Spooner Road Decision Affirms Town’s Zoning By-law.
By Jim Conley • Aug 4th, 2008 • Email This Post to a Friend •
Print This Post
• Email this author
The Massachusetts Supreme Judicial Court has upheld Brookline’s Zoning By-law where it concerns the manner under which attic space is included in calculations of appropriate building size.
The Court has affirmed the decision of the Land Court, which essentially held that restrictions on the bulk of buildings relative to their lot size are not restrictions (if incidental) on the internal area of a residence; in this case the private development at 71-81 Spooner Road.
Click here to read the SJC opinion.
This is very bad news for the developers of the Spooner Road property, who will now have to defend their overbuilt structure situated on a very small lot. This, of course, is the developer who insisted that a second floor master bedroom should be counted as attic space. And the developer whose corporate attorney is Selectman Robert Allen.
Click here to read On Brookline’s Spooner Road coverage.
Update: It’s a point of confusion that the development company known as 81 Spooner Road, LLC is represented by two attorneys with the surname Allen. The reference to Selectman Allen above has to do with his role in creating the corporate charter for the LLC [read story here].
Former Selectman Jeffrey Allen has represented the developer in its appeal of the building department’s permit suspension.
Jim Conley is publisher of On Brookline.
Email this author | All posts by Jim Conley
VIGILANT NEIGHBORS
Let’s give credit to the neighbors who challenged the Building Commissioner on the Building Permit he had issued by appealing to the Town’s ZBA. And let’s credit the ZBA for its decision. And let’s credit Town Counsel for the legal steps taken on behalf of the ZBA decision. And further credit goes to Dick Benka (now a Selectman) and the City Solicitors & Town Counsel Association for their amicus briefs supporting the Town’s position. Of course the SJC deserves credit for the sound reasoning of its decision. If the developer had prevailed, much of the benefits of zoning under Chapter 40A would have been junked, not only for Brookline but other MA municipalities. But I want to call back the neighbors for another curtain call, to be applauded by our Town’s residents for their vigilance.
This brings to mind the Dexter Apartments that were built because a building permit had erroneously issued and it took private parties many years and great expense to prove this. 81 Spooner Road is far from the size of the Dexter Apartments, but it was not in compliance with zoning. Former Selectman Jeffrey Allen represented the developer. Fortunately the neighbors, the ZBA, the trial court and the SJC were there to see to it that Brookline zoning was properly applied to this development. Perhaps this will inspire other neighbors to challenge, when appropriate, developments in their neighborhoods without fear of being called NIMBIES or without fear of intimidation by the sometimes political aspects of our Town in zoning matters. (CAVEAT: It should be noted that the May 24, 2007, Town Hall Brawl resulted following the close of a contentious ZBA hearing, with neighbors and TMMs objecting to the then ZBA oral decision, which on a later rehearing the ZBA overturned.)
The SJC decision closes by putting the damper on the developer’s argument that a recent amendment to Brookline’s Zoning Bylaw supports its position:
“Finally, the developer argues that § 5.22.2 of the bylaw, which allows conversion by right of attic and basement space to habitable space after ten years, is arbitrary and capricious because there is no rational basis to make homeowners wait ten years to make the conversion. The town contends that the bylaw is designed to prevent developers from thwarting the floor-to- area requirements, although it allows families eventually to occupy greater portions of their home as the family grows. It does this by discouraging developers seeking to build houses out of scale with other houses in the neighborhood by removing some of the economic incentive to include oversized attics or basements designed to be converted immediately into use as habitable space. The town’s reasons are rationally related to the goal of the floor-to-area provisions of the bylaw, as well as to at least two general purposes of the zoning statute, namely, regulation of density of population and intensity of use. St. 1975, c. 808, § 2A. The developer has not sustained its burden of showing that the bylaw is invalid. See Van Sant v. Building Inspector of Dennis, 352 Mass. 289, 292 (1967).”
Perhaps the decision should have elaborated upon this further as there seems to be a suggestion in the penultimate sentence of this quoted paragraph that this amendment might have been troublesome to some of the Justices.
Brookline’s Zoning Bylaw undergoes frequent changes. Who triggered this particular amendment? Was it to provide a loophole? Was it to accommodate certain property owners? Perhaps a further amendment may be in order to eliminate this ten-year conversion rule. Consider a zoning proposal under discussion that could expand the traditional single-family residence rule that may come before this Fall’s Special Town Meeting and increase density of population and intensity of use added to the ten-year conversion rule.