Ward 8 Alderman Rick Lipoff is among the board members in favor of letting Oak Hill resident Albert Pinkhasov, slide on the three-tiered retaining wall he built without the proper permit, Wicked Local’s Jim Morrison reports.
“We don’t like to see people break our rules,” Lipof said, “but we have got to do the right thing here and not destroy this wall. We have to keep open minds. We’ve received letters from neighbors saying they have no issue with the wall. Nobody came complaining about this wall.”
Ronald Reagan: ‘Tear down this wall’ – oops, wrong wall
The kids that make the laws shouldn’t be the appeals deciders. This is basic segregation of duties. How does one in a given period say this is the Bible according to Newton, and in another period say, well, that was too harsh? Has it always been this way?
I have to say that based on what i think I know, this does not sound like an innocent who just didn’t understand what he was doing. And even if he was, if one allows for that, guess how often someone will claim ignorance.
If there was a provision to impose a heavy fine, that might be adequate as a remedy. But I suspect there is no such provision.
So, I think this wall ought to come down.
One caveat: if there would have been NO question that this wall would have been approved if properly asked for, that could make a difference.
Dan, that may sound good to you, but a property owner could successfully appeal a denial on that basis.
Don’t make him tear down that wall. This was his first job in Newton. He is going to live there. He’ll be the one to have to look at it. And it would be expensive to remove. But maybe he should put up a fence to prevent a trespassing neighbor from falling over it. Besides it was his landscapers mistake, not his. And the city is going to make him plant ivy over it to make it look good. Give him a break.
THIS wall and the abutters are not the key issue here. The question is what does the BOA say to the next so-called naive resident/developer who doesn’t comply with a zoning regulation? And there will be others, and I fear many others, if the city doesn’t make it clear that it will not allow this to continue.
Because so many residents/developers snub their noses at zoning regulations, we’ve come to this point – the next person who’s denied a special permit will most likely appeal. That’s what happens when you let people get away with disregarding the law. When do you put a stop to it?
Why is not there not the appropriate question for those that DID take steps to obey laws? Are those participants in the development commerce just weak in their craft?
Ted, i didn’t understand your comment. A denial on what basis?
@Jane. Amen. I was in the room on a cold night two months ago when this first surfaced before the Land Use Committee. The statement that all the neighbors support this guy is simply not true. There were elderly neighbors from two houses that were there complaining about the wall project itself and also about the extremely bright security lights from the yard were being directed right at their front windows. Maybe it’s just me, but I just can’t imagine myself or any of my neighbors being that insensitive. I’m still baffled that this guy will be allowed to slide while the poor blokes that unknowingly parked at the unmarked handicapped parking spaces in Newtonville are still going to be dunned a fine for what they did.
Dan, the courts have long held that property owners must be given an opportunity to cure a zoning violation by seeming a special permit, even if the owner agreed in bad faith. Jane, the problem is that the city has not been assessing fines. That is the executive’s responsibility, not the BOA’s. The BOA’S job is solely to determine whether the applicant has satisfied the legal criteria for granting a special permit, and may not intrudes consideration of prior zoning violations, character or reputation.
*acted in bad faith*
Jane. You can absolutely bet there will be more such cases. In fact there is one which ISD is chasing down right now. Wall was built in May 2013, discovered by ISD in September and yet still not in front of the BOA. Yet another example of lax enforcement.
I don’t know even know this person’s name, let alone his character. The only thing I know is that he’s quite well off if he could afford a $250,000 wall. Other than that, I assume he’s probably a very nice man. However, he built something that did not comply with our zoning laws. Assessing fines isn’t going to do a thing to stop this behavior – it’s chump change to a resident who can afford a $250,000 wall. The only action that will effectively end the practice of residents/developers ignoring zoning regulations is for the BOA to require residents who do so to remove the offending structures.
