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Appeals Court backs limits on small-lot development in Newton

Posted by Leslie Anderson  February 22, 2013 05:45 PM

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In a decision that could affect hundreds of property owners in Newton, the Appeals Court ruled Friday 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.

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. In 2009, the city gave them a building permit, which was later revoked by the 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 will talk to his lawyer next week about appealing to the state Supreme Judicial Court and will make a decision shortly.

“We strongly disagree with the interpretation of the Appellate Court and the Land Court,” he said in a phone interview. “Unfortunately the ordinance language is a little bit vague.”

Although the Appeals Court decision does spend some time discussing grammar and the Land Court’s case included an affidavit from a Tufts University English professor, the court ruled that the language was meant to protect undersized lots that already had homes, not small lots that did not.

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 facts in the case that both sides agree upon.

The garage lot was deemed unbuildable by the city so was taxed at a lower rate despite it 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, also on an 8,400 square-foot lot, have been fighting their neighbors since the Chanskys first received a 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, as well as overdevelopment in the neighborhood.

Neither the Mauris nor the Chanskys could be reached Friday for comment.

Some aldermen are cheered by the decision.

Brian Yates, an alderman-at-large, worked on the 2001 zoning amendments that were the subject of the case. He said he testified for the Mauris and against his own inspectional services department, which issued the permit.

“That’s really fabulous,” Yates said of the decision. “We wanted to grandfather older, smaller houses on older, smaller lots.”

But that was never meant to allow a garage or other outbuilding to be replaced by a full size dwelling, he said.

“I felt betrayed and outraged,” 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 such similar permits have been issued since 2001, and no one is suggesting that all would be affected, but there are developments under way that could be.

The Mauris’ attorney, Hugh Starkey, 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’ attorney was not available for comment Friday, but Terrence Morris, their former attorney, said he feels the interpretation allowing a house to replace the garage is the only correct one.

The language was clear and 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.

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