JEREMIAH SILBERT and CYNTHIA SILBERT v. ENID STARR, JESSIE GELLER, ROBERT DEVRIES, MURRAY SHOCKET, KATHYRN R. HAM, ANNA CHRISTINA WOLFE, JONATHAN BOOK, and MARK ALLEN, as they are members of the TOWN OF BROOKLINE BOARD OF APPEALS

This case arises out of Plaintiffs’ Jeremiah and Cynthia Silbert (“the Silberts”) appeal from the decision of the Defendants, Town of Brookline Board of Appeals (“the Town”), denying their application for Special Permits to validate the existing floor area ratio (“FAR”) of their single family residence located at 106 Spooner Road. Alternatively, Plaintiffs seek declaratory relief to determine whether the current floor area ratio of their property conforms to the Town of Brookline Zoning Bylaws (the “Bylaws”), specifically, whether past attic and/or basement renovations that resulted in an increase in gross habitable area were permissible as-of-right.

The Silberts filed their complaint on December 28, 2007. The Town filed a Motion for Summary Judgment on February 16, 2010, along with a supporting brief, a statement of material facts and an appendix. The Silberts filed their Opposition to Motion for Summary Judgment on April 12, 2010 with a supporting memorandum and the affidavit of Jeremiah Silbert. The Town filed their Reply on May 7, 2010, as well as a Motion to Strike Portions of the Affidavit of Jeremiah Silbert, the Affidavit of Building Commissioner Michael Shepard, and supporting exhibits. Defendants’ Motion for Summary Judgment was argued and taken under advisement on May 18, 2010.

Based on the record, I find the following facts are not in dispute and justify Summary Judgment in favor of the Defendants:

1. The Plaintiffs, Dr. Jeremiah and Cynthia Silbert, have lived in the single family residence at 106 Spooner Road, Brookline, Massachusetts since 1968.

2. When the Silberts purchased the property in 1968, they purchased two adjacent lots: the lot with the existing residence fronting on Spooner Road (the “Spooner” lot), and the adjoining lot fronting on Middlesex Road (the “Middlesex lot”). At the time of purchase, the Spooner lot was 11,408 square feet and the Middlesex lot was 10,690 square feet. A Decision sketch showing the two lots is attached hereto.

3. The two lots lie in an S-10 zoning district, which allows single-family detached dwellings and requires a minimum lot size of 10,000 square feet. The Bylaw of the Town of Brookline imposes a maximum FAR for residential lots. The FAR is the ratio of the total floor area of the building to the size of the lot of that location. Except where otherwise stated in the Bylaws, the maximum FAR in an S-10 zoning district is a ratio of 0.3.

4. The Silberts made various improvements to 106 Spooner Road, including finishing their basement and attic, “long ago” which is “more than ten years ago.”

5. On May 18, 2005, an ANR subdivision plan of the two lots was recorded by the Silberts at the Norfolk County Registry of Deeds. That plan shifted square footage from the Middlesex lot to the Spooner lot, decreasing the size of the Middlesex lot and increasing the size of the Spooner lot, so that the new lots contained 10,027 and 12,208 square feet, respectively.

6. On February 15, 2006, the Silberts applied for a building Permit to make the attic and the basement of the house “non-habitable” in order to meet the FAR requirements for the 12,208 square foot lot that the house rests upon.

7. On March 21, 2006, the Building Department issued the Silberts a permit to “decommission” the attic and basement space. The Silberts never decommissioned the basement or the attic. The parties disagree whether the building permit is still valid.

8. On March 23, 2006, the Brookline Tab published a legal notice of a proposed zoning change to disallow decommissioning habitable space. This zoning change was adopted at a Town Meeting on May 23, 2006, and became effective May 30, 2006.

9. On May 19, 2006 the Silberts conveyed the Middlesex lot to their son in a deed to MCSilbert, LLC. At the time of the conveyance, the house on the Spooner lot had a gross floor area (“GFA”) of 4,671 square feet. Included in that figure are the basement and attic, which are 531 square feet and 1899 square feet, respectively.

