936 N.E.2d 895
Mass. App. Ct.2010Background
- LLC obtained 81 Spooner Road and created 71 Spooner Road via ANR subdivision endorsed in 2005; LLC retained 71 Spooner Road for development.
- April 8, 2005: LLC received a building permit to construct on 71 Spooner Road; Foggs were not notified and did not appeal within 30 days.
- Foggs, abutters to both parcels, appealed to Brookline ZBA alleging FAR violations and nonconformities, including unfinished attic space at 71 Spooner Road.
- Land Court upheld the ZBA’s revocation of the 71 Spooner Road permit; judge also held 81 Spooner Road became nonconforming in FAR due to LLC’s ANR division.
- LLC appealed, challenging standing, timeliness, infectious invalidity, and the Land Court’s de novo review.
- Supreme Judicial Court affirmed, holding 71 Spooner Road invalid as a building lot infected by 81 Spooner Road’s nonconformity, and upheld ZBA decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek zoning relief | Foggs presumed aggrieved abutters. | LLC contends standing not established. | Foggs have standing; LLC failed to rebut presumption. |
| Timeliness of appeal to the board | Foggs lacked notice; timely appeal required. | Foggs should have timely known; otherwise timely under 40A. | Appeal timely; lack of notice preserved rights to challenge. |
| Whether unfinished attic space on 71 Spooner Road must be counted in FAR | Unfinished attic space not habitable; exempt from FAR. | Space intended for occupancy; not exempt as attic. | Disputed space included in FAR; not an exempt attic. |
| Infectious invalidity doctrine applying to building lots | 81 Spooner Road nonconformity could infect 71 Spooner Road. | Infectious invalidity should not render 71 invalid. | 71 Spooner Road infected by 81 Spooner Road nonconformity; invalid building lot. |
Key Cases Cited
- Alley v. Building Inspector of Danvers, 354 Mass. 6 (Mass. 1968) (infectious invalidity principle in lot divisions)
- 81 Spooner Road, LLC v. Brookline, 452 Mass. 109 (Mass. 2008) (SJC upheld FAR-based bylaw validity)
- Gallivan v. Zoning Bd. of Appeals of Wellesley, 71 Mass. App. Ct. 850 (Mass. App. Ct. 2008) (notice and fair opportunity in building-permit challenges)
- Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct. 999 (Mass. App. Ct. 1984) (standing requirements for aggrieved parties)
- Watros v. Greater Lynn Mental Health & Retardation Assn., 421 Mass. 106 (Mass. 1995) (abutter standing presumptions)