Posted by: Patricia Salkin | August 13, 2008

Town’s Zoning Law May Regulate Indirectly or Incidentally Interior Areas of Single Family Homes through Bulk Regulation of Maximum Floor-to-Area Ratios

A developer challenged the Town’s zoning bylaws that provide for a maximum floor-to-area ratio (the numerator is the gross floor area of a building and the denominator is the area of the lot on which it sits) to regulate land use in different zones, alleging it violates State statute which provides, in part, “No zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building…provided, however, that such…structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements…”  After the Town had granted the developer a permit to allow the construction of a house in an S-10 zoning district, where single-family homes on lots having a minimum area of 10,000 square feet were permitted, neighbors challenged the permit on several grounds including that the floor-to-area ration exceeded the maximum permitted under the zoning bylaw. Although the building commissioner declined to rescind the permit, the zoning board of appeals did so after concluding that the gross floor area of the house exceeded the allowable floor-to-area ratio.


The Supreme Court of Massachusetts concluded that plain language of the statute permits a zoning bylaw to regulate single-family residences through devices that operate against the exterior of such structures, and that such regulation will necessarily affect its interior area.   The Court noted that it has been recognized that the regulation of a building by its bulk may involve consideration of the interior area, and that “the regulation of the bulk of a building by considering its internal area, as through the use of a floor-to-area ratio, is a generally recognized and accepted principle of zoning.” Further, the Court concluded that the Legislature was aware of this when they inserted “size” and “bulk” as discrete terms in the statute, “and intended regulation by bulk to include consideration of internal area.”  To read the statute otherwise (e.g., as an absolute prohibition on regulation of the interior), said the Court, “would deprive the town of all ability to regulate ‘density of population and intensity of use’ created by single family homes,” and that it would “strip municipalities of the ability to achieve the purposes of zoning…” and that such as result would be illogical. The Court agreed with the Town that the statutory prohibition should be construed to prohibit only “direct” regulation of interior area, and not incidental effects of reasonable dimensional, bulk and density requirements. This said, the Court, preserves the Legislature’s policies against snob zoning, as well as another stated purpose of zoning, “to encourage housing for persons of all income levels.”



81 Spooner Road LLC v Town of Brookline, 2008 WL 2941366 (MA. 8/4/2008 ).


The opinion can be accessed at:

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