I’m with Jane and Dan here (and what I’ve said before). I listened to the debate Monday night. Some aldermen seemed to be saying, well, we might have approved it with modifications if it had come before us before he built it. If they really would have approved anything like this, 18″ from a property line (which the current owner may not care about, but what if it collapses on a future owner in 20 years?), we’ve got a bigger problem than just one wall. Jay Harney’s on point response to that was, we don’t have that option because it’s already built.
Others including Deb Crossley and, I believe, Susan Albright said our zoning rules are confusing, they’re not as clear as Wellesley’s. But as Lisle Baker I think pointed out, he built this wall in a way that wasn’t in the plans. If he’d actually submitted it in the plans before building it, it would (one hopes!) have been caught, and whether or not he was ‘confused’ would have been irrelevant.
To assuage the concerns of those who think it would be worse from a safety perspective to remove the wall than leave it in place, I would say, remove about the top two feet of each level, leave the rest in place for stability, build an inner wall far enough away from the property lines to be legal, and then fill in the area between the inner and outer wall, restoring the original land contour within the setbacks. Removing the top 2 feet of the illegal wall before covering it up would allow a future owner to plant trees up there to restore some of the canopy and reduce runoff from the hill. (Trees roots being in the top 18″ or so of soil.) This would also be less expensive than removing the existing wall, while still bringing it into compliance.
Jane, even if everything you said were true, deterrence is not within the authority of the BOA. Taking your argument to its logical extreme, i.e., the homeowner must be able to afford it so we should force him to remove the wall, we would have to start demanding financial statements from applicants. That is not our job. The executive can assess fines and order demolition if necessary, and bring civil or even criminal proceedings to enforce it. Granting a special permit is a quasi judicial proceeding, the speakers do not testify under oath, and we have neither the resources nor the authority to pry into who can or cannot afford relief.
We recently had a restaurant come in for a parking waiver. As the Commissioner of ISD and former Commissioner of the Health Department explained to the aldermen, there is no way the owners did not know they had too many seats in their restaurant for their permit. Indeed, to obtain a permit to operate restaurant owners have to confirm the number of seats they are allowed. Despite this fact, the BOA granted a special permit, in part because despite the fact there were too many seats there had been no reported parking problems.
Ald. Lipof had it right. While we want owners to follow the rules, it is not the BOA’s job to punish or deter zoning violations. The recent spate of zoning violations has had at least one salutary effect, however, which is that a number of aldermen are considering a budget resolution to add back another full time inspector to ISD. This makes sense from both an operational and a fiscal perspective, since inspectors actually generate significant revenue for the city through building permits.
If developers and residents know that they’ll be held accountable and asked to remove a structure that’s outside the confines of the existing zoning regulations, they’ll make sure that they know what those regulations are. The fact of the matter is that most residents do comply with the zoning regulations and make modifications to their plans to be in compliance, and those are the people who are being punished by the BOA’s lack of action in this case. By approving the disregard of the law, you’re in effect saying to residents that they’re better off not applying for a special permit – build and they will approve.
Everyone knows there are zoning regulations and everyone knows s/he’s supposed to comply with them. When we were looking for a house, I went to Inspectional Services to check out what could or could not be done to every property under serious consideration as a normal part of the process of buying a house. IS was very helpful, and explained the limitations and possibilities of each property in 10 minutes at the most.
I’m not complaining about the wall. My complaint is with the Board who is in a position to do its part in making residents comply with city regulations, and instead is doing just the opposite – sending a clear message that ignoring the special permit process is perfectly okay.
@Jane. I learn something new every day even at my age. Great idea that every prospective home finder should know. I would have never thought to go Inspectional Services if I was looking at houses here in Newton to see what I could and could not do on the property. Then again, I’ve never thought of living any place other than where we are now.
Ted,..
With all due respect,…if “deterrence may not be within the authority of the board of aldermen”, certainly the issuance of a special permit is, and in this instance, clearly, a permit should not be granted. Otherwise what’s the point of B.O.A. review ? You have no teeth.
