Doctor.JPGWhile many legal doctrines have poetic names (ancient lights, fruit of the poisonous tree), few are as vivid as “infectious invalidity.”  At its simplest, this land use doctrine holds that an owner of an existing lot that is legally non-conforming with zoning (say, because it doesn’t meet increased lot area requirements) who also owns adjoining land cannot lawfully create a new, fully-conforming parcel without first “curing” the non-conformity by using some of the adjoining land.  If there is not enough “extra” land to cure the non-conformity, the new lot is deemed “infected” – and non-buildable – even if it ostensibly conforms with all current requirements.  Unfortunately, new and apparently conforming lots are sometimes created in this manner and then conveyed, leaving the unwitting buyer with a non-conforming lot and the seller unjustly enriched.

In its recent decision in 81 Spooner Road, LLC v. Zoning Board of Appeals of Brookline (pdf), the Appeals Court addressed infectious invalidity in the context of floor-area-ratio requirements for single-family homes.  In doing so, it also made an important point about standing.

In Spooner Road, the eponymous parcel was a residential lot with a single-family home in the Town of Brookline.  Under the town’s zoning bylaw, the maximum floor-area ratio (FAR) for single-family homes – the ratio of a home’s floor area to the size of the lot – is .30.  The existing house on the existing lot easily met that ratio.  The plaintiff LLC divided the lot in two and, in a twist on the typical infectious invalidity scenario, kept the newly-created lot for itself and sold the remaining, now-smaller lot with the house on it to a third party.  The new lot ostensibly met all zoning requirements.  The remaining house lot, however, was now too small to meet the FAR limit.  Neighbors, the Foggs, challenged the LLC’s building permit for the new lot, and the Brookline zoning board of appeals revoked the permit.  The Land Court affirmed the board’s decision based on infectious invalidity, and the LLC appealed.

The Appeals Court first addressed the Foggs’ standing.  Under Massachusetts law, the Foggs as abutters had a presumption of standing that the LLC could rebut with affirmative evidence, shifting the burden to the Foggs to present affirmative evidence of sufficient harm to confer standing.  The LLC claimed that it had rebutted the Foggs’ presumption of standing, but the Appeals Court disagreed.  The court found that the LLC’s effort to rebut the Foggs standing, which consisted of pointing to Mr. Fogg’s deposition testimony in which he offered his own unsupported opinion of his harm, was not the type of affirmative evidence necessary to rebut the presumption.  In the words of the court, the “LLC cannot claim shelter under this rule and cause the burden to shift to George Fogg, simply by offering his opinion testimony and by drawing speculative conclusions from that testimony.”


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The Appeals Court reversed the Superior Court’s dismissal, for lack of standing, of the plaintiffs’ challenge to several variances granted to a defendant developer.  Those variances allowed the developer to demolish an existing one-story building on a lot adjacent to the plaintiffs’ four-story condominium building, and replace the one-story building with a new four-story condominium building.  On one side,