Ellen Ishkanian has a story in the Globe today about the Lovett Road homeowner who built an elaborate retaining wall in his year without obtaining the required special permit and engineering approval from the city.
Inspectional Services Commissioner John Lojek says it’s a problem that happens repeatedly across the city.
“I think a lot of people think it’s easier to build first, apologize, and then get permission, but the aldermen have a say in that, and they don’t have to give forgiveness.”
Should the aldermen make the owner remove the wall? Vote in our poll and discuss in the comments section.
[polldaddy poll=”7965208″]
This house is built on a hill that originally had a house on it. If there were drainage issues originally, then Pinkashov should have recognized same and dealt with them. The house he designed for this site was a design for a flat site taking zero account for the topographic anomalies confronting him. He apparently hired repeatedly, incompetent professionals saving himself money in the process it can be assumed. He blames every one else but himself now, that were inflicted upon him by his consultants.
This developer tried to sneak through the process, building 3 retaining walls 3′- 11″ tall each ( 4′-0″ being the maximum limit ) within his setback limit. He blamed his surveyor, his general contractor, and his landscape contractor who were nowhere to be found at the land use hearing. He also took occupancy of the property without an occupancy permit. He also covered more of his lot than he legally had the right to by increasing the paving surface he had originally been permitted to do ( exceeding lot coverage rules ). And now he has convinced the Land Use Committee that it would be impossible to rectify the situation and that to do so might cost him his profits. This is an ugly cement block wall, the least expensive retaining construction possible, of no distinction what so ever. Had he ever heard of fieldstone? Land Use now, it seems, is willing to let him off with a slap on the wrist, no fines, and the instruction to plant some ivy. The message to the development community is that it’s OK to make design changes on the back of an envelope from the tailgate of a pickup truck, so long as an overworked ISD doesn’t catch you. Permit drawings really aren’t scrutinized that much anyway, unless a neighbor might complain, and then even if they do they wont fine you because the city law department won’t pursue any objection because they are overwhelmed with more serious issues. Enforcement and the Special Permitting process ( where almost every one applied for, is granted ) is currently a farce. What is the point of writing laws and regulations if you don’t or can’t bring yourselves to enforce them ?
I was at that same Land Use Committee meeting with Blueprintbill and I recall what was said there exactly as he does. The Globe article quotes one nearby resident who thinks the retaining wall should remain as is and that it adds something positive to the neighborhood. I’m surprise this would have been highlighted since two elderly neighbors who live in a small frame house across the street and one other owner from somewhere on Lovett Road felt quite differently in their testimony. They were bitterly opposed to the retaining wall and other features in and around the project. The Globe should have made an effort to contact these folks for a comment. The impression was left that other neighbors on the street had no problem with how this development was planned and constructed. This clearly wasn’t the case at all. It may be a small item in the broader scheme of things, but the elderly neighbors also complained that powerful security lights from the property in question were shining directly into their windows. I can’t recall if they claimed the lights were being aimed at them directly or if they were just so powerful that they were having the same effect. Regardless, there’s something wrong when a developer or homeowner has no curiosity about the effect that his actions will have on his neighbors.
I’m confused. Is the article saying the home was built by a developer who claims not to know the zoning rules for the town he chose to move to? Why fight this — there’s something more valuable at stake, it’s called professional integrity.
$240,000 for a wall made up of retaining blocks that look like the $3 blocks you can get at home depot? Really?
Hoss,
Why fight this – ?
The developer is fighting this because this is the nature of the development business. You build as much as you can, as inexpensively as you can, so as to maximize the profits of every endeavor. I have a new house next door to me, as yet unsold, without a single rod of steel in the footings or foundation walls. I watched the entire concrete pour. Now, after this past winter, before even an occupancy permit has been issued, an exposed above grade portion of a foundation wall has multiple cracks and has been plastered over to look right for the sale. Professional Integrity is an oxymoron with many, it would appear, in this community. $$$ are what it’s all about, and yet our city fathers want to encourage ( and abet ),this profiteering, with lax ( or inadequate ) construction supervision and zoning laws that allow advantages for developers and penalty to neighbors ‘lucky enough’ to live nearby .