Jane,
Ted just explained that deterrence isn’t within the authority of the BOA. If they don’t have the authority to do something, one can’t complain when they fail to do something they aren’t authorized to do. So evidently, they do not have the authority to make an example of this homeowner or, as a prosecutor would say, “send a message”. Ted also provided an excellent explanation of the process for approval in another thread, and earlier summary wraps it up rather succinctly:
“To be clear, the aldermen may reasonably disagree about the relative merits of this project in making their decision whether to grant a special permit in this case, based on the criteria in the zoning statute and ordinance. What we are not allowed to do, however, is engage in a determination of whether the prior zoning violations are deliberate or were the result of a “pure heart and an empty head,” or whether the property owner intends to sell the property at some indeterminate time in the future. The BOA’s task, then, is to decide whether to grant a special permit with conditions that will effectively mitigate the impact of the project or deny it. Perhaps this is not satisfactory to some, but the BOA must follow the law, and it would be unacceptable to deny a special permit on an impermissible and legally deficient basis that could be successfully challenged and overturned in court.”
Read more: http://village14.com/newton-ma/2014/04/should-aldermen-make-oak-hill-home-owner-remove-his-retaining-wall/#ixzz31E4ACUpV
Blueprintbill,
If you take a look at the written guidelines for approval of a special permit, the point of the BOA process is to determine whether or not the use of the site “will be in harmony with the general purpose and intent of the zoning ordinances…” The special permit “is limited to the standards and criteria set forth in the Zoning Ordinances.” The BOA is authorized to deny a permit for any permissible reason (i.e. the standards and criteria set forth in the Zoning Ordinances), they are not allowed to reject the permit request based upon the character or reputation of the individual requesting the permit. How is it clear that the use is not in harmony with the general purposes and intent of the zoning ordinances?
http://www.newtonma.gov/civicax/filebank/documents/44169
Seems to me that special permits have been granted with conditions attached, i.e., you want more restaurant seats but got only so many parking spaces — then add a few bike racks, and you’re good. So is it really a yes or no proposition? I’d find it more harmful than good to try to correct the side walls. But why do we have certain height restrictions? If it has anything to do with safety, then the BoA should require changes.
If this “reconsideration” vote fails, can he make another attempt with a different plan?
This permit is a docketed item for the Board of Alderman. The BOA can vote it up or down, and that too is the law.
In my opinion, as an unintended consequence of a Yes vote, we will see more and more people who will not bother to apply for a special permit and go forward with a building that is out of compliance of the zoning regulations.
If someone were to ask me about how strictly Newton adheres to its zoning laws, I’d have to tell them, “Not very”. Build it and if they come after you, not to worry – the BOA has a very public history of going easy on those who don’t comply with zoning regulations.
Yes, it is true that the BOA has discretion to vote it up or down, but that discretion is limited. They may not exercise their discretion arbitrarily. They must act fairly and reasonably on the evidence before them. The reasons for any decision must have a substantial basis in fact and not pretext. Deterrence isn’t a permissible consideration.
I will try one last time. The Executive Branch (i.e., the Mayor) has the authority to enforce the laws, not the Legislative Branch/Special Permit Granting Authority (i.e., the Board of Aldermen). That is just Civics 101. In addition to voting a special permit up or down, the Board Rules and the courts require that members who vote “no” must also state their reasons. That is to ensure that members are voting denial for valid reasons, rather than arbitrary or capricious ones.
I think there are plenty of valid reasons to vote No. And if “we let something stay for this other person” is a valid reason for voting Yes, we’re in big trouble. Might as well toss out zoning regs.
Well, if you said “yes” to everyone else but single out a particular owner and say “no” to that applicant, it certainly raises a question of arbitrary and selective enforcement. If there are valid reasons for denial, it can be denied. Nothing extraordinary there.
I’ve brought it up before, and I’ll bring it up again. What is the future liability to the city if the BoA grants a special permit that breaks these setback and retaining wall height regulations?
Yes the BoA can specify that a fence be put in place now. But it can’t control that the fence will be kept there in perpetuity, can it? So someday, a neighboring grandparent or child takes a wrong step, and goes tumbling down this inverted ziggurat, due to the setback being just 18″ from the edge of the property… can a claim be made that the city was negligent in ever granting such a permit, if it’s determined by a jury to be a safety hazard?
