Newton’s small lots create a big debate

Call to rewrite code goes before aldermen

It comes down to a fight over four words.

To some Newton residents and civic organizations, the insertion of the words “adjoining,’’ “and,’’ and “subject’’ (twice) into a section of the city’s complex zoning code would transform the character of their neighborhoods and crowd pockets of green space with homes.

But according to real-estate lawyers, developers, and Newton’s zoning inspector, the change would help clarify the city’s long-standing practice about when it’s appropriate to build a house on an undersized lot.


The proposed change will be discussed by the Board of Aldermen’s Zoning and Planning Committee over the next few months. Adding the words to the code would allow property owners to develop a vacant lot sitting next to their home even if it is smaller than the 10,000-square-foot minimum generally required in Newton’s single-family neighborhoods.

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The issue is stoking divisions in Newton, where developable land is at a premium and the housing market seems to be on the rebound.

Residents are calling their aldermen, sending letters of opposition, and threatening legal action if building is allowed on lots that many consider their neighbor’s side yards. Developers are trying to rally support from residents who own undersized lots, warning them that their investment or retirement nest egg could be at risk if the change is blocked.

In Waban, a developer building a house on an undersized lot next to the village’s library has planted a giant yellow smiley face on the top floor of the home’s shell, a sign interpreted by neighbors as a taunt.

“Everybody lives in the suburbs because you want space,’’ said Theresa Fitzpatrick, president of the Waban Improvement Society, discussing the debate over the house on Pine Ridge Road. The city should resist changing its zoning codes, and keep homes from being built so close together, she said.


The commissioner of Newton’s Inspectional Services Department, John Lojek, defended his decisions to allow homes to be built on small lots.

“It is a very NIMBY thing,’’ Lojek said, suggesting critics are taking a “not in my backyard’’ viewpoint. “I think I interpreted it correctly.’’

In single-home residential districts, Newton’s zoning allows construction if the lot is at least 10,000 square feet, and the house would be set back far enough from the property lines.

But there are exceptions in the zoning code for smaller lots - and that’s where the debate hinges.

A property owner who has two adjacent lots, including one that is between 5,000 and 10,000 square feet, can build on the smaller lot as long as there is a house on the other lot, and the setback conditions are met, according to Lojek.


But some residents and aldermen disagree. They say that the code, adopted in 2001, was meant to allow property owners to renovate and upgrade their homes on undersized lots. A new house can be built only if there was already a house on the smaller lot, they say.

‘It is a very NIMBY thing. I think I interpreted it correctly.’

John Lojek, Newton’s Inspectional Services Department head

“We meant to grandfather existing homes on substandard lots,’’ said Alderman Brian Yates, who participated in the discussion of the code a decade ago. “We’re not exempting vacant lots.’’

The issue has surfaced because of a recent case in the state Land Court. It involved the owners of a Bradford Road property who received a permit from Lojek to build a house on their adjacent lot of less than 10,000 square feet, where their home’s garage was located. A neighbor took the owners to court.

In late December, after receiving affidavits from a former alderman who helped develop the code and an English professor from Tufts University who tried to decipher its wording, the Land Court judge revoked the building permit.

The neighbors who filed the lawsuit declined to comment on the ruling.

But Ernie Rogers, a developer who was going to buy the undersized lot on Bradford Road to build a home for himself, said the court decision will be appealed.

If the code isn’t changed, property owners and developers could lose $400,000 to $800,000 on these lots, Rogers said.

“You’ve got to look at how it affects people’s lives,’’ he said.

The controversy has prompted Newton to consider what it is trying to achieve with the zoning code, and whether the wording needs to be altered, said Ouida Young, the city’s associate solicitor.

Young said she believes Lojek has interpreted the code correctly, but the Land Court decision has put the language back in the spotlight.

“The cure is to have that discussion now,’’ Young said.

Here’s the disputed section of the zoning code, with proposed new language added in italics: “If the subject lot was held in common ownership at any time after Jan. 1, 1995, with an adjoining lot or lots that had continuous frontage on the same street with the subject lot and such adjoining lot had on it a single-family or two-family dwelling.’’

But adding the few words to the code so that it conforms to Lojek’s interpretation would open up hundreds of undersized lots for new homes, according to Srdjan Nedeljkovic, president of the Newton Highlands Neighborhood Area Council.

“It would be a massive increase in density,’’ Nedeljkovic said. “The city needs to follow its own zoning laws.’’

Newton officials said there are about 400 undersized empty lots scattered throughout the city. But not all of them will or could be developed, Lojek said.

Some have pools on them, others lack sufficient frontage along the street, some property owners don’t want to develop their lot, and others may not know their lot can be developed, Lojek said.

Lojek said he has allowed a few dozen homes to be built on undersized lots in the past six years.

In some cases the undersized lot was essentially the same size as neighboring properties, but the surrounding homes are older and people have gotten used to them, he said.

Lojek said he has informed the developers building on undersized lots on Pine Ridge Road and Goddard Street about the Land Court decision, and the issue in front of the aldermen. The developer on Pine Ridge continued to build. On Goddard Street, crews ceased construction after they put up the foundation slabs on two separate undersized lots.

“Different people are making different decisions,’’ he said.

Lojek hasn’t issued any more permits on undersized lots.

In the meantime, aldermen are faced with a decision.

“It’s a question of how dense you want the community to be,’’ said Alderman Lisle Baker.

Deirdre Fernandes can be reached at deirdre.fernandes@ globe.com.