In the September 1997 issue of this magazine I discussed a trial court decision in a case having significant impact on mixed use condominiums.  The ruling in The 39 Joy Street Condominium Association v. Board of Appeal of Boston was that a unit owner could not seek and obtain a variance under a zoning code permitting a change of use for a unit without first obtaining the consent of his fellow unit owners.  In reaching this conclusion the trial judge reasoned that since zoning codes looked to the use of a building, as opposed to just a unit, obtaining a change in use significantly affected all owners and thus required their consent.  On appeal, the Supreme Judicial Court reversed this portion of the decision reasoning that the zoning statute specifically authorizes "an individual to independently seek a variance with respect to property he exclusively owns."  Thus, the Court concluded that since the requested variance had negligible impact on the common areas, absent a provision in the master deed or by-laws requiring approval, the unit owner had full authority to seek the variance and that the other owners' interests would be amply protected by the zoning statute's requirement of notice to abutters and the associated right to object.

            In considering the impact of this decision it still leaves the case as providing significant protections.  First, the reasoning was premised upon the fact that in this instance the effect on the common areas was negligible.  Inferentially, if the opposite is the case clearly approval would be necessary.  Equally import, the case validates the position taken by many association practitioners that all unit owners are abutters under the zoning code and thus the notice and right to object provisions of the zoning statute apply.  This is particularly important when a neighboring property owner seeks a variance.  Technically, notice to all unit owners of such would be required as part of the variance process.

 Of other major significant is the recognition by the Court that a condominium master deed or its by-laws may properly require that a unit owner seeking a change of use must first obtain approval from, at a minimum, the board or, if so provided some percentage of the unit owners.  Thus, boards in mixed use condominiums particularly, or for that matter, all boards, would be wise to have their documents reviewed to see if such an approval or if some other clause exists which would prohibit a change of use and, if not, to have their attorney draft such a clause for adoption by the ownership.  The court has recognized that the ownership may, by a proper provision, ensure that undesired uses cannot be made of the premises.  This opportunity should not be overlooked before a crisis erupts.