Could someone please clarify (Ted H-M maybe?). I thought that at the full BOA meeting on Monday 5/5 that the board did not approve this special permit request (there were 14 votes for it whereas 16 is needed). So what happens now?
Good question, Dulles. A special permit runs with the land in perpetuity unless it is expressly limited. A number of years ago, an apartment building with a special permit took down a fence that screened the parking lot from the neighborhood. When the neighbors complained, I worked with the law department on getting the owners to replace it. Because the fence was on the plan that was incorporated by reference into the special permit board order, I was eventually able to get the owners to agree to replace the fence.
@Lisap – your comment hits on one of my chief concerns. Special permits seem to be granted fairly routinely and too leniently in my mind which now sets a precedent for everything coming thereafter. As an example, if a parcel of land is zoned for a 2 family, why do we time and again see 4 units approved and packed in on the lots? That’s double what is allowed by right.
Maybe Mr. Lipoff should move next door to this guy! Maybe he should move next door to the NEXT home owner that tries to do the same thing! This guy (homeowner) is a GREAT actor! He claims he didn’t know the rules and his contractor didn’t know the rules! BALONEY!!!!! They knew them and they knew this would not FLY!!!!!! You let one person do this, and next time we have 10% of the “residents” stating the same thing.
By the way, is this “homeowner” planning on flipping the home? Maybe a clause should be put that the wall can stay, until a sale of the property and then the CURRENT homeowner needs to reconstruct the wall with the proper permits!
Peter, there were 15 in favor, 8 opposed, and 1 vacancy. I tried to change my vote so that I could file a motion to reconsider (to file a motion to reconsider you have to be on the prevailing side which was “no” in this case). I was unable to get the clerk’s attention before he announced the vote, however, so I was not allowed to do so. As a courtesy, Ald. Blazar, who voted “no,” agreed to file a motion to reconsider so that additional information can be considered. Among other things, I have asked the law department to provide legal guidance on valid reasons for denial of a special permit.
Ted. Thanks for clarifying. I thought that you were able to change your vote hence my saying 14 in favor.
NewtonMom, I think it’s already been posted that the permit runs with the land – so the permission would follow to any subsequent owner of the property. Either the permit is justified right now under the ordinances or it is not.
Peter, I hear you. I often find myself amazed, and not in a good way, by the gigantic homes built on really modest lots, wondering how on earth they fit within the set backs. But, I think that the bottom line is that forcing someone to tear down a structure because they didn’t comply and obtain a permit in advance in and of itself is not justification for denial.
If one would vote “no” to something on paper (not built) and then is approached with a similar proposal that is already built and votes yes, then that member might have been influenced by such things as cost to rebuild or modify. So isn’t the right question why would one vote “yes” to this on paper (not built)? The same committee (or it’s predecessors) said as a rule this is a big no, no when it wrote the ordinance.
Thanks @Ted! You’re keeping up the record of being among our most accessible and responsive members of the BoA. 🙂
I agree with Dulles’ comment regarding THM. I would even remove the qulaifier, “among”. I do not always agree with Ted, yet I appreciate his continuing efforts to keep the citizens informed and educated regarding local issues. I wish more BOA and SC members would follow his example.
People, while I agree with most of you that the resident is trying to pull one over on us, the BOA should vote based upon the law…not emotion. If we have a problem with the process we need to work to change the process.
Ted, what can us citizens do to make changes to the process where this doesn’t happen again. What can we collectively do?
It’s obviously a problem and it probably will get worse if we don’t control it. Can we do anything through Charter reform or anything else??? Can we submit something to the BOA or collect signatures to put s question on the ballot??? Is there anything we can do???
Tom, I am convinced we need at least one added full time inspector. A number of us are going to docket a budget resolution to that effect.
Is that all???
This is a city employee problem???
