Mon, Nov 09 2009

Published: July 02, 2009 05:55 am    PrintThis  

State right to affirm property rights in Eastern Point case

Beauty, it has been said many times, is in the eye of the beholder.

So are good taste, good design and various other subjective judgments.

But one person's judgment about beauty, taste or design — even if he or she thinks it is supposedly more sophisticated — should not be allowed to control what is on another person's property. So, it is good to see that the state Appeals Court has rejected a bid by Boston real estate developer Donald Saunders to force his neighbor, Virgil Martinonis, to tear down the house he built to replace the one destroyed by fire in 2001 in an exclusive neighborhood on Gloucester's Eastern Point.

Essentially, the court upheld the local Zoning Board of Appeals, which told Martinonis seven years ago that he could, by right, build a somewhat larger, more modern house on the footprint of the old one, without the need of a special permit or a variance.

Since then, Saunders has repeatedly challenged the Zoning Board of Appeals's decision, even though he is rarely seen in the large, three-story gray Colonial he owns across the street from Martinonis' home. His argument is that the new structure is too large and affects his view of the water, and therefore should not have been allowed by the city's Zoning Board of Appeals.

He first sought an injunction in Superior Court to stop construction. That was denied, although the judge warned Martinonis at the time that if he lost in a higher court, he could be required to tear down the house. But Saunders eventually lost the case entirely, when Superior Court Judge Howard Whitehead affirmed the Zoning Board of Appeals' stand. And last Wednesday he lost again, when the three-judge panel on the state Court of Appeals unanimously upheld the decision of the local board.

Saunders still has the option to appeal to the state's highest court, the Supreme Judicial Court. But it will likely be a waste of time and money. The higher courts generally do not overturn the decisions of a local board unless that board has made some kind of blatant legal error. And that is clearly not the case in this point, since every level of the judicial system so far has come to the same conclusion.

There was not a single vote in Saunders' favor on the Court of Appeals — and that is a good thing. Zoning decisions, while they rarely please everybody, are best understood by those who serve on local boards, who know the neighborhoods and the communities. And the courts are wise to defer to them; it would be absurd for the highest court in the state to be deciding if a house is too big, or blocks too much of a view of the ocean.

One property owner may not like the size or design of another property owner's home. But unless there is a clear violation of local zoning laws, it is the owner who gets to decide such things, not the neighbor.

This ruling cuts to the heart of all of our property rights, and the jurisdiction of local city or town boards to decide these challenges. The courts, indeed, are wise to uphold both.

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