Neighbors Say Permit for New Braintree Home Issued 'Unlawfully'

Braintree's building inspector issued a permit and construction began last year on a Myrtle Street home despite a variance that neighbors say lapsed long ago, leaving behind what should have been an unbuildable lot. 

The two-and-a-half-story home – at 38 Myrtle St. – is partially complete, sitting on a lot that is about half the minimum size established by Braintree's zoning laws.

Further construction or demolition awaits a decision by the Zoning Board of Appeals, which continues a hearing on the property Wednesday night.

Christine and Matthew McIntyre, who live across from the property at 2 Spruce St., filed an appeal with the town last year, arguing that Inspector of Buildings Russell Forsberg never should have issued a building permit. 

They are joined in their effort by several abutters, who have been challenging the idea of a new home on the lot since last spring, when the former owners sold the property to Braintree-based Mento Enterprises, Inc.

The 6,621-square-foot lot was sold on May 16, 2013 for $140,000. A sale announcement by Keller Williams Realty noted that the lot was being "sold in as-is, where-is condition" and that the buyer should do their own "due diligence on the land & to obtain any and all permits to build."

The lot is located in a Residence B zoning area, requiring at least 15,000 square feet, along with 100 feet of width. The lot does not meet those conditions and therefore required an active zoning variance prior to construction.

A Property History

Nearly 30 years ago, Braintree officials did grant a variance allowing the previous owners to subdivide their property into two lots, but the neighbors argue that that the special permission expired long ago.

In 1986, Henry and Ellen Anderson obtained a variance for the two-parcel subdivision, "based on the hardship that they could no longer care for their existing large home and intended to sell the home to their children and build a smaller home on the second parcel," according to the McIntyre appeal.

That variance and a corresponding subdivision plan were recorded in 1987, but the Andersons did not obtain a building permit or take any other actions until 1994, when they sold the lot to their two daughters for less than $100.

"Therefore, the variance had lapsed in 1987 and the lot reverted to being a non-conforming lot since it does not have the requisite size, width and frontage requirements to be a buildable lot," the McIntyre's said in their appeal summary.

Jane and Chris Barney purchased the original Anderson home at 30 Myrtle St. in 2009. Nothing else happened with the other lot at 38 Myrtle St. until last year, when it was sold to Mento Enterprises.

At that time, last May, the abutters collected dozens of signatures on a petition arguing that construction on the "extremely small" lot would "detrimentally alter the character of this historic neighborhood."

"We just want them to do what's right," said Rick Murphy, who lives at 37 Myrtle St.

A Contest of Definitions 

The McIntyre's appeal claims that Massachusetts General Law and a State Supreme Court Decision from 2009, Cornell v. Dracut, establish that because the variance was not used within one year, it expired.

A judge ruled in the Cornell case that the property owner failed to demonstrate that he exercised a variance for frontage for his two-parcel subdivision "because he had neither acquired a building permit nor conveyed one of the lots in reliance on the variance."

Therefore, the McIntyre's say, Forsberg should not have issued the building permit in the first place, and Mento should not have gone ahead with construction knowing that there was an issue with the property.

"Why should we have to appeal something the town shouldn't have done?" Christine McIntyre said. "[The town] should take the side of what's legal."

Forsberg did not respond to messages requesting comment. 

Weighing in on the appeal, Town Solicitor Carolyn Murray said in a memo to Mayor Joseph Sullivan that she "considered the status of the variance to be uncontested" because the variance and a subdivision plan were both recorded in a timely manner and no one questioned the status of the variance prior to September.

Furthermore, Murray said the facts in the Cornell case are different from those involving the Myrtle Street property and that she was "not aware of any case law on the lapse of a variance that is directly on point with the facts of the Anderson case."

"It is possible that a court would find that the variance had lapsed for failure to obtain a building permit or to convey either parcel within one year of the grant of the variance," Murray said.

However, she continued, a court may also take issue with one property owner "enjoying the benefits of a variance while asserting that the other property owner should be denied the benefit of that same variance."  

A Matter of Timing

The Planning Board sent the matter to the Zoning Board of Appeals without a recommendation vote last November.

Board Chair Robert Harnais said he did not want to lend either side support, and that whichever way the appeals board decides, he believes it will end up in land court.

"They both have very valid arguments," Harnais said.

The appeal is also being questioned for its timing. The McIntyres filed it within a 45-day window of the permit being issued last Aug. 13, on the advice of town officials, but in fact the appeal period was 30 days. 

In her memo, Murray said that based on Forsberg's advice she encouraged the McIntyres to file by Sept. 27, even though by then the appeal window had actually passed.

The Zoning Board of Appeals is scheduled to weigh in on the timing and potentially the substance of the appeal during a hearing at 7 p.m. on Jan. 8 at Town Hall.

That follows an initial meeting on Nov. 26 in which Stephen Karll, chair of the zoning board, encouraged the neighbors to work with builders Joseph and John Mento.

"We're trying to work out a resolution," Matthew McIntyre said.

An Offer and Refusal

The Barneys said they met with Joseph Mento, president of Mento Enterprises, and offered to buy his property for approximately $30,000 – close to the value assessed by the town previously, when it was designated "unbuildable" on property rolls.

Mento declined the offer, the Barneys said, and instead grew angry and threatened to tear down their home if they succeeded in stopping his construction, arguing that their lot relies on the variance as well.

Mento did not respond to messages requesting comment.

Solicitor Murray also said that if the appeal is upheld, then the Barney's lot would be in violation of zoning law and could not exist lawfully as a separate lot.

"This, in turn will trigger some legal proceedings that are beyond the scope or control of the Town," Murray said.

But based on Matthew McIntyre's legal research (he is an attorney, though not a specialist in land use), he said the Barney's home could not be challenged because the statute of limitations on an appeal has long since passed.

A Decision by the Board

Mayor Sullivan said he understands the concerns of both sides, but that it was up to the building department to issue the construction permit. He said he asked Murray to weigh in on whether the permit should have been issued, but now the decision is up to the zoning board.

"I’ve got to let those boards make their own decisions, hopefully in a thoughtful manner," Sullivan said. "I wish there could be a remedy to this in a manner that’s going to please all, but I’m not sure that’s going to happen.”

Citing examples of other homes in the state that have been torn down after successful zoning appeals, in some cases taking many years, the neighbors said they would prefer Mento and the town compromise on the cost of tearing down the partially-constructed home. 

"It may be bad that it has to be torn down," Jane Barney said, "but better now than when some innocent person buys it."