with zoning rules.
Under the proposed change, a property owner could be issued a building permit for a lot without having to go before the Zoning Board of Appeal as long as the frontage on a lot is at least 75% of the frontage specified in the zoning code.
In other words, they propose to amend the zoning code to shrink the frontage requirement by 25%.
Even if the change is stimulated by one contentious case, any solution will have policy ramifications:
Some residents worried that the amendment, which will make it easier for property owners to build without first going to the Zoning Board of Appeal for special approvals on lots that have smaller frontage, would have broad implications for neighborhoods across the city. They said it could make it easier for builders to squeeze projects onto tiny lots.
“Could”? Zoning is destiny. Will.
What started as a fight over a single contentious house is now a policy crisis — and bad facts make for bad law — and also a political problem for the mayor:
Councilor at Large Maura Hennigan, who is running for mayor, said she has never seen the city bureaucracy organize so publicly on behalf of a single family.
”I’ve never seen such a blatant example of putting a personal relationship ahead of what should be an objective process,” said Hennigan, who opposes the zoning code change. ”We can’t have a city that sets its laws based on personal interests and friends.”
While you shake your head over urban politics, consider the broader implications, such as the problem, common in developing countries throughout the world, of the ’squatter camp,’ the ‘informal settlement,’ or as I prefer to call them, ’spontaneous communities.’ People build where they want to, in violation of formal rules of law, and by the time government arrives to enforce the abstract principles — valuable ones, true, but abstract at a community level — their enforcement means displacing real people who cry real tears. In the extreme — slum clearance — government uses the bulldozer, …
… and leaves political scars that can last generations (such as
Better to ask forgiveness than permission? Better for whom?