10. On July 25, 2007, the Silberts applied for zoning relief from the Board of Appeals seeking special permits under Articles 5.22.3 and 8.02.2 of the Bylaw. They requested, alternatively, a determination that no relief was necessary, claiming that Section 5.22.2 of the Zoning Bylaw allows them to convert, as a matter of right, attic or basement space into habitable space as long as the increase in GFA does not exceed 150% of what is normally permitted under the Bylaw.

11. The permissible GFA for the house on the Spooner lot, based on a FAR of .3 and a lot size of 12,208 square feet, is 3,662 square feet.

12. A public hearing was scheduled, notice thereof published, and held on October 11, 2007. Present were the Silberts with counsel, and several neighbors who spoke in opposition and/or filed opposing memoranda.

13. On December 13, 2007, the Board of Appeals denied the Silberts’ request. They found that “relief by way of a special permit under Section 5.22.2 and 8.02.2 was not available, because the space in question was already habitable. They determined that this would not be an interior conversion as contemplated by the zoning by-law. In addition, the Board determined that even if relief by way of special permit was an option, the Petitioners did not meet the standards for granting a special permit under Section 9.05 of the by-law.”

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The matter before the court arises from the Silberts’ desire to build a house on the Middlesex lot. In order to build a house, a building permit is necessary; however, a building permit is unattainable on the Middlesex lot as a result of the Spooner lot’s nonconformity. If the Silberts can no longer use both the Spooner lot and the Middlesex lot in calculating the Floor Area Ratio (“FAR”) for the house on the Spooner lot, then the FAR becomes too large and therefore non-conforming. In other words, the building commissioner will not issue a building permit for a new house on the Middlesex lot because the lot is considered servient to the Spooner lot. For this reason, the Silberts petitioned the Board of Appeals to issue a special permit that would validate the FAR of the house on the Spooner lot, independent of the Middlesex lot, thereby leaving the Silberts free to apply for and be issued a building permit for the proposed house on the Middlesex lot. The Board of Appeals did not agree.

The Plaintiffs claim that the decision of the Board of Appeals is unreasonable, arbitrary and capricious and not in accordance with fact or law. In their response to the Town’s Motion for Summary Judgment, Plaintiffs also claim that genuine issues of material fact exist relative to the Board of Appeals’ denial of their application for Special Permits; for that reason, they claim that Summary Judgment is not appropriate.

The Town contends that it properly denied the Plaintiffs’ application, and that Summary Judgment is appropriate in this case because the only questions before the Court are questions of law, not fact.

DEFENDANT’S MOTION TO STRIKE PORTIONS OF THE AFFIDAVIT OF JEREMIAH SILBERT

As a preliminary matter, the Court grants, in part, the Town’s Motion to Strike Portions of the Affidavit of Jeremiah Silbert, for the following paragraphs: Paragraph 5, because a property’s tax status is irrelevant to its current zoning status, and Paragraphs 22 through 28, which contain legal conclusions that are inadmissable. The Court denies the Town’s Motion to Strike for the remaining paragraphs, but bears in mind the objections raised by the Defendant and will consider them in evaluating the weight of the evidence.

STANDARD OF REVIEW – SUMMARY JUDGMENT

“Summary judgment is appropriate where there is no genuine issue of material fact, and viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539 , 544, 806 N.E.2d 924 (2004).

In making a determination as to whether a genuine issue of material fact exists, the court must draw all reasonable inferences from the material accompanying the summary judgment motion in the light most favorable to the party opposing the motion, and resolve all doubt concerning the existence of a material fact against the moving party. Attorney Gen. v. Bailey, 386 Mass. 367 , 371 (1982). The party opposing summary judgment “cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207 , 209 (1976). In the present case, there is no dispute of material fact, only questions of law. Therefore, Summary Judgment is appropriate.

APPEALS PURSUANT TO G.L. c. 40A, § 17

G.L. c 40A § 17 provides in relevant part 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 make such other decree as justice and equity may require.” The Supreme Judicial Court has interpreted § 17 to require that a court hearing an appeal pursuant to G.L. c 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). The court is solely concerned with “the validity but not the wisdom of the board’s action.” Wolfman v. Bd. Of Appeals of Brookline, 15 Mass. App. Ct. 112 , 119 (1983). 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).

