Plaintiff, George P. Fogg, III and Frances K. Fogg (Foggs), commenced this action on November 14, 2005, as an appeal, pursuant to G.L. c. 40A, § 17, from a decision of defendant, the Town of Brookline Zoning Board of Appeals, to rescind the issuance of a building permit concerning a parcel of real property, known as and numbered 71 Spooner Road in Brookline, owned of record by defendant, 81 Spooner Road, LLC (Developer).
On November 23, 2005, the Foggs filed a Motion to Consolidate this case with 81 Spooner Road, LLC v. Town of Brookline Board of Appeals, Misc. Case No. 315582. The Developer opposed the motion on December 1, 2005. The motion was argued on December 27, 2005, and taken under advisement. The court (Trombly, J.) issued an Order on January 3, 2006, denying the Motion for Consolidation. However, these cases have been maintained as companion cases, ever since.
On February 22, 2006, the Developer filed a Motion for Summary Judgment. The Foggs opposed the motion and filed a Cross-Motion for Summary Judgment on March 23, 2006. The motions were argued on May 11, 2006, and taken under advisement. The court issued a Decision on April 13, 2007, denying the Developers Motion for Summary Judgment.
Trial was held on both companion cases on December 4 and December 5, 2007. Karen Smith reported the testimony. Testifying were Frederick Velander and Christopher H. Mulhern for the Foggs and George P. Fogg, III, Timothy J. Kelleher, James J. Kirby, James J. Nickerson, and Dennis P. Cronin for the Developer. Nineteen exhibits were admitted into evidence. On March 3, 2008, the Foggs filed a Request for Findings of Fact and Rulings of Law; the Developer filed a Proposed Findings of Fact and Rulings of Law; and the Board of Appeals filed a Post-Trial Brief. This is the matter presently before the Court.
After reviewing the record before the court, I find that the following facts:
1. Defendant, 81 Spooner Road, LLC owned a parcel of land in Brookline, improved with a single-family dwelling (House).
2. The Developer submitted a subdivision plan to the Brookline Planning Board for endorsement as approval-not-required. In February 2005, the board so endorsed the plan. The plan divides 81 Spooner Road into the two lots, known as and numbered 71 Spooner Road and 81 Spooner Road. (A Decision Sketch is attached.)
3. 81 Spooner Road is a lot containing ten thousand, eight hundred, and ninety three (10,893) square feet.
4. The House is located on 81 Spooner Road.
5. On or about March 25, 2005, the Developer sold the 81 Spooner Road to Fredrik Velander and Rebecca Velander, but retained 71 Spooner Road for itself.
6. Prior to the sale, the third floor of the House contained two bedrooms, a bathroom, and unfinished space.
7. The bedrooms consisted of sub-flooring, finished walls, and ceilings.
8. One of the bedrooms had a wallpapered wall and window treatments and a painted wall.
9. The bathroom contained a sink, toilet, and shower with functioning plumbing.
10. The unfinished space consisted of sub-flooring and bare wall studs, joists, and roof rafters.
11. The Developer did not remove any interior finish from the third floor prior to the sale.
12. The unfinished space has a floor area of approximately four hundred and fifty six (456) square feet.
13. The entire third floor has a floor area of approximately one thousand, one hundred, and eighty six (1,186) square feet.
14. The gross floor area of the House without the third floor is three thousand, two hundred, and eighty seven (3,287) square feet.
15. The floor-to-area ratio of 81 Spooner Road without the third floor is 0.30.
16. The gross floor area of the House with the finished areas of the third floor is approximately four thousand and seventeen (4,017) square feet.
17. The floor-to-area ratio of 81 Spooner Road with the third floor is 0.36.
18. The Developer applied for a building permit from the Brookline Building Commissioner to build a single-family dwelling on 71 Spooner Road. On April 8, 2005, the Building Commissioner issued a building permit concerning that property (House Permit).
19. By letter dated May 16, 2005, plaintiffs, by their counsel, requested that the Building Commissioner rescind the House Permit. By letter dated May 31, 2005, the Building Commissioner refused to rescind the permit. On or about June 27, 2005, plaintiffs appealed to the Town of Brookline Zoning Board of Appeals.