What about new enforcement policies??? What happens if the inspector finds someone who took it upon themselves to build another wall, what can the inspector do at that point???
Shouldn’t we be more pro-active??
You all said that the BOA don’t have any power to enforce, what can we do to expedite the issue?
I dont know if adding an employee would have uncovered this in this situation. Any other ideas floating around??
What Julie said:
“…there are plenty of valid reasons to vote No. And if “we let something stay for this other person” is a valid reason for voting Yes, we’re in big trouble. Might as well toss out zoning regs.”
To say that 15 Aldermen voted on “emotion” demeans the thought they put into their decision. I assume that aldermen vote with the best interest of the city in mind. There may be disagreement about what that means, but this isn’t a case of the smart lawyers against the emotionally charged Aldermen.
A legislator is expected to vote in the best interest of the city. If the courts disagree, then so be it. But we elect you to represent our interests, and us, and it just so happens that the complete disregard for zoning regulations is a growing issue in the city.
And while we’re at it, why did my neighbor have to remove an addition to his garage, with no recourse to a vote of the whole BOA? It wasn’t interfering with anyone’s life, didn’t add living space. He also didn’t apply for a special permit, but the addition didn’t comply with the zoning regulations so he was required to remove it. Are some people more equal than others? How do you get to be one of the folks who are more equal?
Jane, It may well be that your neighbor would have been granted a permit had he applied, but there is no way to know in hindsight. I think in discussions like this we tend to lose sight of the fact that we are imposing limitations on what a property owner can do with his own property, and risk putting form over substance. If the use is substantially consistent with the burdens imposed by the zoning laws, then there is little reason to reject the permit. On the other hand, if the use creates hazards to others and or does not substantially comply with zoning restrictions, it should not be allowed. If the deliberations are as enmeshed there with discussions of culpability, as here, then they are not focused on the appropriate issues. The Aldermen are elected to represent our interests, but they are also charged with upholding the law.
P.S. Other than the fact that the permit was not obtained, can anyone explain the reasons for denying the request?
It seems like the key issue is – had the developer applied for a special permit with plans for this exact wall BEFORE building it, would it have been granted “as is”, without any modifications? If the answer is yes, then that’s that. (Although I think fines should still be assessed – by the executive branch – for not seeking the permit, as a message should be sent.) But if the answer is no, I would assume there would be compelling reasons for the denial (safety, impact on abutters, neighborhood, etc.), and those factors don’t go away just because the wall already exists.
Tricia has it exactly right. Also important to the decision is that approval would add the design elements to the catalog of things now permissible in Newton. If other developers want to use the height of the tiers and proximity to the lot line in their developments, it would be absurd for a special permit not to be granted just on the basis that the design is not in place
So it seems that Setti needs to order the tear down? If so, that’s what needs to be done. It’s about precedent. Tear it down.
I have removed comments here from someone who is posting under two different pseudonyms. We allow anonymous comments here but no one, anonymous or not, can post under two different names.
When the Board of Aldermen is acting as a Special Permit Granting Authority (SPGA), it is performing a quasi-judicial function and not a legislative or administrative one. An SPGA has broad discretion, but must follow the law and base its decisions on the facts specific to each application. It means applying legally defensible standards and criteria to the facts–standards and criteria that consider the public good and may conflict with the interests of particular constituents. And it means exercising that discretion in reaching well-reasoned and factually supported conclusions of law, and rendering a decision that will survive a legal challenge. There is no precedential effect of a decision in one case influencing another because each petition is unique. In light of the above, the worst possible thing that a quasi-judicial body can do, in my opinion, is to use its power to “send a message.” Indeed, that would be an abuse of discretion.
