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

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 Developer’s 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.

After careful consideration of all of the evidence, the court entered a Decision today, ruling that Brookline Zoning Board of Appeals properly ruled 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.

In accordance with that Decision, it is hereby

ADJUDGED and ORDERED that the decision of the Brookline Zoning Board of Appeals is AFFIRMED.

By the Court (Trombly, J.).