In a sudden reversal, state Senator Sonia Chang-Diaz has agreed to lower the roof of her newly rebuilt Jamaica Plain home, resolving a neighbor’s legal claims that her addition violates the city zoning code, according to a copy of the agreement provided by the plaintiff.
Chang-Diaz and her husband, Bryan Hirsch, agreed in private negotiations with their neighbor to trim up to 3 feet off the height of the roof they raised this spring to add a third floor to their two-family house at 3-5 Bremen Terrace.
In return, the next-door neighbor, Brian Wells — who had accused the city of giving her special treatment — agreed to drop the lawsuit he filed in Suffolk Superior Court against the couple and the city agencies that approved their plans. He argued that the addition exceeded the neighborhood’s 35-foot height limit, and should have required a variance.
Chang-Diaz, a Democrat first elected to the state Senate in 2008, issued a statement on Tuesday sounding a defiant note. She said she believed that she would have prevailed in court, that her neighbor lacked standing to sue, and that his allegations lacked merit.
She also slammed Wells for suing her rather than trying to work out his grievances — “especially when the remedy is as extreme as tearing part of our family’s house down, and especially when he had previously signed a support letter,” Chang-Diaz wrote. “Happily, we believe Mr. Wells is the exception, not the rule, in how neighbors choose to treat one another in Boston.”
While maintaining she was right, Chang-Diaz said in the statement: “Litigation is costly and with a new baby in our home we’ve decided it makes more sense to settle and move on with our lives.” She would not agree to an interview.
The negotiated agreement calls on Chang-Diaz and her husband to go back to the drawing board on renovations that their architect had rushed into construction this spring to accommodate their expanding family. The couple had been trying to complete the work before the due date for their second child, who was born on June 11, according to Chang-Diaz’s Twitter feed. Their revised plans will need the approval of city inspectors, according to the agreement.
Chang-Diaz and Hirsch bought the two-family house in May 2014 for $700,000 and, last fall, hosted an open house where they showed neighbors their renovation plans and sought their approval.
Wells was among those who later signed off on the plans, which called for raising the roof several feet to convert the attic into a habitable third floor.
But after construction began in April, he and other neighbors were surprised by the height of the project and said it was taller than they had expected. City inspectors did not require a variance for the project’s height, which is limited to 35 feet in that neighborhood.
After Wells sued, the Globe reported that the construction appeared to violate Boston’s zoning code; two architects who reviewed the building plans for the Globe said Chang-Diaz’s architect appeared to have calculated the average grade of the property by measuring from the rear property line, rather than the sidewalk, failing to account for a dramatic drop in elevation and minimizing the height.
The agreement calls for the couple to change the project in one of two ways: by trimming 3 feet off the top; or by reverting to a “hip roof” — the style originally planned.
Even at the lowered height, however, the building will be taller than the 35 feet permitted by zoning, Wells said. The architect’s revised plans put the peak of the renovated roof at 36 feet, 4 inches, when measured from the first floor, while ignoring a drop in elevation from the porch to the sidewalk that may exceed 8 feet, Wells said. The median roof height could still be 41 feet, he estimated.
However, he said he has “full trust” that the city will review the new designs properly.
“It’s a compromise,” Wells acknowledged. “Whatever the city decides, I’ll live with that.”
Negotiations between the neighbors were civil in recent weeks, Wells said. No money or legal fees will change hands as a result of the agreement. Wells said he was merely hoping to achieve “equal application of the zoning laws in our neighborhood that affect the look and feel of our neighborhood. And I think we’re partway there, and if the city of Boston does their part, the best case will be more of a consistent height in the neighborhood.”
The decision was an about-face for a city politician who had stood by her building plans. Most homeowners spend at least six months seeking a building permit for even a basic home renovation. Chang-Diaz’s construction began within four months of her application for a permit — including the time it took to seek a variance for excessive floor-area ratio before the Zoning Board of Appeal.
Construction began in April on a city-issued “at risk” permit — an unusual designation that allows a property owner to begin construction while waiting for final city approval and potential appeals. As the name suggests, it carries the risk that new construction successfully challenged in the public appeals process or in court may be altered or torn down.
The parties’ negotiated agreement, signed late Monday night, averted a hearing planned before the city Zoning Board of Appeal on Tuesday.