20. On May 18, 2005, the Velanders applied to the Building Department for a permit to remove all interior finish from the third floor (Finish Removal Permit).
21. After public hearings on September 22, 2005 and October 20, 2005, the Board of Appeals filed a decision to rescind the House Permit, finding that the Proposed Structure exceeded the maximum floor-to-area ratio limitation.
22. As part of its decision, the Board of Appeals states that it was informed by the Building Department that the Velanders had applied for the Finish Removal Permit. As a result, the Board ruled that a building permit would be allowed on 71 Spooner Road on the condition that the Velanders obtain the Finish Removal Permit and utilize it to remove all interior finish from the third floor of the House on 81 Spooner Road. This appeal followed.
23. At the time of trial, the Velanders had not removed the finish from the third floor but, instead, had made renovations to the third floor and finished the unfinished space to create a new room, without appropriate permit to do so.
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General Laws, chapter 40A, § 17 requires that [t]he court shall hear all evidence pertinent to the authority of the board or special permit granting authority and determine the facts, and, upon the facts as so determined, annul such decision if found to exceed the authority of such board or special permit granting authority or make such other decree as justice and equity may require. 40A, § 17. The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to 40A, § 17 apply a combination of de novo review and deference to the judgment of the municipal authority. Bicknell Realty Co. v. Bd. of Appeal of Boston, 330 Mass. 676 , 679 (1953) (and case cited). The Trial Court must review the evidence and make findings of fact without deference to the boards findings. Id.; Willard v. Bd. of Appeals of Orleans, 25 Mass. App. Ct. 15 , 24 (1987); see G.L. c. 40A, § 17. In this review, the court is not limited to the evidence that was before the board. Bicknell Realty Co., 330 Mass. at 679; Marr v. Back Bay Architectural Cmmn, 32 Mass. App. Ct. 962 , 963 (1992); Crittenton Hastings House of the Florence Crittenton League v. Bd. of Appeal of Boston, 25 Mass. App. Ct. 704 , 713-24 (1988).
However, this review is circumscribed by the requirement to defer to the judgment of the municipal board. Pendergast v. Bd. of Appeals of Barnstable, 331 Mass. 555 , 557-58 (1954); Geryk v. Zoning Appeals Bd. of Easthampton, 8 Mass. App. Ct. 683 , 684 (1979); S. Volpe & Co., Inc. v. Bd. of Appeals of Wareham, 4 Mass. App. Ct. 357 , 360 (1976). The court is solely concerned with the validity but not the wisdom of the boards action. Wolfman v. Bd. of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). A court hearing a § 17 appeal is not authorized to make administrative decisions. Pendergast, 331 Mass. at 557-58; Geryk, 8 Mass. App. Ct. at 684. If reasonable minds may differ on the conclusion to be drawn from the evidence, the boards judgment is controlling. ACW Realty Mgmt., Inc. v, Planning Bd. of Westfield, 40 Mass. App. Ct. 242 , 246 (1996); Dowd v. Bd. of Appeals of Dover, 5 Mass. App. Ct. 148 , 154-55 (1977); Copley v. Bd. of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). However, in limited circumstances the Trial Court may substitute its judgment for that of the boards, where justice and equity require. G.L. c. 40A, § 17; Pendergast, 331 Mass. at 558.
Therefore, the court may overturn the board's decision only if the decision is based on a legally untenable ground or is unreasonable, whimsical, capricious or arbitrary. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 72 (2003); MacGibbon v. Bd. of Appeals of Duxbury, 356 Mass. 635 , 639 (1970); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246. However, where the courts findings of fact support any rational basis for the municipal boards decision, that decision must stand. MacGibbon, 356 Mass. at 639; Davis v. Zoning Bd. of Chatham, 52 Mass. App. Ct. 349 , 356 (2001); ACW Realty Mgmt., Inc., 40 Mass. App. Ct. at 246.
Section 5.20 and Table 5.01 of the Zoning By-Law of the Town of Brookline, limits the ratio of gross floor area to lot area for a building in the S-10 zoning district, to a maximum of 0.30. § 5.20; Table 5.01. Gross Floor Area is defined as [t]he sum of the areas of the several floors of a building, including areas used for human occupancy in basements, attics, and penthouses, as measured from the exterior faces of the walls. It does not include cellars, unenclosed porches, or attics not used for human occupancy
. § 2.07.1. Attic is defined as [t]he space in a building between the roof framing and the ceiling beams of the rooms below and not considered habitable space. § 2.01.3. Habitable Space is defined as [s]pace in a structure for living, sleeping, eating, or cooking or otherwise used for human habitation. § 2.08.1.
