Agenda - Planning Commission - 02/03/2011

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December 10, 2010 1 Volume 4 1 No. 23 Zoning Bulletin 1910 colonial revival home with six bedrooms and 3,812 square feet of living space. 81 Spooner Road conformed with local zoning. The home was situated in an S -10 residential zoning district. Section 5.20 of the city's zoning bylaw established a maximum floor area ratio ( "FAR ") 'requirement. That requirement provided that: "For any building or group of buildings on a lot the ratio of gross floor area to lot area shall not exceed the maximum specified" in the bylaw's dimensional requirements table. That table provided that a maximum .30 FAR was allowed for all single - family dwellings in the S -10 district. In February 2005, the city endorsed LLC's approval - not - required ( "ANR ") subdivision plan. The plan allowed LLC to divide 81 Spooner Road into two separate lots: a smaller 81 Spooner Road lot, comprised of 10,893 square feet of land, with the vintage home; and a larger land lot, known as 71 Spooner Road, with 11,648 square feet of area. LLC later sold 81 Spooner Road to the Verlanders. LLC retained 71 Spooner Road. LLC then obtained a building permit authorizing construction of a single- family home at 71 Spooner Road. Abutting property owners, Frances K. Fogg and George P. Fogg, III (the "Foggs ") filed an appeal with the city's zoning board of ap- peals (the "Board "). Among other things, the Foggs argued that LLC's overall plan to divide 81 Spooner Road resulted in two in- valid lots. The lot division resulted in 81 Spooner Road having a .36 FAR —above the maximum allowed in the S -10 district. The Foggs also argued that 71 Spooner Road was therefore also an in- valid lot because "its creation, as a result of LLC's ANR plan, had rendered 81 Spooner Road nonconforming as to the bylaw's FAR requirement." The Board rejected the Foggs' argument. On appeal, a land court judge agreed with the Foggs' argument. The judge ruled that 71 Spooner Road was an invalid building lot, "based on the common law infectious invalidity doctrine ...." LLC appealed. The Court's Decision: Judgment of land court affirmed. The Appeals Court of Massachusetts agreed with the Foggs' argu- ment. It held that "71 Spooner Road was infected by the resulting violation on the contiguous 81 Spooner Road parcel " — rendering 71 Spooner Road an invalid lot. With little explanation, the court concluded that: LLC could "not form a new building lot by dividing an existing conforming lot if as a result the latter [was] rendered nonconforming by such a division." 10 © 2010 Thomson Reuters