Is the property owner a homeowner who lives and intends to keep living in the house, or is he a developer who plans to sell the house as soon as the retaining wall issue is settled? He’s one or the other, not both. And I think that’s an important distinction in how the City should approach a resolution. If he’s a developer, screw him. It was a business venture and he should have known the rules. If he’s a legitimate homeowner, I think he’s entitled to leave the wall in place, apply for a Special Permit, and have the outcome determined through that process.
There are three issues:
1. What is the message sent by ‘forgiveness’? That anything can get built without consequences. Developers and owners will take note and build what they want.
2 Why wasn’t the retaining wall caught as it was being built? Are City inspectors so overwhelmed that they cannot protect the neighborhoods where we chose to live?
3. Why would anyone be determined to destroy the natural contours of the geography instead of respecting them?
Side setback exists for a reason, it should never be waived lightly. The landowner/developer should put back 12 feet of the original terrain (or something close to it) on one side and 13 1/2 feet on the other side. If the city wants to grant a variance for having changed the contoured of the land inside the setback, maybe that’s negotiable.
I agree with Mike Striar. If this is a mistake by an owner who intends to occupy the home, as opposed to a developer, then the equities favor the homeowner. When I look around at what is permitted to go in in this city, where developers are allowed to tear down homes and they fill nearly every square inch with poorly constructed ostentatious McMansions, it seems awfully callous and cynical to make an example of this person. If an example is to be made, make an example of a developer who is cutting corners for his bottom line, especially since it sounds like the city just maybe wasn’t as on top of this as they should have been.
Doesn’t the article describe the petitioner as the homeowner (moving from Needham) and an “inexperienced builder”? Maybe he needs to run for office to determine his residency, but doesn’t builder mean he does development? Why he can afford $240,000 for a landscaping attraction and nothing for a lawyer is confusing. The BoAs main concern should be with left and right abutters, impact on them, and making things right for them because obviosly there’s no going back to pre-construction state in terms of a stable topography.
BTW — someone logically fed this story to the Globe — there’s a reason for the focus. I can’t figure out why the “inexperienced builder” would want the focus, I would think it’s someone in Newton gov’t that wants the focus. Not fair.
I’m also aligned with Mike striar’s position.
@tomsheff, @lisap, @Mike Striar — what are you all thinking?!? Any amateur developer can claim intent to live at a residence. Some years back, we had an amateur speculator in our neighborhood spewing that baloney line. We didn’t trust him. Of course he flipped the house the moment it was finished (shucks, his intentions changed). This landowner’s actions, too, already speak for him.
At the beginning of the first hearing Pinkashov described himself as a first time developer, throwing himself at the mercy of the Land Use Committee, begging their forbearance for his lack of experience, and promising not to make the same mistakes again. As hearings progressed experience told him that he should claim to be an owner occupier. by then had already taken occupancy of the house without a permit. This normally subjects one to a $1,000 fine. Not levied yet to my knowledge !
It is common practice, as I understand it , for small time developers to take occupancy as soon as possible to start a 2 year clock running for a $250,000 per person ( husband and wife =$ $500,000 ) capital gains tax write off with a quick sale just after the time 24 month time period has elapsed. A George Bush tax ‘adjustment’. Anyone out there who can confirm this?
Greg, so glad you posted this, and that Globe covered Wanted to do a follow up on the earlier post about this when I read in a comment in an unrelated thread that Land Use had passed the special permit, but really really really had to work on my taxes before Virginia trip I’m on the way home from.
I second Isabelle’s 3 questions. And I don’t think it matters whether it’s a developer or ‘real’ homeowner. It should never have been built. I don’t feel sorry for anyone who can afford to spend $240,000 on a wall. I’m rather appalled that Land Use is not concerned about the message this sends. That the answer to the question “if you build it, they will approve it?” is apparently “yes.” It seems that like Ado Annie in Oklahoma, Land Use is the committee that cain’t say no.
http://youtu.be/VprmD6oXpFQ
I think their sympathies are misplaced.
