81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, SJC–10929.

• Decision Date: 20 March 2012
• Docket Number: SJC–10929.
• Citation: 964 N.E.2d 318,461 Mass. 692
• Parties: 81 SPOONER ROAD, LLC v. ZONING BOARD OF APPEALS OF BROOKLINE & others 1 (and a companion case 2).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

461 Mass. 692

964 N.E.2d 318

81 SPOONER ROAD, LLC

v.ZONING BOARD OF APPEALS OF BROOKLINE & others 1 (and a companion case 2).

SJC–10929.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 8, 2011.Decided March 20, 2012.

Jeffrey P. Allen (Donald J. Gentile with him) for 81 Spooner Road, LLC.

James Gray Wagner (Jan M. Kendrick with him), Boston, for George P. Fogg, III, & another.

Jennifer Dopazo Gilbert, Town Counsel (John J. Buchheit, Associate Town Counsel, with her) for zoning board of appeals of Brookline.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

In this case, we consider whether a judge in the Land Court properly granted summary judgment in favor of George P. Fogg, III (George), and his mother, Frances K. Fogg (Frances), on the issue of their standing as “aggrieved” persons pursuant to G.L. c. 40A, § 17. The Foggs challenged the issuance of a building permit to 81 Spooner Road, LLC (developer) by the building commissioner for the town of Brookline (town or Brookline). The town's zoning board of appeals (board) determined that the permit should be rescinded. After the issue of standing was eliminated on summary judgment, the matter proceeded to a bench trial on the merits. The judge affirmed the decision of the board. The developer appealed. The Appeals Court affirmed the judgments, both as to standing and the underlying merits, concluding, among other things, that the developer had failed to rebut the Foggs' presumptive standing as abutters. See 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 78 Mass.App.Ct. 233, 936 N.E.2d 895 (2010). We granted the developer's application for further appellate review, which raised only the issue of standing. For the reasons that follow, we now affirm the granting of summary judgment to the Foggs on that issue.³

1. Background. We summarize the relevant facts as found by the Land Court judge, supplemented where necessary by undisputed facts in the record. George lives in a single-family home at 91 Spooner Road in Brookline, and Frances lives in a single-family home at 61 Spooner Road. Their properties were located on either side of and abutted the property at 81 Spooner Road (subject property), which had an area of approximately 22,400 square feet. On June 30, 2004, the developer purchased the subject property, on which was located a single-family home. The subject property is situated in an S–10 zoning district. A sketch made by the Land Court showing the properties at issue is attached hereto as an Appendix.

In an S–10 zoning district, the town's zoning bylaw permits single-family homes on lots having a minimum size of 10,000 square feet. Table 5.01 of the zoning bylaw specifies the uses, the minimum lot size, the maximum floor-to-area ratio, the minimum lot width, the maximum building height, the setback requirements, and the open space requirements for each zoning district in the town. As pertinent to this case, the floor-to-area ratio limits the size of the building that can be situated on a lot of a particular area. The floor-to-area ratio applicable to an S–10 zoning district is .3, and, at the time the subject property was purchased by the developer, it conformed to this requirement by having a floor-to-area ratio of .17.

On March 9, 2005, the town's planning board indorsed the developer's “approval not required” subdivision plan pertaining to the subject property. See G.L. c. 41, § 81P (approval of plan not subject to subdivision control law). The plan divided the subject property into two lots—81 and 71 Spooner Road. The lot with the existing single-family home at 81 Spooner Road, which became 10,893 square feet after the division, then was sold to Fredrik and Rebecca Velander on March 25, 2005.⁴ George at 91 Spooner Road remained the abutter to this property. The developer retained the newly created lot at 71 Spooner Road, which was 11,648 square feet after the division. On April 8, 2005, the town's building commissioner issued a permit to the developer, allowing the construction of a two-story, single-family house at 71 Spooner Road. Frances at 61 Spooner Road became the abutter to this property.

