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Appeals Court backs limits on small-lot development in Newton

In a decision that could affect hundreds of property owners in Newton, the state Appeals Court ruled last week that landowners with two small lots cannot build a second house, despite building permits issued to the contrary.

There are about 400 small lots around the city that could be affected by the decision.

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The dispute arose after Bradford Road property owners Bonnie and James Chansky sought to sell their second lot, which has a garage on it, to a developer who planned to build a house. The city gave them a building permit in 2009, which was later revoked by the Massachusetts Land Court. Friday’s decision upholds the Land Court ruling.

The developer, Ernest D. Rogers of Lexington, who has a purchase-and-sale agreement with the Chanskys, said he is leaning toward appealing to the state Supreme Judicial Court but has a few weeks to decide.

“We strongly disagree with the interpretation of the appellate court and the Land Court,” he said Friday. “Unfortunately, the ordinance language is a little bit vague.”

The Land Court ruled that the ordinance’s language was meant to protect undersized lots that already had homes, not small vacant lots.

Rogers said he was planning to build an approximately 2,600-square-foot house, which he called “very modest,” for himself on the garage lot.

The two lots, which are each 8,400 square feet, have been in common ownership since about 1916, and have had a house on one and a garage on the other since about the same period, according to court documents. The garage lot was deemed unbuildable by the city, so it was taxed at a lower rate despite being identical in size. In newer zoning, house lots must be at least 10,000 square feet.

Unless Rogers appeals to the SJC, his new plan would be to buy both lots from the Chanskys and replace the existing home with something much larger than his original plan, he said.

“I’ll probably end up taking their house down and building a very large home,” said Rogers. “I’ll have to do that because of what I’ll have to pay for the property.”

Maureen and Ronald Mauri, who live next door on an 8,400-square-foot lot, have been fighting their neighbors since the Chanskys first received the building permit in 2009 to replace the garage with a house.

According to the Appeals Court decision, Maureen Mauri has testified that she is concerned about noise, light, views, her property’s value, and overdevelopment in the neighborhood.

Some aldermen were cheered by the decision. Alderman at Large Brian Yates, who worked on the 2001 zoning amendments that were the subject of the case, said he testified for the Mauris.

“That’s really fabulous,” Yates said of the decision. “We wanted to grandfather older, smaller houses on older, smaller lots’’ in the amended zoning bylaw, he said, not to allow a garage or other outbuilding to be replaced by a full-size dwelling.

“I felt betrayed and outraged” by the city agency’s decision to issue a building permit for the site, said Yates. “We had taken a clear stance, and somehow it had been subverted to the opposite meaning. Justice has been upheld. The clear intent of the Board of Aldermen has been upheld.”

A few dozen similar permits have been issued since 2001, and no one is suggesting that all would be affected, but there are developments underway that could be.

The commissioner of Newton’s Inspectional Services Department, along with some real estate lawyers and developers, recommended last year that the city rewrite its ordinance to specifically allow the development of a small neighboring lot.

But the discussion became sidelined, and it’s unclear whether the Board of Aldermen will take it up again after the Appeals Court decision, said City Solicitor Donnalyn Kahn.

Hugh Starkey, the Mauris’ lawyer, was happy with the decision and said it will have ramifications beyond this one dispute.

“It does indicate there are going to be implications for other similarly situated lots, whether they can be built on,” he said.

The Chanskys’ lawyer was not available for comment, but Terrence Morris, their former lawyer, said he feels the interpretation allowing a house to replace the garage is the only correct one. The language had been interpreted the same way for 10 years, he said.

“These small lots are predominantly located in the older, more urban areas of Newton,” said Morris. “People outside of Newton tend to think of it as literally the Garden City, where there is affluence. Contrary to that popular belief, there are sections that are modest.”

And some of those property owners were hoping to put the value of their second lot toward retirement or a child’s education, said Rogers, who added that the lots would be worth a minimum of about $400,000.

“That’s truly the saddest part of this,” said Rogers.

But others say it’s a victory for people like the Mauris who assumed a neighbor’s side yard was just that.

“I think this will set a lot of people’s minds at ease in the city,” said Yates.

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