Two Colbourne Crescent neighbors faced off before Brookline's Zoning Board of Appeals on Thursday, July 30, in a dispute over a driveway expansion that one family says raised the grade by a foot and channeled stormwater runoff toward their property, increasing erosion risk.

David and Jamie Shushan, who own 51 Colbourne Crescent, are appealing a Building Commissioner decision that authorized their neighbor at 61 Colbourne Crescent to expand a driveway under an existing permit. The property at 61 is held in trust by Cynthia Roney and Bank of America, N.A.

The case hinges on whether the town should have required a new permit for the work rather than approving it through an email exchange. According to the ZBA agenda packet, Davis Yetman, a representative for 61 Colbourne, emailed Building Department official Dan Bennett on Thursday, April 2, asking for confirmation that the existing 2024 permit covered replacement of pre-existing pavement shown in a surveyor's drawing. Bennett authorized the work on Wednesday, April 8.

The Shushans' attorney, James E. Gallagher of Davis Malm in Boston, argued the email approval amounted to an end-run around permitting requirements.

"The current email exchange is an attempt to end-run the permitting requirements established by the Town's Bylaws," Gallagher wrote in his May 8 appeal letter to the ZBA. "A new building permit application for this new work was required to be submitted but that rule has not been enforced."

Gallagher cited three violations: expansion of a non-conforming use without ZBA approval under Section 8.02 of the Zoning Bylaws, failure to file an Erosion and Sediment Control Plan required by the town's stormwater bylaw, and failure to submit amended construction documents under the state building code.

Photographs submitted by the appellants show the completed driveway is approximately 10 feet wide, with the grade raised roughly one foot during construction. The Shushans contend the slope now channels runoff downhill toward their fence line.

The dispute has roots going back at least to 2015, when the two properties recorded a settlement agreement governing a shared easement. The appellants also flagged what they call an inconsistency in surveyor records: a 2023 draft by Anderson Surveys described the area as "broken bituminous concrete pavement," while a 2025 sketch labeled the same spot "existing bituminous concrete pavement," despite no work being done in between.

The owners of 61 Colbourne Crescent filed written opposition on Tuesday, July 21, arguing the April 8 authorization simply allowed completion of work that was interrupted when the Shushans intervened during paving in April 2025. They say the project complies with the 2015 settlement agreement.

The ZBA has not yet issued a decision. Rulings are expected to be posted to the town's website around Saturday, August 1.