What Julia and Isabelle said. The special permit/zoning ordinances apply to everyone or they apply to no one. Too many people know about this particular situation at this point to allow it to move forward without serious consequences to the city in the future. How does the Land Use Committee say no to the next scofflaw who comes along claiming ignorance of the ordinances?
This developer could afford a $240,000 retaining wall and that puts the Land Use committee in a tough spot. Are only very wealthy owners are permitted to disregard the law with the stated approval of the Aldermen, or do we all have the same right?
Looks like Julia got the scoop on this one.
Mike, lisap, AFAIK the city has one set of rules for developers and for homeowners (though those groups do overlap) Can one group be given preferential treatment without exposing the city to some sort of legal action?
As the victim of these shoddy developers’ practices, I’m definitely in favor of strict enforcement. The developers who ignore the rules are the same ones who don’t care about the quality of the buildings. If Newton’s building inspectors had been more attentive a couple of decades ago, the place I later purchased would have had to be rebuilt for reasons of safety.
It’s a shame so many are distrustful of their neighbors. Oh well, I suppose it’s a sign of the times. We’ve all been burned by developers. I had to take legal action against a developer who was damaging my property. So I understand the frustration many feel.
But I’m one who believes you should always look to motive. So I’ll say again… If he’s a speculative developer, screw him! Let him play Gorbachev and tear down the wall. But if his intent is to live in the house, and he’s willing to stipulate long term residency as part of a new Special Permit application, then that specific language should be included, and the process should go forward. If the permit is granted and the residency term not met, the permit could be revoked.
Whatever the intent, I can’t understand why he chose to stand in front of the BoA committee and not ask a lawyer to do it. For example, parts of the ordinance section 30-5 referred to in this matter had been amended in 2013, after the land was bought. Maybe that has nothing to do with this, maybe it does. Now after failing to gain sympathy with the committee (apparently, since he needs more steps to get a ruling), he’s saying things like he personally takes responsibility and if the permit is not granted, litigation will follow. Those both are stupid words from a petitioner. Let a lawyer talk
And don’t forget that this likely became a Globe story because someone fed it to the reporter. I don’t think she spends her mornings reviewing committee notes from Newton. So is a BoA member making a loud example of this petitioner? That is highly possible and if so it’s shameful
Mike, and then what, if the permit has to be revoked? Would the wall have to be torn down then? And if not, what’s the point of your idea? And how would you define long-term residency? Could anyone promising to be a long-term resident get a Special Permit for an otherwise non-compliant structure, or only if they built first then asked? However long the people stayed in their houses, we the city would still be left with more and more non-compliant structures. Your proposal sort of negates the point of zoning.
When the Board of Aldermen is acting as a special permit granting authority, it is performing a quasi-judicial function and not a legislative one. That means that the BOA must follow the law in granting a special permit, and must be fair and unbiased in making every decision. Because the special permit goes with the land, the BOA must make its determination based on whether the project itself satisfies the criteria in the state zoning statute and the local zoning ordinance and not whether the applicant is worthy of receiving a special permit. Moreover, unlike a variance (which the Zoning Board of Appeals has jurisdiction over), whether there is a hardship does not factor into a special permit decision.
Accordingly, the BOA cannot make its determination based upon prior zoning violations, the character or reputation of the applicant, or other factors not related to the relevant criteria in the law. See Dowd v. Board of Appeals of Dover, 5 Mass.App.Ct. 148 (1977). In other words, the BOA is not allowed to delve into the equities and must make its determination based solely upon the facts and the law relating to the project itself and not the applicant’s intent or past actions. Otherwise, every public hearing and working session would devolve into deliberations about the worthiness of the applicant instead of the specific merits of the project.
As Commissioner Lojek states, the problem of an applicant who asks forgiveness instead of permission comes up far more often than any of us would like. For example, the BOA recently gave special permits to the Village Cafe and the Rox Diner to allow additional seating, despite the fact that both applicants had already exceeded the allowable number of seats prior to seeking a special permit. It has also come up before in connection with the construction of retaining walls. Indeed, some of the changes made in the zoning ordinance over time regarding review and approval by the engineering and inspectional services departments were in response to past problems with retaining walls that caused erosion and drainage problems.
