Brookline Special Town Meeting of November 12, 2002 — Case # 2359
A by-law provision that would allow single- and two-family dwelling units that were in
existence prior to the adoption of this by-law to convert an attic or basement space into
habitable space, but would not allow such conversion for dwelling units that came into
existence after the adoption of this by-law is disapproved and deleted because it violated the
uniformity provision of G.L. c. 40A, § 4. Section 4 provides in pertinent part that any
zoning by-law that divides the town into districts shall be uniform within the district for
each class or kind of structures or uses permitted.
May 29, 2003
Patrick J. Ward, Town Clerk
333 Washington Street
Brookline, MA 02445
RE: Brookline Special Town Meeting of November 12, 2002 — Case # 2359
Warrant Article # 14 (General)
Warrant Articles # 10 and 13 (Zoning)
Dear Mr. Ward:
Article 10 - I return with the approval of this Office the amendments to the town by-laws
adopted under this Article, except as provided below. On March 14, 2003, the Attorney General and
Town Counsel elected to proceed under Chapter 299 of the Acts of 2000, which amended
G.L. c. 40, § 32, by agreeing to extend the 90-day period for the Attorney General’s review for a
period of not more than an additional 90 days.
The amendments adopted under Article 10 make a number of changes to various provisions
of the town’s zoning by-laws. One such change deletes Section 5.22 in its entirety and replaces it
with a new Section 5.22, captioned, “Exceptions and Exemptions to Maximum Floor Area Ratio
(FAR) Regulations for Residential Units.” Section 5.22 (1) are the general provisions that apply to
exceptions and exemptions to the maximum floor area ratio for residential units and provides as
a. Any expanded unit (individual residential units subject to an increase in gross floor area
as per this Section) shall not be eligible to be subsequently divided into multiple units.
b. Any expanded unit shall not be occupied by more than two unrelated individuals.
c. Insofar as practicable, the additional floor area allowed pursuant to this Section shall be
located and designed so as to minimize the adverse impact on abutting properties and
ways, and interior conversions shall be considered preferable to exterior additions.
d. The provisions of this section shall be limited to existing single- and two- family dwellings
erected and as configured prior to the adoption of this section.
e. The Board of Appeals may allow for the conversion of attic or basement space not meeting the
requirements of paragraph 2 below under the provisions of paragraph 3 below.
We disapprove and delete the above underlined text in Section 5.22 (1) (d) because it is
inconsistent with the uniformity provision of G.L. c. 40A, § 4. [Disapproval # 1 of 1]. Section 4
provides in pertinent part that any zoning by-law that divides the town into districts shall be uniform
within the district for each class or kind of structures or uses permitted. The uniformity requirement
of Section 4 is based on the principles of equal treatment. A zoning by-law is to be applied
uniformly to all property located within a particular district, and all owners of properties in that
district must be subjected to the same restrictions for the common benefit of all. SCIT, Inc. v.
Planning Board of Braintree, 19 Mass. App. Ct. 101, 108 (1984), citing Everpure Ice Mfg. Co. v.
Board of Lawrence, 324 Mass. 433, 439 (1949).
We are mindful that there are exceptions to the uniformity provision of Chapter 40A,
Section 4. The SCIT case states that the Zoning Act sanctions certain exceptions to the uniformity
provision of Section 4. These exceptions are: Chapter 40A, § 6, relating to existing structures and
uses, and Chapter 40A, §§ 9 and 10, relating to special permits and variances. SCIT, 19 Mass. App.
Ct. at 108. “These exceptions aside, Section 4 does not contemplate, once a district is established and
uses within it authorized as of right, conferral on local zoning boards of a roving and virtually
unlimited power to discriminate as to uses between landowners similarly situated.” Id. at 108.
Therefore, in the absence of at least one of the foregoing statutory exceptions, it is not permissible to
single out one lot and impose restrictions upon that lot that are less onerous than those imposed upon
other lots similarly situated. Whitemore v. Building Inspector of Falmouth, 313 Mass. 248, 249
Implementation of the proposed by-law amendment would result in non-uniform treatment
of two dwellings identical in all respects but for the date they came into existence. The above-quoted
text in Section 5.22 (1) (d) would allow single- and two-family dwelling units that were in existence
prior to the adoption of this by-law to take advantage of the provisions of Section 5.22, including
the conversion of attic or basement space into habitable space, but would not allow such conversion
for dwelling units that came into existence after the adoption of this by-law. For example, in the
town’s S-10 District, where the floor area ratio is .3, a house that came into existence after the
adoption of this by-law with a floor area ratio of .25 would not be able to increase the gross floor
area to .3 by converting the attic or basement to habitable living space. However, a house that was in
existence prior to the adoption of this by-law with a gross floor area of .20 would be allowed to
increase the gross floor area to .3 by converting the attic or the basement to habitable living space.
The uniformity provision was enacted to avoid this type of unequal treatment.
In a memorandum dated May 21, 2003, town counsel states that the amendment adopted
under Article 10 “simply applies uniformly to all owners in the referenced zoning districts, except in
the case of certain buildings existing at the time of the amendment that became nonconforming
uses.” However, the text of Section 5.22 (1) (d) is not limited to pre-existing non-conforming uses.
Section 5.22 (1) (d) applies to all existing single- and two-family dwellings erected and as
configured prior to the adoption of this section. Moreover, the provisions of Section 5.22 do not
purport to create non-conforming uses. For these reasons, we disapprove and delete the above-
underlined text in Section 5.22 (1) (d).
In approving the remaining portions of the amendments adopted under this Article, we call
your attention to what we believe are typographical errors. Section 5.22 (2)(a) of the proposed by-
law amendments pertains to exterior modification to structures to accommodate conversions and
refers to a facade and sign design review process found in Section 7.06, paragraph 1; however, it is
Section 7.03, paragraph 2 of the town’s existing by-law that pertains to facade and design review.
Section 7.06 (3) of the proposed by-law amendments requires that all regulated facade alterations be
subject to the design review process of Section 7.06, paragraph 1; however, as stated above, Section
7.03, paragraph 2, pertains to the facade and design review process. We suggest the town address
these typographical errors at a future town meeting.
We remind the town that in our letter dated March 14, 2003, we returned the amendments
adopted under Articles 13 and 14 with the approval of this Office.
Note: General Laws Chapter 40, Section 32, requires that both general and zoning by-laws and
by-law amendments, once approved by the Attorney General, must be posted and published
by the Town Clerk before they may be deemed to take effect. Once this statutory duty is
fulﬁlled, (1) general by-laws and amendments take effect on the date that these posting and
publishing requirements are satisﬁed unless a later effective date is prescribed in the by-law,
and (2) zoning by-laws and amendments are deemed to have taken effect from the date they
were voted by Town Meeting, unless a later effective date is prescribed in the by-law.
If the Attorney General has disapproved and deleted one or more portions of any by-law or
by-law amendment submitted for approval, only those portions approved are to be posted and
published pursuant to G.L. c. 40, § 32. We ask that you forward to us a copy of the ﬁnal text of
the by-law or by-law amendments reﬂecting any such deletion. It will be sufﬁcient to send us a
copy of the text posted and published by the Town Clerk pursuant to this statute.
Very truly yours,
THOMAS F. REILLY
by: Kelli E. Lawrence, Assistant Attorney General
By-law Coordinator, Municipal Law Unit
1350 Main Street, 4th Floor
Springfield, MA 01103-1629
(413) 784-1240, x 117
pc: Town Counsel