Opinion
20-P-1030
08-30-2021
JAMES A. COHEN, trustee, [1] & others[2] v. CITY OF SOMERVILLE & another.[3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from a lengthy dispute between the plaintiff Comar Real Estate trust (trust) and the defendant city of Somerville (city) concerning the use of the trust's property at 299 Broadway (299 Broadway or property). The property was occupied by a Star Market supermarket from 1967 until February 2008. The use of the property as a supermarket was a legally conforming use in 1967 under the city's 1960 zoning ordinance, but became a preexisting nonconforming use as of March 23, 1990, when the city amended the zoning ordinance.
The primary issue now on appeal is whether the protection afforded to the preexisting nonconforming use of the property under G. L. c. 40A, § 6, was lost because the use was discontinued for more than two years. Acting on cross motions for summary judgment, a Land Court judge issued a judgment and declaration that the preexisting nonconforming use was not discontinued, and that the applicability of the city's current 2010 zoning ordinance to any future use would be governed by the three-part test set forth in Powers v. Building Inspector of Barnstable, 363 Mass. 648, 662-663 (1973) (Powers). The city appealed from the entry of judgment; the trust did not appeal or file a cross appeal.
The judge dismissed as moot the remaining counts of the complaint, which concerned the building inspector's and planning board's decisions with respect to the proposed use of the property by Ocean State Job Lot, because Ocean State Job Lot was no longer the proposed tenant.
Discussion.
1. Standard of review.
"We review a summary judgment record de novo to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.'" Trustees of the Beechwood Village Condominium Trust v. USAlliance Fed. Credit Union, 95 Mass.App.Ct. 278, 284 (2019), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "[W]here both parties have moved for summary judgment, the evidence is viewed in the light most favorable to the party against whom judgment [entered]," in this case, the city. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 699 (2012), quoting Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.App.Ct. 245, 248 n.4 (2010). We do not defer to the motion judge's decision on a motion for summary judgment, as no fact finding is involved. See 81 Spooner Rd., LLC, supra.
2. Discontinuance.
Under G. L. c. 40A, § 6, a prior nonconforming use receives some amount of protection. Section 6 "sets the floor for . . . protection in local zoning bylaws; it 'prescribes the minimum of tolerance that must be accorded to nonconforming uses, existing buildings and structures, and the existing use of any building or structure.'" Rourke v. Rothman, 448 Mass. 190, 191 n.5 (2007), quoting Nichols v. Board of Zoning Appeal of Cambridge, 26 Mass.App.Ct. 631, 632-633 (1988). The protection of G. L. c. 40A, § 6, however, is not absolute. A city may extinguish a nonconforming use where the use has been "abandoned or not used for a period of two years or more." G. L. c. 40A, § 6, third par. See Plainville Asphalt Corp. v. Plainville, 83 Mass.App.Ct. 710, 716 &n.9 (2013); Bartlett v. Board of Appeals of Lakeville, 23 Mass.App.Ct. 664, 668-669 (1987).
"Providing such protection commonly is known . . . as 'grandfathering.' We decline to use that term, however, because we acknowledge that it has racist origins." Comstock v. Zoning Bd. of Appeals of Gloucester, 98 Mass.App.Ct. 168, 172 n.11 (2020).
The city does not assert that the trust "abandoned" the protected nonconforming use of 299 Broadway, but contends only that a factual question exists whether it was "not used" for two years. "[T]he phrase 'not used,' as the Legislature employed it, contemplates 'a simple cessation of a nonconforming use for a period of at least two years, '" Orange v. Shay, 68 Mass.App.Ct. 358, 363 (2007), quoting Bartlett, 23 Mass.App.Ct. at 669, and is "intended to authorize cities and towns to extinguish otherwise protected nonconforming uses if particular premises are not in fact used for the protected purposes for a minimum of two years." Bartlett, supra.
There is no dispute that the use of 299 Broadway as a supermarket became a preexisting nonconforming use when the city adopted the 1990 amendments to its zoning ordinance, or that Star Market discontinued use of the property on February 1, 2008. It is further undisputed that Ocean State Job Lot (OSJL), the intended successor tenant, filed an application for a building permit more than two years later, on February 4, 2010, and that this application was denied a few weeks later. The trust subsequently filed an application for a special permit, which was denied.