The relevant consideration is whether the setback is an appropriate place for the retaining wall and whether it will adversely affect the neighborhood. In the past,the BOA has denied a special permit and required that retaining walls be taken down and reconstructed legally where the city engineer has determined that the wall as constructed created a safety hazard. In this particular case, the City Engineer advised against requiring reconstruction of the wall (which was legally constructed except for the portions located in the setbacks) because it could cause erosion and drainage problems. While the BOA still has discretion to deny the special permit for permissible reasons, ironically, in this case, denial could actually lead to a more adverse impact on the neighborhood than allowing a special permit with conditions requiring landscaped screening, mitigation to prevent eroision and drainage problems, etc.
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.
Ted Hess Mahan — In the end, elected members vote yea or nay, they don’t write a brief on how they individually came to the vote. So all of the prejudices do matter, the committee head just needs to control the discussion. How does the basis of a denial come into play if it’s not recorded?
Because, Hoss, the reasons for denial still have to be given in the board order, albeit in less detail than is required for approval, which is why the Board Rules require that aldermen give their reasons for denying a special permit. On appeal, the court must then decide whether the special permit granting authority abused its discretion in denying a special permit. The denial will be upheld unless the decision was based on a legally untenable ground, or was clearly erroneous, unreasonable, whimsical, capricious or arbitrary.
Ted,..you said, “The Board of Aldermen must follow the law”. The reasons for denial are, that the set back regulations ( “The Law “) , are in violation . Enforce ” the law “. It is so obvious as to border on the absurd.
@blueprintbill, respectfully, that is not what following the law means with respect to granting special permits. The Massachusetts zoning statute requires that cities and towns must allow certain uses and structures by special permit in all zoning districts. A retaining wall is a “structure” within the meaning of the Newton Zoning Ordinance that may be allowed within the setback under a special permit. Each special permit requires a case by case determination as to whether the proposed retaining wall would be appropriate based on the topography, drainage, erosion, impact on the neighborhood, etc. To deny a special permit solely on the basis that a retaining wall would not be allowed within the setback by right would, in fact, “border on the absurd.”
@Julia– Ted appears to be suggesting that adding a term of residency as a condition for this Special Permit may not be permissible. Conceptually the Special Permit could be revoked if the residency term was not met. That would render the house non-transferable unless the wall came down. So the incentive to stay through the full term of residency would be strong. Obviously this property owner didn’t play by the rules. Equally as obvious, he has the right to apply for a Special Permit. Would you have him tear down the wall before applying for the permit, or wait for outcome of the process?
If the BOA does nothing or forgives the homeowner, then watch out. We are going to have a lot of FIRST TIME DEVELOPERS taking advantage of Newton. When we did our little home addition, we did everything by the books, and hired a reputable contractor who made sure the City inspected everything that needed to and we went before the groups we needed to.
If I abutted this property and was now adversly affected by the retaining wall (water in my basement) I would be screaming angry!!!!!!
This guy is trying to scam his way out of this instead of initially doing it the right way. He knew the right way was expensive and potentially full of adversary and he tried to do the easy way. Now he is claiming ignorance. DONT LISTEN TO HIM. He is acting his way out of this to save himself money and grief!
He should be forced to start over again and do it the correct way.
Thanks for the clarifications @Ted Hess-Mahan!
– In the document the landowner claims: “hiring a landscape architect is not feasible from a cost perspective.” Just want to point out, a landscape architect can be retained for about $5,000 — possibly much less if it’s just a planting plan.
– Do abutters have a case to file suit if the city does not bring the project into compliance? It seems to me, fence or no, a 18″ setback to the precipice next door is a pretty obvious safety concern. I worry that the City could open itself to liability if it grants such a special permit. If an accident or injury results from it later, could we the taxpayers could be on the hook if the BoA is found neglicent in granting the permit?
Let’s see, last comment first. I think other people have made this observation, but the burden shouldn’t be on the abutters to have to hire lawyers to enforce zoning code, it should be the city’s responsibility. And if I were an abutter, I would certainly feel adversely affected by those retaining walls being so close to the property line. The wall may be okay for now, but what about in 2o years? What if they are not stable then?
