Creating Thriving Communities Through Land Use And Real Estate Law

Is A Wall Just A Wall, Or Is It A Structure?

When is a wall just a wall, and when is a wall a structure?  In the recent decision of O’Connell v. Vainisi, LCR (May 29, 2015), the Land Court considered this question under the Cohasset zoning bylaw.  Specifically, the Court considered the Plaintiffs’ objection to the wall their neighbors, the Defendants, built as part of a renovation.  A special permit allowed the renovation, but did not authorize the wall.

The Cohasset bylaw prohibits “structures” from being built within the setback areas.  “Structures” is defined to include a “fence” and “retaining wall,” but there is an exception for a “perimeter wall, fence, or similar enclosure, not in excess of six feet in height.”  Therefore, the Court was left to determine whether the wall was a “perimeter wall, fence, or similar enclosure,” and therefore permissible, or whether it was a “fence” or “retaining wall” and therefore impermissible.  The second question presented was whether the wall, which technically only “retained” in one section, was properly considered a “retaining wall.”

This decision is the last in a line of decisions.  The O’Connells objected to the Vainisis putting a fence on top of the wall, raising its overall height to somewhere between nine and eleven feet, as well as the outdoor shower in the setback area, and the parking of cars in the setback.  The Zoning Board found in favor of the O’Connells and ordered the fence, shower, and parking removed.  The O’Connells appealed to the Superior Court, O’Connell v. Vainisi, Norfolk Superior Court, Civil Action No. 2009-CV-01147, Memorandum of Decision on Cross Motions for Summary Judgment (Aug. 6, 2011), and then to the Appeals Court.  O’Connell v. Vainisi, 82 Mass. App. Ct. 688 (2012).  The Appeals Court declined to determine whether the wall was a “perimeter wall, fence, or similar enclosure,” and remanded the matter to the Zoning Board to determine the proper classification for the wall.

On remand, the Zoning Board determined that the wall was a “perimeter wall, fence, or similar enclosure,” and voted to affirm the Building Inspector’s determination that a modification of the special permit to allow the wall was appropriate.  The O’Connells appealed again, this time to the Land Court.

After a trial, the Land Court upheld the Zoning Board’s decision on the grounds that the Board’s interpretation of its own zoning bylaw was reasonable.  The Court found that the wall “is six feet or less in height along its entire length. It runs along the western perimeter of the Vainisis’ property. And it is part of an overall enclosure of the perimeter of the Vainisi property.”  The fact that a small portion of the wall that served a “retaining” function did not alter the analysis.  Because the Board’s interpretation was reasonable, particularly where local boards are presumed to have “special knowledge of the history and purpose of its town’s zoning bylaw,” the Land Court upheld the Board’s decision to allow modification of the special permit to cover the wall.

While in the end not a complicated analysis, this case demonstrates the hazards of constructing outside the limits authorized by special permit (or any permit), as well as the antagonism that can stem from what seems like a minor project to improve property.  It also highlights the ambiguity which exists in practically all zoning bylaws, which can cause unexpected problems later in development.