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ANALYSIS

Summary Judgment is appropriate in the present case because there are no disputes of fact before the Court; rather, the only questions to be decided are questions of interpretation of law. Summary Judgment is granted to the Defendants because the Plaintiffs cannot succeed based on rule of law set forth below.

I. THE SILBERTS CANNOT CREATE A NON-CONFORMITY IF POSSIBLE TO AVOID IT WITH AN ADJACENT, SERVIENT LOT.

It has been established in the Commonwealth that, for purposes of zoning, two adjoining lots in common ownership are to be considered one lot in order to minimize non-conformities. Furthermore, a property owner cannot create a non-conformity if it is possible to avoid it with a servient lot. See, e.g., Vetter v. Zoning Bd. Of Appeal of Attleboro, 330 Mass. 628 , 630 (1953); Alley v. Building Inspector of Danvers, 354 Mass. 6 , 7-8 (1968); Shafer v. Zoning Bd. Of Appeals of Scituate, 24 Mass. App. Ct. 966 , 967 (1987); DiCicco v. Berwick, 27 Mass. App. Ct. 312 , 314 (1989). As applied to the matter at hand, this rule requires the Middlesex lot and the Spooner lot to be considered as one lot for purposes of zoning, because the lots are adjoining, there was common ownership, and because the Spooner lot is rendered non-conforming without the Middlesex lot. For this reason, the Middlesex lot is servient to the Spooner lot and must remain that way so long as the gross floor area (“GFA”) of the house is non-conforming by law.

Plaintiffs contend that they have a building permit to decommission the attic and/or basement of the house on the Spooner lot, which would render the Spooner lot conforming without the Middlesex lot, thus allowing a house to be built on the Middlesex lot. The Town disputes the validity of the building permit. This issue is irrelevant and it is not a matter that has been properly raised before this Court, because it is not a subject of the Silberts’ appeal, nor is it an aspect of the relief requested in the complaint; therefore, I make no ruling on this matter.

II. TOWN OF BROOKLINE ZONING BYLAWS PROVIDE NO RELIEF FOR PLAINTIFFS

The Silberts put forth the argument that Section 5.22.2 of the Bylaws, which allows an “as-of-right” increase in GFA, should allow them to label the existing space differently so that they may build on the Middlesex lot. [Note 1] This argument fails because the purpose and function of Section 5.22.2 is to allow homeowners to create additional habitable space. There is no language in the Bylaw that allows for a re-categorization of existing habitable space to decrease GFA and allow for subdivision of property.

The Silberts’ argument citing Section 5.22.3 of the Bylaw fails for the same reason. [Note 2] This section serves the purpose of outlining the specific conditions for conversion of interior space, previously uninhabitable, to habitable living space. In other words, this section dictates how one can convert a basement or attic into finished living space. In no place does this section allude to re-categorizing already habitable space (such as a finished basement) so as to decrease the GFA and allow for the subdivision of property.

The Board of Appeals properly relied on Section 8.02.2 of the Bylaws, which preserves the “conforming” classification of structures that have become nonconforming as a result of changes to the Bylaw. This section also authorizes certain changes to these “grandfathered” structures. However, courts have made clear that these changes and protections do not extend to structures that have been rendered non-conforming by way of the owner selling a portion of the lot, so as to leave the original lot non-conforming. See e.g., Norton v. Donahue, 2004 WL 1045455 (Mass Land Ct.) (“Under the doctrine of infectious invalidity a property owner may not create a valid building lot by dividing it from another parcel rendered nonconforming by such division”).

The Plaintiffs emphasize that the Town has taxed the Middlesex lot as a buildable lot. If a lot is taxed as a buildable, it is not necessarily a buildable lot from a zoning standpoint. The Court can give no consideration to a lot’s tax status when considering its disposition from a zoning standpoint; accordingly, the Plaintiffs can find no zoning relief in the tax history of the Middlesex lot.

CONCLUSION

The Plaintiffs seek relief by relying on zoning Bylaws that accord relief to homeowners who wish to expand a pre-existing non-conforming house that has been rendered non-conforming through no fault of the homeowners. However, the Plaintiffs in this case are responsible for creating the non-conformity on their lot; therefore, as a matter of law, no relief is available.

For the foregoing reasons, I hereby grant Summary Judgment in favor of the Defendant Board of Appeals.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: July 13, 2010