Retaining walls, even when they are built in the setback, are not inherently bad. Newton is a city with a lot of hills. If you drive around town, you will see a lot of retaining walls, many of which predate our zoning, while others have been built by right or with a special permit. They are mostly on the borders of property or in the setback. If you look on Newtonville Avenue or Austin Street, for example, you will see many houses with retaining walls abutting the sidewalk or street because they are built on the side of a hill. On High Street in Newton Upper Falls, there are a number of houses with retaining walls as high as 12 feet on the back side of the property to provide a level yard and space for off-street parking. There are also many retaining walls in back yards on the south side of Newton, which improve drainage and prevent runoff and flooded basements while providing a yard or patio for families to enjoy. And, yes, a lot of them extend into the setbacks. On some streets, literally every home has retaining walls in their front or back yards because of the challenging topography.
In the past, builders constructed a series of tiered, “wedding cake” retaining walls each under three feet high in order to circumvent the so-called “3 foot grade change” rule that required a special permit for walls over 3 feet tall. The BOA amended the zoning ordinance to require a special permit when retaining walls built in the setback exceed 4 feet high and then defined “retaining walls” in a way that was intended to prohibit the wedding cake retaining walls. For the most part, it works well. But there are builders and homeowners who, intentionally or not, violate the zoning in order to maximize the buildable, usable space on their lot. Occasionally, the city will order structurally unsound retaining walls to be demolished as a safety matter. Whether retaining walls are aesthetically pleasing is a subjective matter, which is why the BOA often requires screening as a condition of a special permit.
Significantly, on Lovett Road, it was the city building inspector who discovered that the retaining wall on Lovett Road did not comply with the zoning ordinance. The neighbors had not previously complained about the retaining walls, and as Ald. Lipof pointed out, most of the abutters were and are fine with it. It is important to keep all of the above in perspective when we make our decision. While the knee jerk reaction might be to punish the homeowner and make him tear it down, the law requires that he be given an opportunity to legalize it with a special permit. (Actually, only a very small portion of the wall is illegal but as the engineering department found, partial removal could lead to erosion or other problems for the owner and neighbors.) And we should approach this matter and make our decision fairly and with an open mind, based on the facts and law, and not out of a desire or intent to mete out punishment.
From reading this string of comments and also being a part of the process from the beginning, I can only add that the wall issue as presented very eloquently by Alderman Rick Lipof, and thoroughly explained in this blog by Alderman Ted Hess is as presented. It’s not overly complicated and should be approved.
As to the comments about bigger things to work on, I caution that we represent the residents and the city in cases such as this one, and there is nothing bigger than how we treat property owners. My feeling is that regardless of the income/wealth level of the resident, the city has to be “very right” to cause a resident to take an action that will cause the owner to suffer a financial burden.
There are over 33000 residential property stories out there and we have to respect all of them.
Have a great Mothers Day Weekend.
Jim
I don’t have any interest in punishing anyone and I don’t hear posters say they want retribution or punishment. I just want the BOA to ensure that residents comply with the ordinances/laws/regulations it has created and in this case, it just so happens that they hold the cards. This resident didn’t apply for a special permit, expects to be exempt from the process other residents are required to go through, and that’s disturbing. That the BOA thinks it’s fine to disregard the law is equally disturbing. In a civil society, part of the social contract includes the concept of citizens complying with laws without someone watching over their shoulders.
The issue is that he broke the law, and now the BOA plans to sanction that behavior. Whether people realize it or not, this decision will have an impact on many residents in the years to come. This decision will give any developer or resident the right to flaunt regulations that affect YOUR home and property. I just spent 15 months monitoring a project in which the developer broke multiple regulations that had significant impact on my family’s health and quality of life, and now I find out that all along certain Aldermen assumed it was my responsibility as an abutter to oversee this scofflaw. What this says to me is that the Aldermen don’t really care if laws are broken unless their email boxes are full. Something is really wrong with this picture.
Jane, The BOA aren’t the police or prosecutors. So, unless someone can make a cogent argument that this project isn’t in harmony with the neighborhood and poses some genuine risk as opposed to speculation about possibilities, the homeowner is entitled to an opportunity to bring the property into compliance or deserves relief from the city’s limits on what he may do with HIS property. If the BOA cannot articulate legitimate reasons for denial based on the facts of this case and none other, we will waste tax dollars defending the indefensible. Zoning laws aren’t like criminal laws with clear rules and penalties. They are limitations on the rights of property owners so they are not cut and dried. Rather, individual cases rise and fall on their own merits. I have not heard a single argument reason to deny this other than that he didn’t follow the rules. In plain terms, that doesn’t cut it and that too is the law.