The record shows that two rooms and a bathroom were finished areas of the third floor of the House at the time 81 Spooner Road was divided and sold separately from 71 Spooner Road. The rooms consisted of finished walls and ceilings, full plumbing in the bathroom, and, at least, the infrastructure for heating and electricity. Although the third floor also contained unfinished space, it is clear that, at least, some of the third floor is habitable space, within the meaning of the bylaw.
Even though the third floor rooms may not have been completely refined, they are a far cry from the bare joists, wall studs, and roof rafters of an unfinished attic frame. Moreover, reasonable minds may differ on the interpretation of habitable space, and therefore, the boards interpretation must prevail. Accordingly, the finished rooms of the third floor are not an attic, within the meaning of § 2.01.3 of the Brookline Zoning By-Law, and therefore, the finished rooms must be included in the gross floor area of the House. As a result, the House exceeds the maximum floor-to-area ratio limitation.
A lot is deemed nonconforming, even where, on its face, the lot meets all the requirements of the zoning ordinance of bylaw, if it was created by subdividing an existing conforming lot, so as to render the remainder of the existing lot nonconforming. Alley v. Building Inspector of Danvers, 354 Mass. 6 (1968); Planning Bd. of Nantucket v. Bd of Appeals of Nantucket, 15 Mass. App. Ct. 733 (1983); see Murphy v. Kotlik, 34 Mass. App. Ct. 410 (1993). The new, facially-conforming lot is infected by the avoidable nonconformity of the remaining lot.
The Planning Boards endorsement of the approval-not-required plan, which subdivided the two lots, created two nonconforming lots with no standing under the Zoning By-Law. Planning Bd. of Nantucket, 15 Mass. App. Ct. at 737 (and cases cited). 81 Spooner Road was rendered nonconforming as to floor-to-area ratio by the division of 71 Spooner Road, and 81 Spooner Road is nonconforming as a result of infectious invalidity. For zoning purposes, the separate lots must be treated as a single lot. See id. (citing Becket v. Building Inspector of Marblehead, 6 Mass. App. Ct. 96 , 104 (1978)). 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 requirement of the Zoning By-Law, either by sufficiently reducing the floor-to-area ratio of the House or obtaining relief from this zoning requirement.
The ruling of the Brookline Zoning Board of Appeals was that a building permit would be allowed on 71 Spooner Road on the condition that all of the interior finish be removed from the third floor of the House on 81 Spooner Road. Nevertheless, the Board rescinded the permit on other grounds. Accordingly, I rule that the Board of Appeals acted properly.
CONCLUSION
For the foregoing reasons, this Court concludes that the ruling of the Brookline Zoning Board of Appeals that a building permit would be allowable on 71 Spooner Road on the condition that all of the interior finish from the third floor of the House on 81 Spooner Road be removed was proper. The finished space of the third floor of the House on 81 Spooner Road is not an attic within the meaning of the Zoning By-Law of the Town of Brookline. Therefore, the space must be included in the gross floor area of the House. As a result, 81 Spooner Road exceeds the maximum floor-to-area limitation of the Zoning By-Law and is a nonconforming lot. This nonconformity was created by the division of 71 Spooner Road. Therefore, 71 Spooner Road is a nonconforming lot as a result of infectious invalidity. 71 Spooner Road could be made conforming by the removal of all interior finish from the third floor of the House on 81 Spooner Road. A building permit may be issued to 71 Spooner Road provided such a condition is satisfied. Accordingly, the decision of the Brookline Zoning Board of Appeals is AFFIRMED.
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Justice
Dated: April 27, 2009
GEORGE P. FOGG, III, and FRANCES K. FOGG v. 81 SPOONER ROAD, LLC, and LAWRENCE E. KAPLAN, BAILEY SILBERT, and MURRAY SHOCKET, as members of the TOWN OF BROOKLINE ZONING BOARD OF APPEALS