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State's highest court declares Brookline couple can add dormer to their home

The Supreme Judicial Court today upheld a decision by Brookline's Zoning Board of Appeals that the owners of the topmost condo in a two-family house on Searle Avenue can add a dormer to their roof, and roughly 630 square feet of living space.

The zoning board approved the dormer in 2016 after the town planning board and most of Jason Jewhurst and Nurit Zuker's neighbors said the request was pretty minor and that, in fact, the dormer would make their home look more like all the surrounding homes.

But, of course, the owners of one neighboring home objected enough to sue to block the approval, saying that because the house didn't conform with its current zoning - the lot is too small and the house too dense - adding more living space would make the house even more non-conforming, which should have required Jewhurst and Zuker to apply for a variance, which is harder to get than the special permit the zoning board approved.

The neighbors lost in Land Court, then felt the matter was important enough to appeal to the Supreme Judicial Court.

As it has done in other, similar cases, the SJC first complained about the complexity of the section of state zoning law that deals with properties that don't conform with their current zoning, which has lots of clauses that can confuse even the hardiest of justices, never mind the general public.

But with that out of the way, the state's highest court continued that the law does, in fact, let local zoning boards issue special permits in cases such as this one, that while the plaintiffs were correct that the Brookline town zoning code pretty obviously would normally require a variance, that's a tougher standard than set by the state law and in zoning cases, state law trumps local code, so Jewhurst and Zuker can now set about hiring contractors to add that dormer.

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PDF icon Complete dormer ruling178.33 KB


This is the default situation for tons of existing housing stock around here, and it's a nice illustration of the absurdity of our zoning regime that this was brought forth as an argument in a case that went to the state Supreme Court.

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It's effectively the situation for ALL existing buildings.

What was it, 6 buildings in Somerville that would be allowed to be built today?

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22 buildings as of 2016, although they didn't take into account parking regulations so the actual number might be less than that.

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Great example of how choking our current zoning laws are statewide. NOTHING is allowed as of right and in many communities across the state, existing housing supply is non conforming to current zoning requirements. If we're going to get ourselves out of a regional housing crisis, more housing needs to be allowed as of right so we don't get into lengthy, costly and frankly complete bull***t litigation like this one.

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If the law as written plausibly supports the arguments of a particular party. You may disagree with the efficacy of the legislation that created the law, but if the law as written says something, and a party acts contrary to that in some matter, it's not BS for someone to sue because the statute was not followed.

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Read the decision and the reporting on this becoming a major problem statewide. This isn't some "developer" commentary but comes as a result of years of MAPC research. https://www.wbur.org/cognoscenti/2018/07/23/affordable-housing-boston-ra...

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This must make for some pretty tense block parties. Yikes.

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15 neighbors wrote in support. One sued and created this colossal waste of time and money. Shocking surprise: they are a professor of architecture. Oh...with a dormered roof..

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Who works hard to shut down new buildings in JP from whatever his quasi-representative board is.

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They are never welcome at parties anyway. They tend to be jerks. Gossips, liars ...

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This is why we have a housing crisis.

We need a "neighbors need to MYOB" law.

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NIMBYs gonna NIMBY! And they seem to have a LOT of free time on their hands.

It seems like a sign of the times where there are many people who derive pleasure on denying other people happiness rather than just seeking happiness for themselves. It's such a Trump mentality that I can only win if other people are losing. It's really disgusting and I'm tired of it.

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Interestingly both the people wanting the dormer and the ones that do not appear to be architects. They do not work for the same firm. I wonder if this is more than a simple neighbor dispute.

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...but even I know that wood houses with peaked roofs are totally passe, dormer or no dormer.

Houses should be concrete with flat roofs - with a roof garden and solar panels.

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Those are the names of the plaintiffs, so that you can be certain to not give either of them a (expletive) nickel, should they ever seek any kind of assistance later in life.

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