Plaintiff, 81 Spooner Road, LLC (Developer) commenced this action on November 10, 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 the Developer.
On November 23, 2005, defendants, George P. Fogg, III and Frances K. Fogg (Foggs), filed a Motion to Consolidate this case with Fogg v. Brookline Board of Appeals, Misc. Case No. 315662. 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, challenging the Foggs standing. 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 George P. Fogg, III, Timothy J. Kelleher, James J. Kirby, James J. Nickerson, and Dennis P. Cronin for the Developer and Frederick Velander and Christopher H. Mulhern for the Foggs. Nineteen exhibits were admitted into evidence. On March 3, 2008, the Developer filed a Proposed Findings of Fact and Rulings of Law; the Foggs filed a Request for 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. Plaintiff, 81 Spooner Road, LLC is the owner of a parcel of land, known as and numbered 71 Spooner Road in Brookline. (A Decision Sketch is attached.)
2. 71 Spooner Road lies within the S-10 zoning district.
3. 71 Spooner Road is a lot containing six hundred, and forty eight (11,648) square feet.
4. The Developer proposes to build a two story, single-family dwelling on 71 Spooner Road (Proposed Structure). [Note 1]
5. The plans for the Proposed Structure designate four rooms on the second floor of the Proposed Structure as Unfinished Space.
6. If the unfinished space were included in the gross floor area, it would consist of nine hundred and fifty three (953) square feet of floor area.
7. The gross floor area of the Proposed Structure without the unfinished space is three thousand, five hundred, and eleven (3,511) square feet.
8. The floor-to-area ratio of 71 Spooner Road without the unfinished space is 0.30.
9. The gross floor area of the Proposed Structure with the unfinished space is four thousand, four hundred, and sixty four (4,464) square feet.
10. The floor-to-area ratio of 71 Spooner Road with the unfinished space is 0.38.
11. The unfinished space, as the rest of the second floor, is designed to be structured and framed by the ceiling beams of the first floor below and the joists of the floor above.
12. The plans for the Proposed Structure depict the layout of walls, windows, and doors. The rooms of the non-Unfinished Space of the second floor are labeled and certain fixtures are given measurements and placements.
13. The unfinished space consists of two larger rooms and two smaller rooms defined by wall framings.
14. It is undisputed that if the unfinished space is included in the gross floor area of the Proposed Structure, then the structure exceeds the maximum floor-to-area ratio limitation of § 5.20 and Table 5.01 of the Zoning By-Law of the Town of Brookline.
15. The Developer applied for a building permit from the Brookline Building Commissioner to construct the Proposed Structure. On April 8, 2005, the Building Commissioner issued a building permit for 71 Spooner Road.
16. By letter dated May 16, 2005, the defendants, George P. Fogg, III and Frances K. Fogg, by their counsel, requested that the Building Commissioner rescind the building permit. By letter dated May 31, 2005, the Building Commissioner refused to rescind the permit. On or about June 27, 2005, the Foggs appealed to the Town of Brookline Zoning Board of Appeals.
17. After public hearings on September 22, 2005 and October 20, 2005, the Zoning Board filed a decision to rescind the building permit, finding that the Proposed Structure exceeded the maximum floor-to-area ratio limitation. This appeal followed.
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.
In the instant case, the unfinished space on the second floor of the Proposed Structure lies between the ceiling beams of the first floor below and the joists of the floor above, according to the plans. The unfinished space does not lie directly below the roof rafters. The term attic, as defined by the bylaw, intends to include that extraneous empty space necessarily created by erecting a roof over the top floor of a building. The Brookline Zoning By-Law is not reasonably interpreted as to allow any unfinished space under the roof rafters of a building to fall under this definition and, thereby, be excluded from the gross floor area enumeration, even when the unfinished space does not contain a finished ceiling, but remains open up to the roof rafters.
Even if reasonable minds could differ, the Zoning Boards interpretation of the by-laws was reasonable and, therefore, must be given deference. The board interpreted the by-laws to define an attic as a space that necessarily lies directly above the top story of a structure. Applying this definition, the board found that the first floor was not the top story of the Proposed Structure, and therefore, the unfinished space is not an attic. Accordingly, I rule that the unfinished space is not an attic, within the meaning of § 2.01.3 of the Brookline Zoning By-Law.
Even if the unfinished space were directly below the roof rafters and not separated by floor joists above, this space is habitable space and, therefore, still does not fall under the definition of attic. The Developer has designed a complete two-story dwelling. The plans for the Proposed Structure depict the layout of walls, windows, and doors. The majority of the second floor is finished in that the rooms are identified and certain fixtures are given measurements and placements. The plans designate four rooms on the second floor as Unfinished Space. The rooms are still defined by wall framings.
The distinction of the unfinished space from the rest of the second floor is largely, merely the label. More than an extraneous empty space, necessarily created by the construction of a roof, this space is intentionally and conscientiously designed as four separate rooms. Even though the Developer may not propose to lay flooring or put up dry-wall at present, the design is unmistakably for the eventual finishing of four habitable rooms. The unfinished space exists on the same level as the finished rooms of the second floor. The largest room, rather than merely continuing the dimensions of the side of the house of the floor below, contains a rectangular, outcropping, bay-window-style, window pattern on one side. The smaller of the two larger rooms contains certain calculatingly placed wall framings, apparently for accommodating certain fixtures or appliances, which for now remain unidentified or placed in the plan. From the plan, the unfinished space is clearly designed for living, sleeping, or other human habitation, despite whatever intent the Developer may have for its immediate use. To rule otherwise would allow any developer in the Town of Brookline to circumvent the maximum floor-to-area ratio limitation by simply leaving unfinished a sufficient number of rooms in a building. Accordingly, I rule that the unfinished space is habitable space, within the meaning of § 2.08.1 of the Brookline Zoning By-Law.
Furthermore, the purpose of floor-to-area ratio limitations is to regulate the bulk and density of buildings. If a developer could leave his building design untouched and simply designate certain areas as unfinished, thereby, qualifying that space as an attic, this would undermine the purpose of the limitation. The floor-to-area ratio limitation would have no control over the bulk and density of a building, and a developer would not be forced to redesign a building that was overly bulky or dense. Therefore, the unfinished space must be included in the gross floor area of the Proposed Structure.
The Proposed Structure would cause 71 Spooner Road to exceed the maximum floor-to-area ratio limitation of § 5.20 and Table 5.01 of the Zoning By-Law. Accordingly, I rule that the Brookline Zoning Board of Appeals properly rescinded the building permit for a single-family dwelling on 71 Spooner Road.
For the foregoing reasons, this Court concludes that the decision of the Brookline Zoning Board of Appeals to rescind the building permit for 71 Spooner Road was proper. The unfinished space of the Proposed Structure is not an attic, within the meaning of the Zoning By-Law of the Town of Brookline. Therefore, that space must be included in the gross floor area of the Proposed Structure. As a result, the Proposed Structure exceeds the maximum floor-to-area ratio limitation of the Zoning By-Law. Accordingly, the decision of the Brookline Zoning Board of Appeals is AFFIRMED.
Judgment to issue accordingly.
Charles W. Trombly, Jr.
Dated: April 27, 2009
[Note 1] The Developer has begun construction of the Proposed Structure on 71 Spooner Road. As a result of the Board of Appeals decision, on November 4, 2005, the Building Commissioner issued a Stop Work Order concerning the Building Permit and 71 Spooner Road. Pursuant to that order, the Developer closed the partially constructed house and ceased further work.