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

• Decision Date: 02 March 2011
• Docket Number: No. 09-P-1248.,09-P-1248.
• Citation: 936 N.E.2d 895,78 Mass.App.Ct. 233
• Court: Appeals Court of Massachusetts
• Parties: 81 SPOONER ROAD, LLC v. ZONING BOARD OF APPEALS OF BROOKLINE & others (and a consolidated case ).

936 N.E.2d 895

78 Mass.App.Ct. 233

81 SPOONER ROAD, LLC

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

No. 09-P-1248.

Appeals Court of Massachusetts,

Suffolk.

Argued March 5, 2010.

Decided Nov. 9, 2010.

Further Appellate Review Granted March 2, 2011.

Jeffrey P. Allen, Boston, for 81 Spooner Road, LLC.

James Gray Wagner, Boston, for George P. Fogg, III, & another.

Jennifer Dopazo Gilbert, Town Counsel, for zoning board of appeals of Brookline.

Present: KAFKER, GRAHAM, & GRAINGER, JJ.

GRAHAM, J.

Hearing a zoning enforcement appeal, filed by Frances K. Fogg and George P.Fogg, III, the town of Brookline (town) zoning board of appeals (board) revoked a building permit that had issued to the developer, 81 Spooner Road, LLC (LLC). That permit had authorized LLC to construct a new single-family home on a lot (71 Spooner Road) it owned in the Chestnut Hill section of the town. The board rejected the Foggs' claims respecting an adjacent property (81 Spooner Road) and its vintage home, which LLC had by then sold to third persons, who were not summonsed as parties in this action. The Foggs are abutters to 71 Spooner and 81 Spooner Road.

In the Land Court, LLC and the Foggs filed cross appeals from the board's decision. The companion actions were tried jointly to a judge, who affirmed the board's revocation of the building permit. The judge found no merit to the claims of error advanced by LLC. The judge, however, agreed with the Foggs that LLC's development scheme had caused the 81 Spooner Road home to be nonconforming with the town's zoning bylaw (bylaw), a flaw which affected 71 Spooner Road also, rendering it an invalid building lot. From the separate judgments entered in each action, LLC filed a timely appeal.³ We affirm.

1. Background. a. Facts. We summarize the facts found by the Land Court judge, supplemented by undisputed facts of record. When LLC acquired it in June of 2004, 81 Spooner Road was then comprised of 22,400 square feet of land, on which stood a 1910 colonial revival home with six bedrooms and 3,812 square feet of living space. By all accounts, 81 Spooner Road conformed with local zoning. The home was (and remains) situated in a S-10 residential zoning district.

In February of 2005, at the behest of LLC, the town's planning board endorsed the developer's approval-not-required (ANR) subdivision plan. G.L. c. 41, § 81P. The plan allowedLLC to divide 81 Spooner Road into two separate lots: a smaller 81 Spooner Road lot, comprised of 10,893 square feet of land, with the vintage home; and a larger land lot, known as 71 Spooner Road, with 11,648 square feet of area.⁴ In March, 2005, LLC sold 81 Spooner Road, ⁵ retaining 71 Spooner Road for development. A sketch made in the Land Court is attached hereto as an Appendix.

Subsequently, on April 8, 2005, LLC obtained a building permit, from the town's building commissioner, authorizing its construction of a single-family home at 71 Spooner Road. The building department did not provide any notice to the Foggs. LLC posted no notice of the permit on its property; nor did LLC begin construction within the thirty-day appeal period. After learning of the permit, as a result of repeated inquiries of the town's building department, the Foggs made demand of the commissioner to enforce the local bylaw against LLC, for reasons cited in a letter to him, dated May 16, 2005. The commissioner refused; in his reply to the Foggs, of May 31, 2005, he held to the view that 71 and 81 Spooner Road conformed to requirements of the bylaw. From his denial, the Foggs appealed to the board,G.L. c. 40A, § 8, seeking relief from the alleged violations.⁶

b. Foggs' appeal filed with the board. The Foggs alleged that 71 and 81 Spooner Road violated local zoning requirements, for different reasons, which they set forth in detail in a written submission filed with the board. In large part, the Foggs asserted each of the homes, in its own way, exceeded the maximum floor area ratio (FAR) allowed under the bylaw.