@Mike Striar, IF it’s the case that removing the retaining wall would harm the neighbors more than leaving it, my solution would be to construct the wall that they could have done by right, and fill in the space in between legal wall and illegal wall, covering up the illegal wall and restoring the contour of the hill to what it should have been, and replanting it with vegetation. That would avoid encouraging more disregard of zoning regulations by letting the violation remain, and give the abutters the security of two walls to hopefully prevent any future collapse of their own hillsides.
By the way, did anyone on Land Use ask, or did Mr. Pinkhasov ever explain, why it was such a surprise mid-construction that he’d need more than a 4 ft wall to hold back 11 or so feet of earth? That’s simple geometry. Or was the patio in the plan going to be much smaller, requiring only a shorter wall, and they changed that plan on the fly without notifying Inspectional Services either?
And if prior drainage was the true concern, a French drain is a much better way to deal with that, especially if you’re doing a teardown. The teardown across from me has one: downspouts into plastic pipes buried along the foundation, that feed into a collection tank buried in the front side yard. All out of sight. That could have been done at Lovett Road, avoiding the unsightly wall. (He also probably exacerbated any drainage issues by cutting down all those trees whose roots were absorbing rain, and replacing other vegetation with pavers.) Or, if he wanted a flat yard, he could have taken what he spent on the old house, the new house, and the $240,000 wall, and bought a house with a flat yard!
…if he wanted a flat yard, he could have taken what he spent on the old house, the new house, and the $240,000 wall, and bought a house with a flat yard!
Yeah, Julie! Some people have too much money and not enough common sense.
As I stated earlier, I was present at that now infamous Land Use Committee meeting and caught the whole show with this property from beginning to end. Others have commented on specific items in much more depth than I possibly could, but I think my overall impressions tell something about what really happened that night.
I’m usually pretty mild mannered, but I left the chambers that evening in a complete rage and I think several of the aldermen were as upset as I was. I felt violated and I don’t use that term lightly. I felt suckered. It was pathetic listening to the not so artful dodging and nonsense that went on, –an insult to the intelligence of the both the Aldermen and spectators like myself. I appreciate what Ted and others have said about some of the practical and legal obstacles to denying a special permit in this instance, but I’m left with the impression that a decision to grant this special permit somehow diminishes both the City Government and the people who live here regardless of what the legal ramifications are.
A month or so back, the City made the decision not to forgive $100.00 parking tickets that were given to several motorists who parked in an “unmarked” handicap area in Newtonville. The motorists who parked there obviously didn’t know it was a handicapped parking area and the City failed to mark it as so. For the life of me, I can’t understand why the owner on Lovett Street might be able to skate free while the hapless motorists get nailed.
Enforcement is the responsibility of the executive and punishment is the responsibility of the courts. When a zoning violation is discovered, the City has the option of assessing fines for each day the violation continues and prosecuting the case in court. Generally, the executive will give owners the opportunity to seek a special permit from the BOA if they are eligible to apply for relief. It the special permit is granted, ISD ensures that the owner complies with the conditions of the special permit. If it is denied, ISD will require that the zoning violations be corrected and/or assess fines for noncompliance.
A few years ago, the City prosecuted a zoning violation which resulted in the owners being brought in and processed including fingerprinting. The owners were given the option of correcting the violation and seeking a special permit, with the understanding that if they were denied they would have to bring the structure into compliance and demolish the noncompliant portions. Ultimately, the BOA granted a special permit that corrected the zoning violations and imposed numerous conditions to mitigate the impact of the project and to prevent the owner from reconverting the structure. So it is not as if the owners were not punished. My point was and is that the BOA is not allowed to impose punishment only to grant or deny special permits.
In the case involving nonconforming retaining walls, where the engineering department determined that the existing wall constituted a safety hazard, the owners were also given the option of seeking a special permit. ISD issued stop work orders and gave the owner the option to come in for a special permit. Land Use did not approve the special permit and the owners was allowed to withdraw it without prejudice to refile it once he had plans which were acceptable. Ultimately, the owner came back with plans that the engineering department approved of and a special permit was granted requiring that the original wall be demolished and a new one built consistent with the plans and conditions in the BOA’s board order.
