MA Land Court Upholds Granting of Variance to Rebuild Deck

This post was authored by Joshua Vayner, Touro University Jacob Law Center

Originally, 99 and 101 Commercial Street were designated as a single, waterfront property between 1989 and 2010. In September 2018, the Zoning Board of Appeals of the Town of Provincetown in Barnstable County Massachusetts, granted a variance to the trustees of the 99 Commercial Street Realty Trust, allowing them to rebuild a deck that was destroyed which accordingly limited access for individuals with mobility challenges In 2010, the Jack and Lora Papetsas sold the property to the Carew Defendants, who divided it into two separate properties, currently known as 99 and 101 Commercial Street. Prior to the division, the Papetsas’ had constructed the deck on 99 Commercial Street that provided access to a restaurant, three residential units, and a public harbor-view access area

After the division of the property, the trustee of the Huey Trust became the owner of the residential waterfront property at 101 Commercial Street; David A. Deckelbaum. The Carew Defendants afterward became the owners of 99 Commercial Street. Deckelbaum’s contractors destroyed the deck, which violated the Commonwealth’s architectural-access laws. As a result, the Carew Defendants applied for a variance to rebuild the aforementioned deck that was removed. The decision to rebuild the deck was granted by the board in September 2018. The variance allowed the trustees to rebuild the deck 1.3 feet from the property line between 99 and 101 Commercial Street. Which was a variance of the law which instead required six feet by the zoning bylaw in the town. Deckelbaum then appealed the variance, and a trial was held to determine the validity of the variance and Deckelbaum’s standing to challenge it.

The trial was held in May 2022, where the court reviewed the properties and the surrounding residential district. The court ultimately found that Deckelbaum was in fact responsible for the destruction of the original deck. However, the court also found that the board acted within its statutory discretion in granting the variance because it was necessary to restore access to these areas. The court found that Deckelbaum had the standing in order to challenge the variance, however, the court also found that the zoning board acted within its discretion in granting the variance as it was necessary in order to restore access to the three residential units and two areas of public accommodation on 99 Commercial Street. The court ultimately decided for the Carew Defendants to build the deck 1.3 feet from the property line, rather than the required six feet.

Deckelbaum, Trustee of Huey Trust v. Clements, 2022 WL 4296708 (Massland Ct 2022)

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