Opinion
11-P-859
02-21-2012
SCOTT G. HAMBLEY & another v. STUART L. DALZELL & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Approximately eighteen years after the plaintiffs moved into a home adjacent to the property at issue, they filed a request with the Rowley building inspector asking him to determine that the property could not be used as a machine shop and to require that any use comply with the Rowley zoning by-law. The building inspector issued a written decision declining to do so, and the plaintiffs appealed to the zoning board of appeals of the town of Rowley (board) pursuant to G. L. c. 40A, § 8.
Before 1977, the property was used as a machine shop. On March 11, 1977, a new owner purchased the property and began using it as the office and warehouse of a publishing business.
The activities at that time include sales, marketing, accounting, proofreading, editorial review, preparation of cameraready copy and artwork, and warehousing of books. No printing or binding of hardcover books took place on the premises. The publishing business closed down between December, 1985, and November, 1986, and the property was unused from November, 1986, to July, 1988, when Paul D. Costain and William P. Sweeney purchased it and began to run a machine shop called PDC Machine, Inc. In 2006, Costain and Sweeney sold the property to defendants Stuart L. and Katerine L. Dalzell, who in turn leased it to defendant Polaris Sheet Metal, Inc., which also operates a machine shop.
After several days of hearings, the board ruled that the property was protected from enforcement of § 4.4 of the Rowley zoning by-law, which prohibits the current use, as a prior nonconforming use pursuant to G. L. c. 40A, § 6, and § 5.1 of the Rowley zoning by-law. The board determined that the current machine-shop use is not substantially more detrimental to the neighborhood than the prior use as a publishing business, and that no abandonment of commercial use of the property had occurred. The plaintiffs appealed to the Superior Court.
Pursuant to § 5.1 of the Rowley zoning by-laws, a prior nonconforming use is abandoned if the property is unused for two years or more, and an abandoned nonconforming use may not be resumed. Here, the property was unused for twenty-one months.
After a jury-waived trial, in a memorandum of findings and rulings, the judge found that the 'nature and purpose' and 'quality and character' of the property's use had changed when, in 1988, it ceased to be used as a publishing business and began to be used a machine shop. This change in use occurred after the enactment of the zoning by-law at issue. On the facts as found, and citing Davis v. Zoning Bd. of Appeals of Chatham, 52 Mass. App. Ct. 349, 355- 360 & n.11 (2001), and Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 72-74 (2003), the judge affirmed the board's decision, stating:
'[A] rational board could still conclude [that] the existing machine shop use is not substantially more detrimental to the neighborhood than was the former publishing house use. The [b]oard has discretion to allow or deny a use even if the facts found by the court could support an opposite result. Thus [,] though the court might rule differently on the evidence, I must and do sustain the [b]oard's action, because I find it to have a basis in record fact, and to be within its discretionary authority as a matter of law, consistent with its role in community planning.'
The plaintiffs then filed a motion to alter or amend judgment, which was denied, and the current appeal followed.
As part of the judgment, the judge also issued a permanent injunction enjoining the defendants from erecting or retaining a 'spite' fence. 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.
Discussion. In reviewing the judge's decision to affirm the board's ruling, '[w]e accept the trial judge's findings of fact unless they are clearly erroneous, but we determine independently the application of the law to those facts.' Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct. 481, 486 (2009), citing Steamboat Realty, LLC v. Zoning Bd. of Appeal of Boston, 70 Mass. App. Ct. 601, 602 (2007).
'A prior nonconforming use is a use that had been allowed as a matter of right under the prior zoning by-laws, but is not allowed under a new by-law.' Barron Chevrolet, Inc. v. Danvers, 419 Mass. 404, 408 (1995). Such uses are entitled to protection from enforcement of the new by-law. See G. L. c. 40A, § 6. But when a change is made in the use of a property, there are three tests for determining whether the changed use is entitled to continuing protection. See Cape Resort Hotels, Inc. v. Alcoholic Lic. Bd. of Falmouth, 385 Mass. 205, 212 (1982). Those tests are: '(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. (3) Whether the current use is different in kind in its effect on the neighborhood.' Bridgewater v. Chuckran, supra at 23 (internal citations omitted). To qualify for continuing protection, a changed use must be substantially similar to the previous nonconforming use under all three of these tests. See Green v. Board of Appeals of Provincetown, 26 Mass. App. Ct. 469, 472 (1989), S. C., 404 Mass. 571 (1989) (reversing on issue of standing). Here, given the specific findings that the 'nature and purpose' and 'quality and character' of the use had changed when the property ceased to be used as a publishing house in 1986 and began to be used as a machine shop in 1988, the judge was required to conclude that the property lost its protection as a prior nonconforming use. See Green, supra. Accordingly, the judgment on the zoning dispute is reversed.
Judgment on the zoning dispute reversed.
Because we reverse the judgment on these grounds, we need not address the plaintiffs' argument in the alternative.
Remainder of the judgment affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),