Appeals Board Sued Over Neighborhood Battle

By: William F. Galvin

The tight confines of these abutting properties on Braddock Street and the desire to construct an addition

has led to a lawsuit against the board of appeals. WILLIAM F. GALVIN PHOTO

HARWICH — The board of appeals has been sued over the issuance of a special permit allowing the construction of a two-story addition on a single-family dwelling on Braddock Street.

The special permit was issued to 34 Braddock Lane Realty Trust, Bruno Visco and Sandi Conroy trustees. The suit was filed by the abutters, Paul McCourt, Peter McCourt and Brian McCourt, property owners at 36 Braddock St.

The appeals board held public hearings on June 27 and July 25 before granting the special permit. The suit was filed in Barnstable Superior Court on Aug. 27 by attorney Joel E. Faller of The McLaughlin Brothers, P.C. a Boston-based law firm. The suit charges the decision exceeds the authority of the board.

The McCourt property directly abuts the trust property, which consists of an approximately 10,012 square foot parcel with a single-family residence in the Residential High Density-One District near Bank Street Beach. Zoning in that district requires lots to maintain a front setback of 25 feet and side and rear setbacks of 20 feet and to have 150 feet of frontage and 40,000 square feet of land area. The trust property has no frontage and obtains access over an easement across the McCourt property. The building has a front setback of only 9.2 feet and a rear setback of only 6.2 feet.

The buildings currently on the property are pre-existing and non-conforming because they do not conform with the setback requirements, do not have any frontage along a public way and do not meet minimum lot size requirements, according to the suit. The proposed additions would remain non-conforming with the setbacks required under the bylaws and would be more non-conforming than the existing structure. The proposed addition would make the structure higher and intrude into the setback proximate to the McCourt property, the suit claims

Such existing, non-conforming structure under the bylaws may not be made more non-conforming “unless the board of appeals issues a special permit for the alteration or extension after finding that the alteration or extension will not be substantially more detrimental to the neighborhood than the existing nonconformity,” the suit reads.

“The addition would make the structure on the trust property more detrimental to the neighborhood than the existing conditions, specifically impacting the McCourts, because it will increase the height and overall size of the building that faces into the back of the McCourt property and will result in an increase of traffic driving over the McCourt's property to access the larger house,” the suit alleges.

“The trust's property's encroachment into the front setback also interferes with the McCourt's interest in the McCourt property. The house on the trust property is already closer to the McCourt property than the bylaw allows. If the addition is constructed, a larger amount of living area will encroach into the setbacks and a higher structure will exist proximate to the McCourt house. This will be more detrimental to the neighborhood, specifically impacting the McCourts, because the larger structure within the setback area will more greatly interfere with the McCourt's privacy, light and view.”

The suit states the decision explicitly found that the addition would “intensify an existing non-conformity.” The decision made no specific findings addressing the impact of the increased nonconformities in relation to the frontage, setbacks or lot size, nor was there specific findings as to the impact on the McCourt property.

The suit seeks to have the decision to grant the special permit annulled and a declaration issued stating the permit should not have been issued and is null and void.