A floor area ratio measures the gross floor space of a building in comparison to the area of its underlying lot.⁷Woods v. Newton, 351 Mass. 98, 102, 217 N.E.2d 728 (1966) (purpose or "essential scheme" ofFAR ordinance is to maintain a certain ratio between lot area and bulk size of a structure on said lot); 81 Spooner Rd. LLC v. Brookline, 452 Mass. 109, 115, 891 N.E.2d 219 (2008) (regulating a building's "bulk," by way of floor area ratio, "is a generally recognized and accepted principle of zoning").⁸ In this way, the bylaw's FAR requirement protects against undue building density, and promotes the bylaw's overarching policy to advance the health, safety, and welfare of the town's residents. To that end, the bylaw, among other things, seeks to foster the most appropriate use of land, prevent overcrowding of land, and encourage the preservation of historic and architecturally significant structures.⁹

For 71 Spooner Road, the Foggs noted the "current" plans described the proposed "living area" as 3,511 square feet. That gross floor area number, divided by the lot area (i.e., 11,648 square feet), yields a .30FAR, the maximum allowed under the bylaw. The Foggs argued the FAR figure was inaccurate becauseLLC did not account for nearly 1,000 square feet of "unfinished" space located on the second floor of this three-story home. Though left unfinished, this disputed space, the Foggs claimed, had been designed and intended for use as living quarters, namely, a master bedroom and master bath suite. They said this could be reasonably inferred from the fact that LLC's house plans had identified bedrooms "2," "3," "4," and "5" in the home, but failed to disclose bedroom no. 1. On plans drawn up by LLC's architect, the disputed space was described as a "master bedroom," "master bath," with two walk-in closets (WIC). LLC approved these plans.

More generally,¹⁰ the Foggs argued that LLC's over-all plan to divide 81 Spooner Road, creating two separate lots, led to a dense development project for their residential neighborhood.¹¹ Originally, 81 Spooner Road had a .17 FAR; after being divided, the property had a .36 FAR.¹² From this, the Foggs argued to the board that 71 Spooner Road was an invalid lot because its creation, as a result of LLC's ANR plan, had rendered 81 Spooner Road nonconforming as to the bylaw's FAR requirement.

In his decision (May 31, 2005 letter), the building commissioneranswered this contention, indicating a permit had been issued to Fredrik and Rebecca Verlanders, the owners of 81 Spooner Road, authorizing the removal of interior attic finish from their home so it would comply with the FAR. The board took this same tack, rejecting the Foggs' claim as to 81 Spooner Road, on the "assumption" the Verlanders would remove finish from their third-floor attic space.¹³

2. Land Court judgments.¹⁴ Apart from affirming the board's decision to rescind the building permit for 71 Spooner Road in the action commenced by LLC(see Land Court case no. 315582), the judge decided (as alleged by the Foggs) that, as a result of LLC's development plan, 81 Spooner Road "was rendered nonconforming" as to its FAR (see Land Court case no. 315662).

From this, the judge ruled that the "construction of a single-family dwelling on 71 Spooner Road would require that 81 Spooner Road be brought into compliance with the floor-to-area [ratio] requirement of the [z]oning [b]y-[l]aw, either by sufficiently reducing the floor-to-area ratio of [81 Spooner Road] or obtaining relief from [this bylaw] requirement." His ruling formed the basis for the judgment entered in the Foggs' own action. The judgment declared the board had properly ruled a building permit "would be allowable" on 71 Spooner Road on the condition that all interior finish be removed from 81 Spooner Road's third-floor attic. The Foggs did not appeal from or quarrel with that judgment.

In this appeal, LLC challenges the Land Court's judgments, arguing that: the judge erred and abused his discretion in upholding the board's decision to revoke the permit; the Foggs failed timely to appeal to the board within thirty days from the issuance of the building permit; they did not have standing to obtain zoning relief before the board or Land Court; and the judge erred in applying the common-law doctrine of infectious invalidity to this zoning dispute.¹⁵

We defer addressing the parties' legal contentions in order that we may describe briefly the framework of the bylaw pertinent to this appeal. ¹⁶

3. Zoning bylaw. In 2008, prior to the entry of the challenged judgments here, the Supreme Judicial Court declared the bylaw to be legally valid, to the extent it employed a maximum "floor area ratio," to regulate the bulk size of single-family homes in the town. 81 Spooner Road, LLC v. Brookline, 452 Mass. 109, 891 N.E.2d 219 (2008).

Addressing a prior appeal by LLC,¹⁷ from a different Land Court decision, theSupreme Judicial Court declared the bylaw did not violate the Legislature's directive in G.L. c. 40, § 3, second par., which commands: "[n]o zoning ordinance or bylaw shall regulate or restrict the interior area of a single-family residential building...."

Construing the statutory language, for purposes of reviewing LLC's bylaw challenge, the court determined that the FARregulation had only an "incidental" effect, as opposed to an impermissible "direct" impact, on the interior area of single-family homes, and, as such, was a lawful exercise by the town of its delegated zoning power. 81 Spooner Road, LLC, supra at 117, 891 N.E.2d 219.

Section 5.20 of the bylaw forms the core of its FAR requirement. That provision mandates: "For any building or group of buildings on a lot the ratio of gross floor area to lot area shall not exceed the maximum specified" in the bylaw's dimensional requirements table. 71 Spooner Road and 81 Spooner Road are situated in a residential S-10 district of the town, which allows a maximum .30 FAR for all...