And, if it isn’t eminently clear from Ted Hess-Mahan’s thoughtful and outstanding posts, in the case of a special permit the issue is NOT whether the individual “broke the law” but whether the project is worthy.
Thank you, Jim Cote, for being willing. like Ted, to explain your reasoning. But I can’t agree with you on a couple of points. Others have said that whether or not the owner can afford to fix it shouldn’t matter for purposes of granting a Special Permit; it should just be whether what’s proposed is in the public interest. So the fact that not granting the Special Permit will impose a financial burden, I think should not be a factor. Lots of things about zoning impose financial burdens, for the good of the public in general. And in this case it seems the person brought the extra financial burden on himself by deviating from the submitted plans.
I think Scott Lennon put it most succinctly when he said he wasn’t going to vote to approve a structure 18″ from another property. t don’t think it’s respectful of the other 33,000 property owners to allow that. How many people would actually be fine with a hillside being gouged out in close proximity, that wasn’t that way when they bought their house?
Is a lack of objection from abutters enough to make it okay? People may be afraid to antagonize someone they have to live next door to, or maybe they think they might want to do the same thing themselves, or maybe they’ve just seen too many cases where neighbors’ objections didn’t make a difference. Lack of objection doesn’t make it a good idea, especially environmentally. Besides the wall itself, there was a question in the Planning memo about whether the lot would meet open space requirements if the area of pavers in back was not fenced off from the driveway; what’s up with that? And Bob Burke, who was at the earlier meeting this winter, says other neighbors did object to the wall.
My husband and I at one time talked about putting in a retaining wall in a part of our back yard. I believe he spoke to a couple of landscapers about it. Never once did it occur to us that setback rules apply to retaining walls, and no landscaper ever mentioned it. We would have been looking at a very small wall — not even 10 percent of the cost of the retaining wall in question here – and eventually we decided to try something less expensive. But we would have been very close to our neighbor’s yard — maybe a couple of feet.
The city shouldn’t arbitrarily decide that it wants to make an example out of one particular case, regardless of its size or who is going to live there. It could/should charge fines for not seeking the proper permits, and require structures be torn down only when when they have an adverse effect on another property.
In my scenario, if we had built the wall, I’m guessing Inspectional Services wouldn’t know until the house was sold, unless we were doing some other work on the house.
Julia,
As someone who has been through the Special Permit process for retaining walls within the side setback, I have a couple of comments.
1. When Alderman Lennon said he could not vote for a structure within 18″ of a neighboring property, was he making a general statement or talking about this particular instance? In our case, the wall goes right up to the property line. We did, however, get agreement from our abutting neighbor that he was OK with this.
2. The Special Permit process, by its very nature, invites comment from neighbors. So, yes, the lack of objection from neighbors should be a major consideration in granting a permit, absent problems of drainage, erosion and safety, and other planning requirements being met. My observation of the Land Use Committee at work is that they do take the comments of neighbors into account, and can and do attach reasonable conditions to the granting of permits, such as having an approved landscaping plan.
@Gail, your experience is not uncommon, and is a reason the courts allow homeowners to remedy zoning violations by seeking a special permit.
@Jane, for some reason, you continue to resist the separation of powers mandated by our City Charter. The BOA passes zoning ordinances, and the executive enforces them. And both branches are expressly prohibited from interfering in the role of the other.
@Julia, Scott Lennon’s comment is very odd, since the BOA has unanimously approved many retaining walls on or very near the property line on first call during my 10-year tenure on the board. Robert Welbourn’s was just one of them.
@James Cote, please allow me to reiterate your point that the BOA should treat everyone who comes in for a special permit with the same respect. Whether the project is a mudroom or a multi-million mixed use project, it is important to the applicant.