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SJC Decision Bolsters Municipal Zoning Regulations

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A recent decision by the Supreme Judicial Court allows municipalities to use zoning to regulate or restrict development of the interior area of single family residences provided the regulation or restriction is “incidental” to the regulation or restriction of the exterior area. This decision could have wide ranging implications for development of single family homes, particularly in those municipalities seeking to regulate or restrict development of “McMansions.”

Decided on August 4, 2008, the case, 81 Spooner Road, LLC v. Town of Brookline, arose from a developer’s challenge to the zoning bylaw of the Town of Brookline. The developer proposed to develop a single family residence on a vacant lot at 81 Spooner Road, located in the S-10 zoning district, and obtained a building permit from the building commissioner. Neighbors challenged the building permit, claiming, among other things, that the proposed residence exceeded the district’s maximum floor-to-area ratio. Section 5.20 of the bylaw provides that “the ratio of gross floor area to lot area shall not exceed the maximum specified.” 

The building commissioner refused to revoke the permit and the neighbors appealed to the Zoning Board of Appeals, which found that the attic area should be included in habitable space because it was intended for such use. With the attic area included, the proposed residence exceeded the maximum floor-to-area ratio and the Board rescinded the building permit.

The developer sued the town in Land Court under General Laws Chapter 214, § 40, primarily challenging Section 5.20 of the zoning bylaw, which provides regulation by a maximum floor-to-area ratio. The developer claimed this bylaw was contrary to Section 3 of Chapter 40A, the State Zoning Act, which expressly provides that “[n]o zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building.” The Land Court upheld the Board’s decision. The developer appealed to the SJC, and the SJC affirmed the Land Court’s decision. 

To reconcile the seemingly contradictory provisions of the Zoning Act, which both prohibit regulation or restriction of the interior area of single family residences and also permit various zoning devices that necessarily affect interior areas, the SJC looked to the legislative intent behind Section 3, as well as to the power of a municipality to regulate population density and intensity of use. Finding that Section 3 identifies several means of regulating single family residences, including building setbacks, height, coverage and bulk, the SJC reasoned that because these zoning devices restrict the building size then, by necessity, they also affect the interior area of the building. The SJC found that to accept the developer’s argument that Section 3 prohibits all restriction of the interior of a single family residential structure would render invalid all of these common zoning devices, allowing a single family residence to be built without any regard to size, height, setbacks or lot coverage.

The SJC then looked at the term “bulk regulations” as further evidence that the Legislature intended these zoning devices to apply to the interior area of single family residential structures. Bulk regulations by their nature, reasoned the SJC, involve consideration of interior areas in that bulk can refer not only to width, length and height but also to gross floor area. As such, the SJC concluded that Section 3 permits consideration of interior area in bulk regulations.

The SJC then looked to the legislative history of Section 3 of the Zoning Act to resolve the ambiguity of both prohibiting and permitting regulation or restriction of the interior area of single family residential structures. The SJC determined that the purpose of the prohibition on regulation or restriction of interior areas of single family homes was to prevent anti-snob zoning, which would prohibit houses of a minimum size. The SJC found this prohibition goes to direct regulation or restriction of single family interiors and not to the incidental effects from regulation of single family exteriors. Accordingly, the SJC concluded that regulation of single family residences, including through bulk regulation such as floor-to-area ratio, is a proper exercise of the zoning power.

The SJC’s decision has been closely monitored by those involved with town planning because of the wide reaching impact it has on the ability of municipalities to “incidentially” regulate or restrict interior areas. At a minimum, a municipality that applies bulk regulation to single family residential structures may be able to restrict development of habitable attic or basement space if doing so would exceed the floor-to-area ratio. Additionally, municipalities looking to stop development of so-called McMansions may be able to rely on their zoning regulations to restrict both the exterior and the interior size. 

To date, only a handful of municipalities in the Commonwealth employ a floor-to-area ratio restriction in their zoning regulations. After this decision, we may see more municipalities looking to revise their zoning regulations in order to impose floor-to-area ratio requirements on single family residential structures, similar to the Brookline zoning bylaw. It remains to be seen how far municipalities will reach in regulating the interior area of single family residences.

This advisory was prepared by Robert A. Fishman, chair of Nutter’s Land Use Practice Group, with assistance from James G. Ward. For further information, please contact Bob, Jim or your Nutter attorney at 617-439-2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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