By letter to the town's building commissioner dated May 16, 2005, the Foggs requested, pursuant to G.L. c. 40A, § 7,⁵ that the building permit “be rescinded and that all development on 71 Spooner Road be ordered halted.” Among other concerns, they asserted that, absent the property at 71 Spooner Road, the existing home at 81 Spooner Road exceeded the maximum floor-to-area ratio allowed under the zoning bylaw, rendering the lot at 71 Spooner Road invalid for separate development (known as “infectious invalidity”).⁶ The Foggs also claimed that the floor-to-area ratio of the proposed house at 71 Spooner Road would exceed the maximum ratio allowed under the bylaw. On May 31, 2005, the building commissioner denied the Foggs' request to rescind the building permit, concluding that both 71 and 81 Spooner Road conformed with the requirements of the zoning bylaw. The Foggs appealed from that decision to the board pursuant to G.L. c. 40A, § 8.

Public hearings were held on September 22 and October 20, 2005. At the outset, the developer asserted that the Foggs did not have standing to challenge the building commissioner's decision before the board because they were not “aggrieved” persons. The board declined to consider the developer's argument and proceeded with the hearing.

By decision dated November 1, 2005, the board rescinded the building permit issued to the developer. The basis for the board's decision was its finding that, notwithstanding the developer's claim that disputed space on the second floor of the 71 Spooner Road house was “non-habitable attic space,” the developer intended for such space to be habitable. Therefore, the disputed space had to be included in the dwelling's gross floor area for the purpose of calculating its floor-to-area ratio. Once included in such calculation, the house at 71 Spooner Road, when completed, would exceed the maximum floor-to-area ratio allowed in an S–10 district under the zoning bylaw. The board rejected the Foggs' contention that, once the subject property was divided into two lots, the existing home at 81 Spooner Road exceeded the maximum allowable floor-to-area ratio because the property at 71 Spooner Road was necessary to maintain 81 Spooner Road's compliance with the bylaw. The board stated that it had received information from the building commissioner that the Velanders had applied for and been issued a permit to “[r]emove interior finish from the attic.” In the board's view, removing all interior finish from the third floor “attic” would render that area “non-habitable space,” and it then could be excluded from the home's gross floor area. Once this occurred, the house at 81 Spooner Road would be in compliance with the zoning bylaw's maximum floor-to-area ratio for an S–10 district. The board cautioned that its decision regarding this issue was based on its assumption that the Velanders actually converted the attic to “non-habitable space.”

In response to the board's decision, the building commissioner notified the developer's general contractor that the building permit for 71 Spooner Road was suspended until either new plans were submitted showing that the house conformed to the maximum allowable floor-to-area ratio, or the ensuing appeal from the board's decision was resolved. The building commissioner ordered the contractor to stop all work at 71 Spooner Road, except any work necessary to make the property safe and secure.

In November, 2005, the developer and the Foggs each filed a complaint in the Land Court, seeking judicial review of the board's decision pursuant to G.L. c. 40A, § 17.⁷ The focus of the developer's complaint against the board and the Foggs was its contention that the board erred in rescinding the building permit based on its finding that the 71 Spooner Road house, when completed, would exceed the maximum floor-to-area ratio allowed in an S–10 district under the zoning bylaw.⁸ The developer also reiterated its assertion that the Foggs did not have standing as “aggrieved” persons to challenge the issuance of the building permit before the board. In their complaint against the board and the developer, the Foggs took issue with the board's rejection of their argument as to the “infectious invalidity” of 71 Spooner Road.

On February 22, 2006, the developer filed separate motions for summary judgment with respect to its own complaint and that of the Foggs. The basis for each motion was the developer's contention that the Foggs were not “aggrieved” persons within the meaning of G.L. c. 40A, § 17, and, therefore, lacked standing to appeal from the issuance of the building permit before the board. In support of its position, the developer relied on its own memoranda of law and on portions of the Foggs' deposition testimony. The Foggs filed an opposition and a cross motion for summary judgment with respect to both complaints, requesting entry of an order pursuant to Mass. R. Civ. P. 56(d), 365 Mass. 824 (1974), that they had standing to appeal from the building commissioner's decision.⁹ In support of their position, the Foggs presented their own deposition testimony, several photographs, a site plan of the area, and a section of a legal treatise concerning the regulation of density in urban areas.

On April 13, 2007, the judge denied the developer's motions for summary judgment, granted the Foggs' motion for summary judgment, and eliminated the issue of standing from a trial on the merits of the parties' complaints seeking judicial review of the board's decision. He found that Frances, as an abutter to the property at 71 Spooner Road, was entitled to a presumption of standing as a “party in interest.” ¹⁰ He stated that while the evidentiary record before the court was “thin,” the issue was not whether the Foggs had presented...