The trust asserts, however, that OSJL attempted to submit a prior application within two years of Star Market's cessation of operations, but that the city refused to accept the application. The city concedes that if this is the case, then there has been no discontinuance. But the city asserts that a genuine issue of disputed fact exists regarding the trust's proof of the prior application. In particular, the city challenges the affidavit of an OSJL employee, Heath Parker, who attested that he applied for a building permit "before the end of January 2010," and that a "[b]uilding [d]epartment employee at the desk refused to accept the application . . . because there was a moratorium in place." According to the city, Parker's affidavit is disputed because "[t]here is no document from the building department supporting his claim." In the absence of any evidence to contradict Parker's affidavit, however, the judge concluded that the trust was entitled to summary judgment.
The city imposed a temporary moratorium for eight months in 2008 and 2009 providing that "no building permit, site plan approval, special permit, special permit with design review, special permit with site plan review, variance, or other permit . . . may be issued for any structure(s) or use(s) within the area" where 299 Broadway is located. The motion judge did not address whether the moratorium stayed the two-year period required to show discontinuance; however, if the trust can establish the filing of the prior application, the effect of the moratorium is immaterial.
After reviewing the record, we reach the same conclusion. Parker's affidavit was made on personal knowledge, set out facts which would be admissible in evidence, and "show[ed] affirmatively that the affiant [was] competent to testify to the matters stated therein." Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). See Eaton v. Federal Nat'l Mtge. Ass'n, 93 Mass.App.Ct. 216, 220-221 (2018). Contrast Ortiz v. Morris, 97 Mass.App.Ct. 358, 362 (2020) (affidavit not made on personal knowledge, regarding matters on which affiant would not be competent to testify, insufficient to create genuine issue of fact). The affidavit was sufficient to establish the attempt to file the application, as well as the apparent authority of the employee at the desk who refused to accept it. Although Parker did not name the employee, his affidavit provided adequate detail regarding the date he went to the building department and the employee's reason for refusing the application to be considered for summary judgment purposes. Contrast Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001) (affidavit based on "undefined discussions with unnamed persons at unspecified times" held "simply too amorphous" to satisfy rule 56 [e] standard). As the city "never submitted any contrary evidence" to place Parker's statements in dispute, Eastern Prods. Corp. v. Continental Cas. Co., 58 Mass.App.Ct. 16, 25 (2003), summary judgment for the trust was proper.
3. Successor use.
In her ruling, the judge also addressed the parties' dispute concerning the property's successor use. The trust argued that any successor use should be analyzed under the city's 1960 zoning ordinance, which was in effect when Star Market's legal use of the property began. The city contended that the three-part test articulated in Powers should be applied to determine whether the new use would constitute a "change or substantial extension" of the property's prior nonconforming use and would therefore be subject to the city's 2010 zoning ordinance. G. L. c. 40A, § 6, first par. See Oakham Sand & Gravel Corp. v. Oakham, 54 Mass.App.Ct. 80, 84 (2002) ("Once there is a change or substantial extension to a nonconforming use, the resulting use must comply with the current zoning bylaws to avoid becoming an illegal use"). The judge concluded that whether the city's amended 2010 zoning ordinance would apply to any successor use would be determined by the application of the Powers test, a conclusion reached by a panel of this court in a prior appeal. See Cohen v. Somerville, 87 Mass.App.Ct. 1112 (2015).
Under the Powers test, a court must determine (1) "whether the present use reflects the nature and use prevailing when the zoning by-law took effect," (2) "whether there is a difference in the quality or character, as well as the degree, of the present use," and (3) "whether the current use is different in kind in its effect on the neighborhood." Powers, 363 Mass. at 663, citing Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966).
The trust advanced arguments in its brief that the 2010 ordinance should not apply and requested that we issue a clarifying statement "that the protected use is a retail use," as defined by the 1960 zoning ordinance, and "any use fitting within [this] category . . . does not represent a change of use or a substantial extension of the use that is protected." However, the trust did not file an appeal or cross appeal. We decline the invitation to issue a clarifying statement, which would award the trust a more favorable result than it obtained in the Land Court. "[F]ailure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below." Fay v. Federal Nat'l Mtge. Ass'n, 419 Mass. 782, 789 n.12 (1995), quoting Boston Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 43 n.5 (1977).
Judgment dated June 9, 2020, affirmed.
The panelists are listed in order of seniority.