So, just to review and correct some of the misperceptions evident in the above posts, it is the executive’s job to enforce zoning not the BOA. It is the courts’ job to punish zoning violators. It is the BOA’s job to review and approve special permit applications–or not–based on the criteria in the zoning statute and city ordinances. To the extent any of you have a beef with enforcement, I suggest you take it up with the executive branch.
Bob, very good point and inspired comparison that never even occurred to me.
I’d love to see a “before” and “after” of that hill.
Was it to fit in the patio? How much land would the landowner have sacrificed if he only braced the bottom of the hill?
From the picture in the Glob, anyone taking a bulldozer to that hill had to know that they were pushing limits.
Excellent posts Ted Hess-Mahan. Thank you for clarifying the issues and the decision making process.
Thanks, Lisap. I should add that people often ask why the BOA would grant a special permit where there is a zoning violation. One important reason is that the BOA can require conditions that mitigate the impact of a project like this, such as landscape screening, fencing, drainage, etc. It should be noted that without a special permit, the owner could still build very similar retaining walls that do not extend into the setbacks, without any landscape screening or fencing at all. This gives the BOA and ISD more control over the project review and approval process that would not otherwise be available.
Make him pay a fine equal the greater of restoration costs or 50% of the unlawful “improvement” costs (in this case, $125,000.)
Any fines levied and collected should be deposited solely into a to-be-established “Newton Abutters’ Litigation Fund” for the common defense of abutters against zoning and building infractions.
Developers and owners will recognize that the building and engineering departments’ failure to enforce the zoning and building regulations will not be tacit, non-compliance “approvals.”
The “Newton Abutters’ Litigation Fund” will serve as a “canary in the coal mine” to remind the Mayor’s of his/her lax oversight and enforcement of the the local regulations and ordinances.
I’m sorry Ted, but the BOA asking for the developer to plant ivy to cover the wall hardly counts as landscape screening and is truly a slap on the wrist.
There are so many other examples in recent times where developers have just gone ahead and then been told they’re a bad boy but we’ll let you go this time. Just look at Pine Ridge and Goddard Rd where whole houses were built which shouldn’t have been. In the case of Pine Ridge the developer avoided the potential for it being torn down by buying land from a neighbor to bring it up to old lot standards which was then approved by ISD. I’ve talked to a land use attorney on that situation and that approval should never have happened as any change to the lot boundaries automatically means it should have been required to meet NEW lot standards, i.e. that house strictly speaking is now non-compliant… And Goddard Rd, well it’s still in litigation, but it would not surprise me if things end up favoring the developer who went ahead and built the houses well knowing that they could be deemed illegal builds and require them be torn down. When will this type of behavior end?
I’m with @Bob on this one. I was in the same meeting, and it felt like we’d been played as a City
I keep repeating myself, but it’s so true.
A famous quote from Frank Lloyd Wright,… ” Physicians will bury their mistakes, Architects ( and developers it seems ) can only plant ivy “.
Peter is right on the mark with his comment. The City’s attitude, which Ted nicely reiterates, is that the 0nly time any punishment and remediation for serious violations like this one, and the ones on Pine Ridge Rd., and Goddard St. will occur is if abutters sue either the developer or the City. Why should abutters have to spend tens of thousands of dollars of their own money because ISD and the City’s legal department won’t do their jobs enforcing BOA-enacted zoning ordinances? The recent Tab article on the shameful Chestnut Hill Square development on Route 9 with the architectural drawings showing the storefronts facing the road is just the icing on the cake of the City shirking its responsibility to monitor and enforce zoning and building plans. When is this going to change?
@Paul: The comparison to Chestnut Hill Square isn’t fair here.
For one thing, the developer went through all upfront the legal permitting processes.
Additionally, the the city has not “shirked” anything. It is holding the developer accountable and said it won’t issue the occupancy permit until all commitments are fulfilled.
Finally, the developer is on record saying they fully plan to do the work and offered a very plausible explanation that the work was delayed due to an unusually harsh winter.