In Medford v. Marinucci Bros. Co. Inc. 344 Mass. 50, at 60, we said: "The distinction is between an increase in the amount of business, even a great increase, which does not work a change in use, and an enlargement of a nonconforming business so as to be different in kind in its effect on the neighborhood." Finally, in Bridgewater v. Chuckran, 351 Mass. 20, we said, at 23: "Recent cases have emphasized three tests for determining whether current use of property fits within the exemption granted to nonconforming uses. (1) Whether the use reflects the 'nature and purpose' of the use prevailing when the zoning by-law took effect.
Based on all the facts found, the judge ruled that the construction of the second garage was beyond the scope of the 1965 variance and constituted an unlawful expansion of a nonconforming use in violation of the Duxbury zoning by-law. The judge further ruled that Lovell's use of eighteen-wheel vehicles violated each of the three considerations set forth in Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966), for determining the lawfulness of an expansion of a nonconforming use. There was no error in the judge's rulings on the matter of the second garage.
Zoning By-Laws of the Town of Falmouth § 18 (amended through July 1, 1975). Bridgewater v. Chuckran, 351 Mass. 20 (1966), sets out the three tests this court has adopted to determine whether a current use of property is a protected nonconforming use: "(1) Whether the use reflects the 'nature and purpose' of the 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 use.
Like the board, the judge applied the three-part test enunciated in Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966), in analyzing whether the defendants' use of the Inn had changed from how it was used in 1967. Under that test, we consider: "(1) Whether the use reflects the 'nature and purpose' of the use prevailing when the zoning by-law took effect" in 1967; "(2) Whether there is a difference in the quality or character, as well as the degree, of use"; and "(3) Whether the current use is 'different in kind in its effect on the neighborhood'" (citation omitted).
Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653, 296 N.E.2d 491 (1973). See Bridgewater v. Chuckran, 351 Mass. 20, 23, 217 N.E.2d 726 (1966) ; Derby Ref. Co. v. Chelsea, 407 Mass. 703, 712, 555 N.E.2d 534 (1990). The burden is on the property owner to prove “the requisite similarity between the [proposed] use and the original nonconforming use” so as to have it protected as a prior nonconforming use.
The trial judge did not find the defendants' evidence credible; she instead credited the testimony of the towns' witnesses and found that the original operation, while perhaps expanded somewhat in 1957 and 1958, never expanded to include the entire parcel. She concluded that the defendants' operation failed all three prongs of the test set forth in Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966), and Powers v. Building Inspector of Barnstable, 363 Mass. 648, 653 (1973), and was thus an impermissible expansion of a prior nonconforming use. She went on to say that, even if she were to credit the defendants' evidence to the effect that the 1957-1958 operation involved the entire parcel, she would nonetheless conclude, based on the facts she found credible and as matter of law, that Hurlburt had abandoned the use of the entire parcel for sand and gravel removal after 1958.
The Land Court judge, hearing the matter de novo, Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558-559 (1954), conducted a two-day trial and ruled on March 8, 1999, that OS G "cannot continue its current operations at locus without obtaining a special permit from the planning board." The decision was based on the second and third tests ofBridgewater v. Chuckran, 351 Mass. 20, 23 (1966), and Powers v. Building Inspector of Barnstable, 363 Mass. 648, 663 (1973). The judge found that the use by OS G (1) constituted a change in the quality and character, as well as the degree, of the prior nonconforming use, given the increased area of the removal operations, and (2) that the current use is different in kind in its effect on the neighborhood.
Ibid. Applying the three-part test set forth in Bridgewater v. Chuckran, 351 Mass. 20, 23 (1966), the judge concluded that a substantial change in the nonconforming use of the property had occurred during the seven and one-half years of ownership of the property by Nauset. We conclude that the judge was warranted in reaching this conclusion from the evidence presented.
Still, the fact is that the Great Cedar Swamp came within the Corps' jurisdiction on July 1, 1977 and abuttors who built their houses thereafter are thus in a position analogous to those who have built in violation of zoning laws of which they knew nothing. They bear the risk that the controlling law will be uniformly enforced, see e.g., Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 678-679, 234 N.E.2d 727 (1968) (structures offensive to zoning by-law ordered dismantled despite economic waste argument); accord Carpenter v. Zoning Board of Appeals of Framingham, 352 Mass. 54, 223 N.E.2d 679 (1967); Bridgewater v. Chuckran, 351 Mass. 20, 217 N.E.2d 726 (1966), and it is thus not inequitable to enforce the law here for the general public good even though such enforcement carries with it some attendant risks for these abuttors. The owners of the cranberry bogs to the south are in still a different position.
No appeal was taken from the injunction. On appeal, the plaintiffs argue that, under the tests set forth in Bridgewater v. Chuckran, 351 Mass. 20 (1966), the judge was compelled to conclude that the use of the property as a machine shop is not protected from enforcement of § 4.4 of the Rowley zoning by-law as a prior nonconforming use. In the alternative, they argue that the only permissible nonconforming use is as a publishing business.